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Article 32 under the Indian Constitution– Right to the Constitutional Remedies

Article 32 offers the right to Constitutional remedies. It means that everyone has the right to move to high courts and the Supreme Court to acquire the fundamental rights secured. It is a well-recognized fact that the Supreme Court has the full power to issue writs exactly under the article. When it comes to High Courts, they have the same powers as the Supreme Court under Article 226. This article will discuss Article 32 under the Indian Constitution – The right to the Constitutional Remedies.

What Is The Concept And Major Purpose Of The Article?

The Indian Constitution’s Article 32 brings all rights for you to go to the Supreme Court to seek justice exactly when you feel that your right is unduly deprived. In fact, the apex court offers the authority to issue orders or directions for the implementation of rights offered by the Constitution. It is because they can be considered both the guarantor and protector of Fundamental rights.

Under this article, even the Parliament can entrust the other courts to exercise the power of the Supreme Court, offered that it is available within the Jurisdiction. If there is any amendment to the Constitution¹, all rights assured by this Article have never been suspended.

In simple words, the assured rights are guaranteed to people for the enforcement of basic rights by the article. It is because the law offers the desired right to people to approach directly the Supreme Court with no lengthy process of going to lower courts at first. It is essential to know that the key purpose of the Writ Jurisdiction under this article is the enforcement of Fundamental Rights.

What Is The Significance Of This Article?

Article 32 is called as soul and very heart of the Constitution by Dr B R Ambedkar. The Supreme Court includes this line in the fundamental structure doctrine. Also, it makes it evident that the right to move to the Supreme Court was never suspended apart from what is otherwise offered by the Indian Constitution. It implies that the right was suspended during the national emergency strictly under Article 359.

This article is invoked to acquire the remedy related to fundamental rights. It is truly not there another legal or constitutional right for various laws are obtainable.

This article makes the Supreme Court both the guarantor and defender of fundamental rights. Also, the power for issuing writs actually comes under the original Jurisdiction of the Supreme Court. It means that anyone may approach the Supreme Court for the remedy.

Remedies for the Enforcement of Rights

• The right to move to the Supreme Court by suitable proceedings for the enforcement of rights is guaranteed.
• The Supreme Court has the power to issue writs or orders, or directions
• With no prejudice to powers conferred on the Supreme Court by clauses (2) and (1), Parliament may, by the law, empower other courts to exercise within the local limits of its Jurisdiction.
• The right assured by this article is not suspended.

Nature of the Writ Jurisdiction

It offered under the article is called discretionary. Here are vital factors to guide the discretion as follow:

Factor  guiding this discretion	Meaning
Alternative Relief	Remedies actually sought in the lawsuit in alternative or different forms
Locus Standi	Right to provide the action or to be simply heard earlier to a court
Questions of Fact	An issue which involves the resolution of any factual controversy or dispute
Laches	A defence for the equitable action,  which bars recovery by the plaintiff due to the undue delay of the plaintiff, is looking for relief.
Res Judicata	A case which is decided

What Are The Major Kinds Of Writs?

There are roughly about five kinds of Writs provided under Article 32 of the Indian constitutions, which are listed below:

Habeas Corpus:

• Habeas Corpus, a Latin term meaning “you shall have the body,” is one of the most essential and fundamental writs available under Article 32. This writ is issued by the court to inquire into and secure the release of a person who has been unlawfully detained or imprisoned. It safeguards against arbitrary detention, protecting an individual’s right to personal liberty.
• The writ of Habeas Corpus is particularly powerful as it provides an expeditious remedy. When filed, the court immediately examines the grounds of detention, ensuring that no person remains unlawfully incarcerated. This writ becomes crucial in times of political unrest or during emergencies, as it prevents the abuse of power by the state or its authorities.

Quo Warranto:

• Quo Warranto, meaning “by what authority” in Latin, is a writ issued by the court to challenge the legality of a person holding a public office. It questions whether the individual has the legal right or authority to occupy the said position. The objective is to prevent unauthorized persons from usurping public offices, ensuring that such positions are filled by eligible candidates.
• The writ of Quo Warranto is significant in upholding the principles of transparency and accountability in governance. It helps maintain the integrity of public institutions. It ensures that those who hold public office do so lawfully and in accordance with the requirements of the Constitution and relevant laws.

Mandamus:

• Mandamus, which means “we command” in Latin, is a writ issued by the court to direct a public official, public body, or any authority to perform their legal duties and obligations. It is a remedy used when these entities fail to fulfil their statutory or constitutional responsibilities. The objective of the writ is to ensure that the administration acts according to the law and in the best interest of the public.
• Mandamus is an effective tool in enforcing administrative accountability, as it compels authorities to act when they neglect their duties. It promotes good governance and prevents arbitrary exercise of power, making it a crucial instrument in protecting citizens’ rights.

