Posted on: August 30, 2020 Posted by: Arya Nanal Comments: 0
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The fundamental right of Right to Constitutional Remedies enshrined under Part III of the Indian Constitution has been stated under Article 32. Dr Bhimrao Ramji Ambedkar, the chief architect of the Drafting Committee and the man known as the ‘Father of the Constitution of India’, had affirmed that – “If I was asked to name any particular Article in this Constitution as the most important one – An Article without which this Constitution would be a nullity – I could not refer to any other Article except Article 32. It is the very heart and soul of the Constitution”. It has been described as such because it is the very pillar which supports the enforcement of fundamental rights embodied in Part III of the Indian Constitution.

 It grants the power to the Supreme Court to act as the protector of the Indian Constitution and the rights of the people. Article 32, thus, instils in the minds of the citizens of India, a feeling of security and assures them of the knowledge that their rights are protected. It also provides the proof of our democracy and allows for an effective mechanism to guarantee that the fundamental rights are upheld. It can be understood as ‘the Fundamental Right to Protection and Enforcement of Fundamental Rights’. Although, under Article 359 of the Constitution it is given that during the proclamation of an Emergency, Article 32 may be suspended by the President of India after presenting the Order before each House of the Parliament.

Article 32 consists of five writs, namely, Habeas corpus, Mandamus, Prohibition, Certiorari, and Quo-warranto as remedies to ensure enforcement of the fundamental rights. These prerogative writs bestow upon the Judiciary the power to declare any action or law of the Executive and Legislature respectively as null and void if it is found to be arbitrary or violative of the fundamental rights of the people. These writs can be issued by both, the Supreme Court and the High Courts (Article 226), although, the Supreme Court may issue these writs only in case of violation of fundamental rights whereas the High Courts may issue these writs in case of violation of fundamental rights as well as any other legal rights. The Supreme Court is not permitted to refuse to exercise its writ jurisdiction as it is the guarantor of fundamental rights whereas the High Courts’ power to issue writs is discretionary.

In this article we will understand the facets of Article 32 and discuss some of the landmark judgements delivered by the Supreme Court with respect to Article 32.

Writs: The Constitutional Remedies & Landmark Judgements issued under them

Article 32 states that – “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred under Part III is guaranteed. The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of any rights conferred by this Part”.

From the above statement, it can be deduced that the writ- issuing power of the Supreme Court comes under its “original jurisdiction” and so, a person can directly approach the Supreme Court in case of violation of fundamental rights, as opposed to by way of appeal.

Let us now understand the writs provided under Article 32.

(1) Habeas corpus

Habeas corpus literally means ‘to have a body’. This write ensures that no person is detained unlawfully. If there are no sufficient or valid grounds for detaining a person, then such a person can be set free. This writ has been put in place mainly to safeguard the fundamental rights of a person enshrined under Articles 19, 21 and 22 from wrongful or arbitrary actions on the part of the State or the Executive System. A person may file this writ in case he/she thinks that they have been detained unlawfully and such a person has the right to appear before the court and the judge can then decide if the imprisoned person has been arrested for proven guilt or if he can be released from custody.

In the landmark case of Additional District Magistrate of Jabalpur v. Shiv Kant Shukla (1976)(“Habeas corpus case”), the Supreme Court held, by a majority of 4:1,that this writ can be suspended during times of National Emergency, permitting unrestricted powers of detention.

Background: After the end of the war with Pakistan in 1971, a National Emergency was declared in the following year to prevent further damage to the economy. Anyone who was considered to be a political threat and who was capable of stirring the minds of the people; such as Atal Bihari Vajpayee, Morarji Desai, Jay Prakash Narayan, etc; was immediately taken into custody without trial under the Prevention Detention Laws. The detained persons filed writ petitions in the High Court challenging this. Most of the High Courts ruled in favour of the Petitioners, which pressured the Indira Gandhi-led government to move the Supreme Court on this matter which resulted in the ‘habeas corpus case’ judgement.

This judgement has been subject to mass criticism and has been heavily condemned by one and all. Some have even called this as the “darkest day for Indian democracy”. This judgement is an outright and blatant violation of basic human rights and the right to protection of life, personal liberty and freedom of movement of the citizens.

Due to these reasons, the judgement was recently overruled by the Supreme Court, with Justice D. Y. Chandrachud stating that the verdict was “seriously flawed”. A statement was also made by Justice Sanjay Kishan Kaul saying that – “The ADM Jabalpur case was an aberration from the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection”.

