ANALYSIS OF ARTICLE 32 OF THE CONSTITUTION OF INDIA: RIGHT TO CONTITUTIONAL REMEDIES

Name-Siddhi Parmar

Course-BALLB

College- Manikchand Pahade law college, Aurangabad

Email ID- siddhi9803@gmail.com 

Introduction

When it comes to the enforcement of an individual’s rights, Article 32 of the Indian Constitution is considered one of the most significant articles. When an individual believes their rights have been infringed or ‘unduly deprived,’ it provides them the right to seek justice in a court.

The parliament Is allowed by Article 32 to entrust any other court with the power of the Supreme Court, within its jurisdiction. It can be said that this article provides individuals with an assured right to enforce Fundamental Rights, as the law permits an individual to directly approach the Supreme Court without first going through the long and lengthy method of going through the lower courts.

Article 32: Right to Constitutional Remedies

  • It is a fundamental right that stipulates that persons have the right to petition the Supreme Court (SC) for the enforcement of other constitutionally protected fundamental rights.
  • The Supreme Court has the authority to issue directives, orders, or writs to enforce any of the fundamental rights. Habeas corpus, mandamus, prohibition, certiorari, and quo-warranto are some writs that can be issued.
  • The right to petition the Supreme Court will not be suspended unless the Constitution expressly states otherwise. During a national emergency, the President can suspend the right to petition any court for the enforcement of fundamental rights, according to the Constitution (Article 359).
  • The SC’s jurisdiction over the enforcement of Fundamental Rights is original (since an aggrieved person can approach to the SC directly, rather than through an appeal), but not exclusive. It runs concurrently with the high court’s jurisdiction under Article 226 (where a citizen’s fundamental rights are violated, the aggrieved party can go to either the high court or the Supreme Court immediately).
  • The availability of an alternate remedy is not a bar to relief under Article 32 because the right guaranteed by Article 32 (i.e., the right to petition the Supreme Court when a fundamental right is infringed) is in itself a fundamental right. 
  • However, the Supreme Court has ruled that where relief through the high court is available under Article 226, the aggrieved party should first petition the high court.

Writs under article 32

In the event of a breach of fundamental rights, the high court and the supreme court might be contacted. In the event of a breach of fundamental rights, there are five types of writs that can be issued:

1- Habeas Corpus

2- Certiorari

3- Mandamus

4- Quo-Warranto

5- Prohibition

Habeas Corpus

Literally the term “habeas corpus” means “to have a body of.” This writ is used to free someone who has been wrongfully imprisoned or detained. The Court, by virtue of this writ, orders that the person so detained be brought before it so that the legality of his custody can be determined. If the Court determines that the detention was illegal, the subject must be freed immediately. The following are examples of wrongful detention:

  • The detention was not carried out in accordance with the established procedure. For example, the person was not brought before a Magistrate within 24 hours of his arrest
  • The individual was detained despite the fact that he had broken no laws.
  • Unconstitutional laws were used to make an arrest.
  • This writ ensures a prompt judicial evaluation of the prisoner’s alleged wrongful detention and determination of his right to freedom. Habeas corpus, on the other hand, cannot be granted when a person has been arrested according to an order from a competent court, even if the order does not appear to be totally illegitimate or without jurisdiction at first glance.
  • This writ can be filed by the detained person himself or on his behalf by his relatives or friends. It can be used against both government entities and private individuals.

In Sunil Batra v. Delhi Administration case, through a letter written by a co-convict, an application was brought to the Supreme Court regarding the mistreatment of the convicts. The Supreme Court took up the letter and granted a writ of habeas corpus, adding that the writ can be used to protect the prisoner not just against improper arrest but also from any abuse or inhumane treatment by the detaining authorities.

In Kanu Sanyal v. District Magistrate Darjeeling & Ors. case, rather than focusing on the specified meaning of Habeas Corpus, i.e., produce the body, the Supreme Court concluded that the focus should be on examining the validity of the incarceration by considering the facts and circumstances of the case. This writ is a procedural writ, not a substantive writ, according to the court.

Mandamus

‘Mandamus’ means ‘we command’ in Latin. The Court issues it to compel a public authority to fulfil legal responsibilities that it has failed or refused to fulfil. It can be issued against a public officer, a public corporation, a tribunal, a lower court, or the government by the Supreme Court. It cannot be used against a private individual or company, the President or Governors of States, or a sitting Chief Justice. It is also not available in the following circumstances:

  • For the performance of a non-statutory function, the duty in question is discretionary and not mandatory.
  • The performance of the duty involves purely private rights.
  • Where such a directive would be in violation of the law.
  • Whenever there is no alternative legal remedy available.

Any person in good faith if has an interest in  public authority’s execution of the duty, must submit a writ petition seeking mandamus. The individual requesting mandamus must have a legal right to do so and must have demanded the authority’s fulfilment of the duty, which the authority has denied.

In All India Tea Trading Co. v. S.D.O. case, the interest on the compensation sum was incorrectly disallowed by the Land Acquisition Officer. The Land Acquisition Officer was served with a writ of mandamus, ordering him to reexamine the application for interest payment.

