Article 32: The Corner Stone of Democratic Edifice

“Article 32 -Heart and Soul of Indian constitution” – BR Ambedkar

Art 32 of the constitution deals with the remedies for enforcement of rights conferred by Part III of the constitution of India. The Part III of the Indian Constitution confers the certain fundamental right to Indian citizens, under Art 12 to Art 35. So basically the right to constitutional remedies (Art 32) is also a fundamental right.

Article 32: Remedies for enforcement of rights conferred by this Part

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

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.

3. Without prejudice to the powers conferred on the Supreme Court by clause ( 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 ).

4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Ubi Jus Ibi Remedium -‘Where there is a right there is a remedy’

It is a basic principle of law that in order to protect a right there is always a remedy. The Indian constitution provides ample rights, called as Fundamental Rights and to protect these rights, there is a remedy that checks the use and misuse of these rights. For this reason, these fundamental rights are made enforceable, i.e., one can approach the court for the non-enforceability of these rights. This right of the individual to approach the court is given under Art 32, which says that any individual, whose fundamental right has been encroached, can reach directly to the Supreme Court for enforceability of such fundamental right. Moreover, Art 32 also empowers the Supreme Court to issue writs for proper enforcement of fundamental rights. Due to this power of the Supreme Court, the Supreme Court is called as ‘protector and guarantor of fundamental rights’.

The same power to issue writs is given to the high court also under Art 226. So, one can either approach to High court or Supreme Court. It is not compulsory to go to the high court before approaching to Supreme Court but should have sufficient reasons to do so.

There is a slight difference between (Art 32 and Art 226) Supreme Court and the High court on the power to issue writs. The Supreme Court can issue writs only when the fundamental right is violated or encroached upon, whereas the high court can issue fundamental rights as well as for any other purpose e.g. like an administrative tribunal.

Writ Jurisdiction

In India, the power to issue writs has been vested in the Supreme Court and the high court. It is kind of a speedy remedy available for those individuals, whose fundamental right has been curtailed, to reach court without going into the technicalities of the detailed procedure. But this writ is a discretionary remedy. The Supreme Court under Art 32 can issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto for protecting fundamental rights.

Writs:

A. Habeas Corpus:

Habeas Corpus is Latin phrase which means ‘you must have the body’. It can be defined as the judicial order issued by the Supreme Court or high court by which a person who is confined by any public or private agency may secure his release. It can be filed by any person on behalf of the person detained or by the detained person himself. In Ichhu devi v. Union of India, the court held that there is no need of following a strict rules of pleading in matter of this, in fact a postcard is sufficient to be considered as petition. Similarly, in Sunil Batra v. Delhi Admin, letter by a convict alleging inhumane torture towards a fellow convict is considered sufficient petition.

Res Judicata and Constructive Res Judicata have no application in case of writ of Habeas Corpus.

B. Mandamus:

Mandamus is issued in the form pan order by the supreme court or high court to any constitutional or statuary or non statuary body to do or to forbear to do something, which the agency is obliged to do or not to do and is in the nature of a public duty.

Conditions for grant of mandamus are:

1. There must be a public duty. In Gujarat State Finance Corp. v. Lotus Hotels Pvt. ltd., the Supreme Court held they a duty private in nature and arising out of contract between the government instrumentality and private entity was enforceable through this writ.
2. There must be specific demand and refusal.
3. There must be a clear right to enforce the duty.
4. The right must be subsisting on the date of the petition.
5. All other grounds on which certiorari and prohibition can be issued.

C. Prohibition:

Writ of Prohibition is a judicial order issued by the Supreme Court or a high court to any constitutional, statutory or non-statutory agency to prevent these agencies from continuing their proceedings on the following grounds:

1. excess or lack of jurisdiction,
2. abuse of their jurisdictions,
3. in violation of principle of natural justice,
4. in contravention of law of the land,
5. Fraud,
6. Infringement of fundamental rights.

D. Certiorari:

Certiorari is Latin phrase which means ‘to inform’. It is a judicial order directed by the Supreme Court or the high court to any constitutional body, statutory body or non statutory body or to a person. This writ is directed for requiring the records of any action to be certified by the court. And can also be issued for quashing the administrative actions, as done in AK Karipak v. Union of India, by quashing the action of the selection board.

There are certain grounds where the writ of certiorari can be issued, which are as follows:

1. Lack of jurisdiction,
2. Excess of jurisdiction,
3. Abuse of jurisdiction,
4. Violation of principle of natural justice,
5. Error of law apparent on the face of record,
6. Fraud.

E. Quo Warranto:

Quo Warranto means ‘by what authority’. It is a judicial order issued by the Supreme Court or high court by which any person who occupies an independent office is asked to show by h what authority he claims it. Thus, it gives judiciary a weapon to control executive, the legislature and statutory and non statutory bodies in matters of appointment to public offices.

Conditions for grant of Quo Warranto:

1. Office must be public office.
2. Public office must be substantive in nature.
3. The person must be in actual possession of the office.
4. The office must be held in contravention of law.

There is a very slight difference between the writ of prohibition and certiorari, writ of prohibition is issued when the proceedings are pending in nature or are in progress, whereas the writ of certiorari is issued when the proceedings have terminated and authority has already given the final decision.