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Right to Constitutional Remedies UPSC CSE

Article 32 of Indian Constitution

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Summary of Article 32 of Indian Constitution

Fundamental Rights are contained in Part III from Articles 12 to 35 of the Indian Constitution; they include essential freedoms which are guaranteed to all citizens of India for individual growth. Article 32 or the Right to Constitutional Remedies gives individuals the right to seek redressal from the Supreme Court for violation of fundamental right in the form of Writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-Warranto. Unlike other Fundamental Rights, Article 32 is considered to be unique because although it is a guarantee against infringement of fundamental rights it has also been made a Fundamental Right itself. It also empowers judicial review, enabling the Supreme Court to evaluate the constitutionality of laws impacting Fundamental Rights. Dr. BR Ambedkar called it the ‘heart and soul’ of the Indian Constitution.

Uniqueness of Article 32: Article 32 unlike other Fundamental Rights contained in Part III of the Indian Constitution which are in the form of substantive rights, Article 32 provides a legal remedy for the infringement or violation of any of those rights. It can be said that the right to seek a remedy for infringement of Constitutional Right (Fundamental Rights) is itself a Fundamental Right. The Hon’ble Supreme Court has also held that Article 32 is a basic feature of the Constitution, as a result it cannot be amended through a constitutional amendment.

Writs: it is a concept borrowed from English Common Law system, described as ‘prerogative writs’ they were called so because they were issued under the name and prerogative (exclusive right) of the King. the Writs mentioned under Article 32 are as follows:

  • Habeas Corpus: means “to have the body of”. It is a safeguard against unlawful detention. It is issued in the form of an order by the Court to compel the appearance of a person who has been detained. The Court then examines the legality of the detention and if it finds the detention to be unlawful it orders the release of the person. However, the Court does not issue the writ, if it finds that: a) detention is lawful; b) detention is done by an order of a court competent to detain a person. c) the question of legality of the detention is outside its jurisdiction (applicable mostly in cases of High Courts).
  • Mandamus: means “a command”. It is issued by a Superior Court to a subordinate court, government official, public body or even a corporation asking the concerned entity to perform his/her official duties e.g. completion of a job etc. The Writ of Mandamus cannot be issued to: a) private individuals b) discretionary duty c) contractual obligations d) President, Governor or the Chief Justice of a High Court acting in his judicial capacity.
  • Certiorari: means “to be certified or informed”. It is issued by Superior Court (Supreme Court or the High Courts) to an inferior court for acting in excess or lack of jurisdiction or for committing an error in the interpretation and application of law. The Order of Writ of Certiorari can have the effect of: a) transferring a pending case b) quashing an order of the inferior court.
  • Quo-Warranto: means “by what authority”. It is issued by the Court to examine the legality of a claim of a person to a Public office. Basically a writ of Quo Warranto can be issued against someone who has wrongfully acquired a public office. However, it is important to note that such writs can only be issued in cases where the public office is of a permanent character
  • Prohibition: means “to prohibit or forbid”. It is issued by a Superior Court to a subordinate court from preventing the inferior court for acting in excess of its jurisdiction. Under Prohibition an order an only be issued to judicial or quasi-judicial authorities. It cannot be issued against: a) private individuals, b) private bodies, c) legislative bodies d) administrative bodies/entities.

Background of Article 32 of Indian Constitution

The Indian Constitution guarantees Fundamental Rights under Part III (Article 12 to Article 35) these are in the form of civil rights which ensure certain basic freedoms. The Fundamental Rights in India also fulfil the important function of giving safeguards to minorities, outlawing discrimination and protecting religious freedom and cultural rights. Fundamental Rights must not be read in isolation but along with directive principles and fundamental duties.

Introduction of Article 32 of Indian Constitution

Significance: Fundamental Rights are considered fundamental because they are the most essential for the attainment of the full potential of an Individual. They act as a check on the arbitrary powers of the government. A mere declaration of fundamental rights in the Constitution would be meaningless if an effective machinery for their enforcement was not put in place. This measure of enforcement is itself a fundamental right given in Article 32. Under Article 32, you can directly approach the Supreme Court of India without having to go to subordinate courts if your Fundamental Rights are violated.