In Suganmal v. State of M.P. case, The petitioner asked for a writ of mandamus to order the respondent (the writ’s opposing party) to return the tax. A writ of mandamus cannot be granted where an assessment decision has been set aside and the rules in question do not provide for a refund of the tax imposed, according to the Supreme Court.

Quo Warranto

‘Quo Warranto’ is Latin term for ‘by what authority.’ The Court issues this writ in order for a person holding a public office to demonstrate under what authority he maintains that position. If it is uncovered that the individual is not qualified for the position, he may be eliminated from it. It is not viable to issue it in the case of a private office.

The writ can only be issued if the following conditions are met:

  • a private person has illegally acquired a public office.
  • The office was created by the constitution or law; and the person holding the office is not competent to hold the office under the constitution or law.
  • The duration of the public office must be indefinite.
  • The nature of the tasks that arise from the position must be open to the public.

In Kumar Padma Padam Prasad v. Union of India case, the President of India appointed Mr. K.N. Srivastava as a Judge of the Gauhati High Court with a warrant of appointment under his seal. Mr K.N. Srivastava was not qualified for the position, according to a petition for granting a writ of quo-warranto. The Supreme Court ruled that because Mr. K.N. Srivastava was unqualified, a quo warranto may be issued, and the appointment of Mr. K.N. Srivastava was invalidated as a result.

In Jamalpur Arya Samaj Sabha v. Dr D Rama case, the petitioner requested that a writ of Quo Warranto be issued against the Working Committee of the Bihar Raj Arya Samaj Pratinidhi Sabha, a private entity. Because it was not a public position, the Patna High Court refused to grant a writ of Quo Warranto.

Certiorari

The word ‘certiorari’ literally means ‘to certify.’ Certiorari is a writ of amnesty. When the Court concludes that a lower court or tribunal has worked beyond of its authority or made a legal mistake, writ of certiorari might be used to transfer the case to itself or to quash the order.. The Supreme Court or the High Court may issue a writ of certiorari to a lower court or tribunal in the following circumstances:

  • When a subordinate court acts without jurisdiction or assumes authority where it does not exist, or
  • When a subordinate court operates outside of its jurisdiction by overstepping or crossing jurisdictional boundaries, or
  • When a subordinate court acts in flagrant violation of the law or rules of  procedure, or
  • When a subordinate court acts in breach of natural justice principles and there is no procedure in place.

Prohibition

Writ of prohibition can be issued by a court to prevent lower courts, tribunals, and other quasi-judicial institutions from acting outside of their power. It differs from mandamus in that it is granted to direct idleness rather than activity.

It is issued when natural justice rules or fundamental rights are violated. It can also be granted when a lower court or tribunal acts in violation of a statute that is unconstitutional in its own right.

The writ of certiorari and the writ of prohibition differ in that they are issued at various stages of the case’s proceedings. After the case has been heard and determined, a writ of certiorari is issued. It is issued to overturn a lower court’s decision or order when the lower court acted without or in excess of its jurisdiction. While the case is pending before it, a writ of prohibition is issued forbidding procedures in the lower court that operate without or in excess of jurisdiction.

Article 226 of the Constitution.

Article 226 gives a high court the power to issue writs such as habeas corpus, mandamus, certiorari, prohibition, and quo warranto to enforce citizens’ fundamental rights and for any other purpose.

The phrase ‘for any other purpose’ alludes to implementing a common legal right. This implies that the high court’s writ jurisdiction is broader than the SC’s.

This is because the  Supreme Court can issue writs only for  the enforcement of basic rights and not for any other reason, i.e., it does not extend to cases involving the alleged violation of a common law right.

If the spur of action occurs within the territorial jurisdiction of the high court, writs can be issued by it to any person, entity, or government not only within its territorial jurisdiction but also outside it.

Difference between Article 32 and Article 226

The differences between them are as follows:

S.No.

Article 32

Article 226

1.

Fundamental Rights are included.

Constitutional Rights are included.

2.

During an emergency, an individual’s rights may be suspended.

During an emergency, an individual’s rights cannot be suspended.

3.

It has a limited scope and is only applicable when fundamental rights are violated.

It has a broader scope and can be used in cases of both basic and legal rights violations.

4.

It has jurisdiction throughout India, and the Supreme Court has the authority to issue writs throughout the country.

It only has jurisdiction in the state in question, and High Courts can only issue writs in their own jurisdiction.

5.

The Supreme Court cannot deny the rights guaranteed by Article 32.

The High Courts have discretion over the rights under Article 226.

Conclusion

Article 32 establishes a legally binding remedy in the form of a Fundamental Right. When PILs are filed, writs are often issued against the state and are summoned against the state. The Constitution’s Writ Jurisdictions, contain privilege restrictions and are discretionary in nature, but they are unbounded in their breaking points.

As a result, the Judiciary has enormous power to oversee management conduct when it infringes on fundamental rights of the subjects or goes against the heart of our nation’s founding document, the Indian Constitution. It guarantees the Rule of Law, also proper checks and balances between the three organs of our vote-based system. The logic of writs is closely aligned with our Constitutional procedures to ensure that citizens’ rights are not suffocated by self-aggrandizing authoritative or judicial activity.

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