As India is celebrating its 75th year of Independence, so it is really very important of its citizen to know the constitutional remedies which are given to them directly through the constitution.
The speech given by DR. Ambedkar clearly indicates its unique position in the constitution “if Was asked to name any particular Article in the Constitution as the most important – an Article without which this constitution would be a nullity – I could not refer to any other Article except this one………. It is the very soul of the constitution and the very heart of it.”
It is very important to mention that fundamental right is of no use if we don’t have the proper mechanism to make these available rights to the citizens. It is the remedies only which give the rights real meaning. There will be no use of those long list of fundamental rights without the constitutional remedies
In our constitution these remedies are available under article 32 by which we can approach to the supreme court in case of the infringement of fundamental rights, it is to be noted that article 32 is also one of the fundamental rights.
Article 226 also gives power to High courts to issue writs in case of the infringement of the fundamental rights.
Table of Contents
Provisions in the constitution
Article 32 contains 4 clauses: –
Clause 1 – “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”
It says that in case of breach of the fundamental rights by the state or other authorities as explained in article 12, one can directly approach the apex court i.e supreme court.
Supreme court has both original as well as concurrent jurisdiction in case of violation of fundamental rights
Original jurisdiction as an individual can directly approach to the supreme court without following the procedure of appeal whereas concurrent jurisdiction as in case of violation of fundamental rights we can file a writ in both the supreme court under article 32 and the high court of the state under 226.
However, it is said that relief is available in both the supreme court and the High court, it is held by the supreme court that one should first approach the high court in case of infringement of fundamental rights.
“In the Chandra Kumar case (1997), the SC ruled that the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic structure of the Constitution”.
Clause 2 – “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 of the rights conferred by this Part.”
These writs have been incorporated into the constitution of the united kingdom but it is not applied in a very strict sense in India as applied there.
Types of writs
1)Habeas corpus – The meaning of the word “Habeas corpus” is “to have the body”. This writ is used against unlawful detention of an individual or where there is no suitable reason and ground for the valid detention.
Therefore, one may approach either the high court or the supreme court for the enforcement of their fundamental rights.
2) Mandamus – it is a latine word which means “we command”. This writ is used by the Indian courts against public office holders in case they are not performing their work and duties in the manner prescribed.
This writ can be issued against the president as well as the Governor of the state and, cannot be issued against private organisations.
3) Prohibition – In literal terms, it means “to forbid”. This writ is issued by the higher courts to the lower courts in case they exceed their jurisdiction or work out of the jurisdiction.
4) Quo warranto – The literal meaning of the word is “by what authority or warrant”. This writ is used to resolve a dispute over whether a specific person has the legal right to hold the public office that he or she occupies.
5) Certiorari – the literal meaning of the term is “to be informed”. This writ is issued against the judicial or quasi-judicial body by the higher courts to transfer any case or to quash the case. It cannot be issued against the administrative or legislative or private body.
Clause – 3 “Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).”
This clause gives power to parliament which further empowers other courts to exercise the same power given to the supreme court in its local jurisdiction.
It is also very well connected with Article 139 in which parliament may by the law confers power to the supreme court to issue all the 5 writs along with the directions and orders.
Clause – 4 “The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”
This clause mentions the exception that on the proclamation of an emergency by the president under Article 352, the fundamental rights will be suspended therefore one cannot move to either the supreme court or high court under Article 32 and 226 respectively in case of violation of fundamental rights.
Article 32 gives incredible powers to the supreme court to issue writs in case of the violation of the fundamental right by the states or the public authorities. which is another way secures the rights of the person. Hence it is proved that where there are rights there are remedies.
Written By- Priya Kumari
Lovely Professional University