(2) Mandamus

Mandamus literally means ‘we command’. This writ is issued against a person who has the legal right and legal duty to perform certain mandatory ministerial tasks but fails to carry them out during his tenure of holding a position in a public office. This writ generally covers the subordinate/ inferior officers and courts that are refusing to perform their jurisdiction. It is usually issued to a lower court or government officer by a higher court. It is used to ensure that the persons in power duly discharge their public duties and do not misuse their authority. This writ is not permitted to be issued against the President, Governors of states, private bodies, or individual parties.

In the peculiar case of The Praga Tools Corporation v. C. V. Imanual (1969) and Sohanlal v. Union of India (1957), the Supreme Court held that writ of mandamus may be issued against a private party if such a party is found to have conspired with a public authority. This according to me is a fair judgement as the private body is interfering in the discharge of public duty and can therefore be held liable when ministerial tasks affecting the public rights are not effectively observed.

(3) Prohibition

While mandamus mandates ‘rightful activity’, prohibition mandates ‘rightful inactivity’. This writ is issued by a superior court to an inferior/subordinate court directing it to examine or discontinue a proceeding that does not lie within its jurisdiction. It is used to prevent a lower court from exceeding its powers and opposing the rules of Natural Justice. The Supreme Court has even observed that the writ of prohibition can be issued in cases of excess jurisdiction as well as cases in which there is an absence of jurisdiction.

In the case of Bengal Immunity Co. Ltd. v. State of Bihar & Ors, the Supreme Court noted that when an inferior tribunal takes over jurisdiction which does not belong to it then such an act is not valid and the writ of prohibition must be issued on it as a right.

(4) Certiorari

Certiorari literally means ‘to be made certain; certified’. It is also known as the “quashing order”. It is issued by a superior court to an inferior/subordinate court to quash its decision when it exercises wrongful jurisdiction and gives its verdict on a matter in which it was not competent to do so and thereby violates its limits of jurisdiction. Certiorari can therefore be issued only after the declaration of the verdict. It can be issued against administrative, ministerial, judicial and quasi-judicial orders.

In the case of T. C. Basappa v. T. Nagappa & Anr, the Supreme Court held that the writ of certiorari may be issued only in the case when a court exercises excess jurisdiction over a matter or when a court has no jurisdiction over a matter and still passes orders over such a matter.

In Hari Bishnu Kamath v. Ahmad Ishaque, the Supreme Court observed that a superior court is permitted to only quash the verdict given by an inferior court and leave that matter there. It is not allowed to substitute the verdict given by the inferior court by delivering one itself. The work of the superior court is simply destructive and nothing else.

(5) Quo-warranto

Quo-warranto means “by what warrant”. This writ is issued in the case when a court wants to look into the legality or claim of a person for holding a position in a public office. This writ is issued to prevent an individual from holding a position of power which he/she is not entitled to. If the person-in-position does not have the right to it, then such a person is expelled from the office. It can be filed by any person against a public administrator, despite the fact that his/her legal rights have been violated or not. The main objective behind the issuing of this writ is to prevent unlawful claiming by people over public offices. This writ cannot be issued against a private body, only State-owned bodies.

In G. D. Karkare v. T. L. Shevde, the Nagpur High Court noted that in issuing a writ of quo-warranto, the Petitioner does not seek remedy for violation of his own right or for the enforcement of a duty towards him, but simply questions the claim of an individual over a public office and whether such a claim is legally valid or not.

In Jamalpur Arya Samaj v. Dr D. Ram, the Supreme Court dismissed the writ petition of quo-warranto, asserting that it cannot be issued against an office of private nature. It was also held that the said office must be of ‘substantive’ character (‘It must have an independent existence’ – R. V. Speyer case).

Another landmark judgement was made by the Supreme Court with regards to Articles 32 and 226 in Bandhua Mukti Morcha v. Union of India (1984). In this case, a PIL was filed in the Supreme Court seeking the liberation of bonded labourers and the Court ruled in the favour of the Petitioners’ cause and ordered for their release. In this case the Supreme Court passed an important judgement under which it held that – “Where a persons or class of persons to whom legal injury is caused by violation of a fundamental right and such a person or class of persons is unable to approach the court of judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the court for relief under Article 32 and a fortiorari also under Article 226”. This judgement was delivered in a bid to make the fundamental rights more meaningful and accessible for the indigent, who due to lack of awareness, confidence, money, education and other resources are unable to enforce their fundamental rights.

Thus, in this article we have delved into the understanding and importance of Article 32, the heart and soul of the Constitution. We have discussed the prerogative writs provided as constitutional remedies under it. And, to comprehend the above aspects clearer and deepen your knowledge, various cases and landmark judgements have been cited and compiled in the article.










Arya Nanal
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Second Year BALLB student at ILS Law College

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