Right to Constitutional Remedies (Article 32): Meaning & Provisions

The Right to Constitutional Remedies, are one of the most important fundamental right which provides the legal machinery to protect all other rights enshrined in Article 32. It empowers citizens to seek redress for the violation of rights, which is crucial for safeguarding liberties in a democracy. Additionally, the violation of Article 32 provides the ease of accessing the apex court of the country directly, bypassing the lower courts.

This article was referred to by Dr. B.R. Ambedkar as “soul of the Constitution and its very heart.” It allows courts to issue “writs” which can be used as a tool to enforce justice. The 5 writs are Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-Warranto. It is pivotal for justice, accountability, and the protection of individual rights. The Right to Constitutional Remedies is often referred to as the ‘Mother of Public Interest Litigation’ (PIL) in India. Ironically, the power of the High Court is comparatively wider as compared to the Supreme Court in terms of the right to constitutional remedies.

Constitutional Remedies refer to the legal mechanisms provided by the constitution of a country to safeguard and enforce the fundamental rights of individuals. These remedies empower citizens to seek relief from the judiciary when their constitutional rights are violated by the state or any other entity. These remedies serve as a crucial means of upholding the rule of law, ensuring accountability, and protecting the rights and liberties of citizens within a democratic society.

Right to Constitutional Remedies comes under Article 32 of the Constitution of India that confers the enforcement of the fundamental rights of an aggrieved citizen. It contains the following four provisions in this regard:

• The right to move to the Supreme Court for enforcement of Fundamental Rights is guaranteed.
• The Supreme Court shall have the power to issue directions, orders, or writs for the enforcement of any of the Fundamental Rights.
• The Parliament can empower any other court to issue directions, orders, and writs of all kinds, without prejudicing the same powers of the Supreme Court.
  • Here, the phrase ‘any other court’ does not include the High Court, because Article 226 has already conferred this power on the High Court.
• The right to move to the Supreme Court shall not be suspended, except as otherwise provided for by the Constitution.
  • President can suspend the right to move to any court for the enforcement of Fundamental Rights during a National Emergency.

The following points are to be noted with respect things the Right to Constitutional Remedies Article 32:

• This right makes the right to get the Fundamental Rights protected itself a Fundamental Right, thus making the Fundamental Rights real.
• Its significance made Dr. B.R. Ambedkar hail this right as the “heart and soul” of the Constitution.
• This provision makes the Supreme Court the defender and guarantor of Fundamental Rights.
• It vests the Supreme Court with ‘Original’ and ‘Wide’, but ‘Not Exclusive’ powers to enforce Fundamental Rights.
  • Original Powers – An aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal.
  • Wide Powers – The powers of the Supreme Court in this regard are not restricted to issuing orders or directions, but also writs of all kinds.
  • Not Exclusive Powers – The powers of the Supreme Court in this regard are concurrent with that of any other court as empowered by the Parliament for this purpose. e.g. the writ jurisdiction of High Courts under Article 226.
• Only Fundamental Rights, and not any other rights, can be enforced under Article 32.

• In the context of India, Writs refer to formal written orders issued by a court empowered for the purpose, which aimed at enforcing fundamental rights and correcting legal wrongs.
• In India, the power to issue writs is conferred only to the Supreme Court (Article 32) and the High Courts (Article 226).
• It is to be noted that as per the provisions under Article 32, the Parliament can empower any other court to issue writs, without prejudicing the same powers of SC. However, no such provision has been made so far.
• The features of ‘Writs’ in India are borrowed from the Constitution of the UK where they are known as Prerogative Writs.

A writ petition is a formal written application or request submitted to the Supreme Court or a High Court seeking the issuance of a writ. These petitions are filed by individuals, organizations, or entities to invoke the court’s jurisdiction to protect their fundamental rights, enforce statutory rights, or challenge governmental or administrative actions.

In India, the Supreme Court, the High Courts or any other courts empowered for the purpose can issue the following five types of writs:

• Habeas Corpus
• Certiorari
• Prohibition
• Mandamus
• Quo Warranto

• The literal meaning of this term is – ‘to have the body of’.
• It is an order issued by the court to a person who has detained another person to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free if the detention was found to be illegal.
  • Thus, this writ is the bulwark of individual liberty against arbitrary detention.
• This writ can be issued against both public authorities and private individuals. However, it is not issued in cases where:
  • detention is lawful,
  • the proceeding is for contempt of a legislature or a court,
  • detention is by a competent court,
  • detention is outside the jurisdiction of the court.

• The literal meaning of this term is – ‘we command’.
• It is a command issued by the court to a public official, asking him to perform his official duties that he has failed or refused to perform.
• It can be issued to a public official, a public body, a corporation, an inferior court, a tribunal, or the government for the same purpose.
• This writ cannot be issued:

• against a private individual or body,
• to enforce departmental instruction that does not possess statutory force,
• when the duty is discretionary in nature,
• to enforce a contractual obligation,
• against the President of India, the State Governors, and the Chief Justice of a High Court.

• The literal meaning of this term is – ‘to forbid’.
• It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
• Thus, while the writ of ‘Mandamus’ directs activity, the writ of ‘Prohibition’ directs inactivity.
• The writ of prohibition can be issued only against judicial and quasi-judicial bodies and cannot be issued against administrative authorities, legislative bodies, or private entities.

• The literal meaning of this term is – ‘to be certified’ or ‘to be informed’.
• It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
• This writ is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
  • Thus, while the writ of ‘Prohibition’ is only preventive, the writ of ‘Certiorari’ is both preventive as well as curative.
• It can be issued against judicial, quasi-judicial, as well as administrative authorities, but not available against legislative bodies, private individuals or bodies, etc.

• The literal meaning of this term is – ‘by what authority or warrant’.
• It is issued by the court to inquire into the legality of a claim of a person to a public office.
  • Hence, it prevents illegal usurpation of public office by a person.
• Unlike the other writs, this can be sought by any interested person and not necessarily by the aggrieved person.
• This writ can be issued only in the case of substantial public office of a permanent character created by a statute or by the Constitution. It cannot be issued in the case of ministerial or private offices.

The writ jurisdiction of the Supreme Court differs from that of the High Courts in three respects:

Writs, by their very nature, hold immense significance in the context of India. Some of their significance can be seen as follows:

• Provision for the Protection of Fundamental Rights – These writs give the individual a quick and efficient means of approaching the court in case his/her fundamental rights have been violated by the state or any other authority.
• Provision for Judicial Review – Through the writs, the power of judicial review is exercised on the acts of the government and administrative authorities or other bodies in order to ensure that the government act in accordance with law, in its jurisdiction and according to the constitution.
• Maintenance of Checks and Balances – Writs facilitate the courts' review of the decisions/orders of lower authorities, thus helping maintain a check and balance within the system.
• Prevention of Arbitrary Exercise of Authority – The writs like mandamus, prohibition, certiorari, and quo warranto function as preventive measures against the arbitrary exercise of authority by public officials or body. Thus, they ensure legality, fairness, and proper procedure in the process of decision-making.
• Ensuring Administrative Responsibility – Writs render administrative or judicial bodies responsible for their action or omission. They correct errors of law and excess of jurisdiction.

What is Right to Constitutional Remedies?

The Right to Constitutional Remedies mentioned under Article 32 of the Indian Constitution.

How do you think the right to constitutional remedies connects to the idea of judicial review?

The remedy of constitutional remedies (Article 32) provides citizens with access to remedies for the protection of fundamental rights, thus connecting it to the doctrine of judicial review, which grants power to the courts to check the validity of the laws and actions in relation to the Constitution.