Certiorari:

• Certiorari, derived from Latin, means “to be informed” or “to be certified.” This writ is issued by the court to review the decisions of lower courts, tribunals, or quasi-judicial bodies to determine if they have acted beyond their Jurisdiction or contrary to law. The purpose of this writ is to correct errors of Jurisdiction and prevent miscarriage of justice.
• Certiorari acts as a safeguard against judicial or quasi-judicial authorities exceeding their authority, ensuring the proper application of the law. It allows the higher courts to intervene when lower bodies make decisions that are not in consonance with legal principles or are based on improper procedures.

Prohibition:

• Prohibition, signifying “to forbid” in Latin, is a writ issued by the court to prevent a lower court or tribunal from exceeding its Jurisdiction or acting in excess of its authority. The objective of this writ is to stop an inferior court or authority from conducting proceedings in matters beyond its legal competence.
• Prohibition helps maintain the hierarchy of courts and ensures that cases are heard by the appropriate judicial bodies. By preventing lower authorities from overreaching, Prohibition safeguards the sanctity of the judicial process and maintains the integrity of the legal system.

In conclusion, the five types of writs available under Article 32 of the Indian Constitution serve as powerful tools to safeguard the fundamental rights of citizens and uphold the rule of law. These writs play a vital role in preserving personal liberties, ensuring transparency in governance, promoting administrative accountability, and maintaining the proper functioning of the judiciary. The availability of these remedies reflects the framers’ commitment to establishing a just and equitable society in India.

Several grounds can lead to the dismissal of a writ petition:

• Non-filing of the writ in compliance with the court hierarchy.
• Principle of res judicata: When the matter has already been adjudicated and finalized by the court.
• Misrepresentation of facts: Presenting false information to seek the court’s intervention.
• Availability of an alternative remedy: If other suitable remedies are available, the Supreme Court may not entertain the petition.
• Inordinate delay: Filing the writ after an unreasonable delay can lead to its dismissal.
• Malicious petition: When the writ is filed with ill intent or malice.

Key differences between Article 32 and Article 226:

Aspect	Article 32 (Supreme Court)	Article 226 (High Courts)
Jurisdiction	Exclusive	Concurrent
Applicability	For fundamental rights	for fundamental rights
Territorial Jurisdiction	Throughout India	Limited to the state
Presidential reference	Not applicable	Applicable
Power to issue writs	Only five types	Wide range

Against whom a writ can be issued:

A writ can be issued against any authority, whether governmental or non-governmental, as long as it pertains to the violation of a fundamental right. Government officials, public bodies, and private entities performing public functions can be subject to writ jurisdiction.

Suspension of fundamental rights:

During a state of emergency under Article 352, the President can suspend the right to move the court for enforcement of fundamental rights (Article 359). However, certain fundamental rights remain inviolable even during emergencies, including Articles 20 and 21.

Recent developments under Article 32 of the Indian Constitution:

The dynamic nature of the Indian legal system ensures that interpretations and applications of Article 32 continue to evolve. Recent developments may include landmark judgments or legislative amendments aimed at strengthening the right to constitutional remedies.

Status of writs in other countries:

a)    United States:

In the United States, writs are not explicitly mentioned in the Constitution. However, they exist as common law remedies and are known as writs of habeas corpus, mandamus, prohibition, certiorari, and quo warranto.

b)    England and Wales:

England and Wales have a similar history of writs, which have significantly influenced Indian writ jurisdiction. Some writs, like habeas corpus and mandamus, still exist, while others have evolved into different remedies.

What Are The Amendments To This Article?

The clauses of anti-freedom are included in Article 32 of the 42nd Amendment. This kind of amendment is developed during the emergency time when it is passed for reducing the Jurisdiction of High Courts and Supreme Courts indirectly and directly for reviewing the application of basic rights.

The 43rd amendment of the Indian Constitution passed that repealed Article 32A instantly affected the emergency time is revoked. By following this amendment, the Supreme Court gained more power again to quash the state laws. In addition, the High Court received the power to question the constitutional validity of the central laws.

Conclusion:

All the constitutional remedies offered to the people are powerful orders equipped with an instant effect. Every writ is invoked completely against the state and is issued while PIL is filed. Article 32 of the Indian Constitution brings the right to move the Indian Supreme Court by precise proceedings for the enforcement of rights conferred by Part III of the Indian Constitution.

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1. https://legislative.gov.in/constitution-of-india/