Uniqueness of Article 32

Key Provisions

Article 32 has the following four provisions:

Writs

it is a concept borrowed from the English Legal system, described as ‘prerogative writs’ they were called so because they were issued under the name and prerogative (exclusive right) of the King. The Writs mentioned under Article 32 are as follows:

  1. Habeas Corpus: means “to have the body of”. It is a safeguard against unlawful detention.
    1. Produce Arrested Person: It is issued in the form of an order by the Court to compel the appearance of a person who has been detained. The Court then examines the legality of the detention and if it finds the detention to be unlawful it orders the release of the person.
    2. Limitations: However, the Court does not issue the writ, if it finds that: a) detention is lawful; b) detention is done by an order of a court competent to detain a person. c) the question of legality of the detention is outside its jurisdiction (applicable mostly in cases of High Courts).
  2. Mandamus: means “a command”.
    1. Issued to: It is issued by a Superior Court to a subordinate court, government official, public body or even a corporation
    2. Direction: Asking the concerned entity to perform his/her official duties e.g. completion of a job etc.
    3. Limitations: The Writ of Mandamus cannot be issued: a) to private individuals b) for discretionary duty c) for contractual obligations d) to President, Governor or the Chief Justice of a High Court acting in his judicial capacity.
  3. Certiorari: means “to be certified or informed”.
    1. Issued to Inferior Court: It is issued by Superior Court (Supreme Court or the High Courts) to an inferior court for acting in excess or lack of jurisdiction or for committing an error in the interpretation and application of law.
    2. Impact: The Order of Writ of Certiorari can have the effect of: a) transferring a pending case b) quashing an order of the inferior court.
  4. Quo-Warranto: means “by what authority”.
    1. A writ of Quo Warranto can be issued against someone who has wrongfully acquired a public office. However, it is important to note that such writs can only be issued in cases where the public office is of a permanent character
  5. Prohibition: means “to prohibit or forbid”.
    1. Issued to Subordinate Court: It is issued by a Superior Court to a subordinate court from preventing the inferior court from acting in excess of its jurisdiction. Under Prohibition an order can only be issued to judicial or quasi-judicial authorities.
    2. Limitation: It cannot be issued against: a) private individuals, b) private bodies, c) legislative bodies d) administrative bodies/entities.

Article 32 fortifies the concept of judicial review

it empowers the Supreme Court to evaluate the constitutionality of laws, executive directives, or policies that potentially infringe upon fundamental rights. This provision serves as a foundation in ensuring the protection of these rights by granting Court the authority to evaluate governmental actions for their adherence to the Constitution.

Comparison of Article 32 with Article 226

Article 226 also provides powers to the High Court to issue rights and protect fundamental rights. The powers under the respective articles differ on the following grounds:

Conclusion of Article 32 of Indian Constitution

Article 32 has rightly been called the "heart and soul of the Constitution" by Dr. B. R. Ambedkar. It is significant as it ensures that justice remains accessible to every citizen, irrespective of their socio-economic background. The Supreme Court is also considered the guarantor and guardian/protector of the Constitution, which puts additional responsibility on the Court while interpreting questions under Article 32, as a narrow or shallow interpretation of any of the rights under Part III can have a ripple effect across the nation affecting the rights and liberties of the Individuals.

Prelims PYQS of Right to Constitutional Remedies

With reference to the writs issued by the Courts in India, consider the following statements : (2022)
1. Mandamus will not lie against a private organisation unless it is entrusted with a public duty.
2. Mandamus will not lie against a Company even though it may be a Government Company.
3. Any public minded person can be a petitioner to move the Court to obtain the writ of Quo Warranto.
Which of the statements given above are correct ?
(a) 1 and 2 only
(b) 2 and 3 only
(c) 1 and 3 only
(d) 1, 2 and 3

Correct Answer :(d) 1, 2 and 3
Who/which of the following is the Custodian of the Constitution of India? (2015)
(a) The President of India
(b) The Prime Minister of India
(c) The Lok Sabha Secretariat
(d) The Supreme Court of India

Correct Answer :(d) The Supreme Court of India

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