Right To Constitutional Remedies in Indian Constitution
Article 32 of the Indian constitution provides for constitutional remedies against the violation or transgression of fundamental rights. The fundamental rights are of highest importance to the individuals. They are basic conditions for the fullest development of personality.
Article 32 which was referred to “as the very soul of the constitution” by Dr. Ambedkar, provides for constitutional remedies. Clause 2 of Article 32 provides that, “The Supreme Court shall have the power to issue directions or order or writs including the writs in the nature of habeas corpus, mandamus, prohibition, Quo warranto and criterion, whichever may be appropriate for the enforcement of any of the rights conferred by” fundamental rights. The citizens are given the right to move—the Supreme Court in case of transgression of fundamental rights. The Supreme Court thus is constituted into a protector and guarantor fundamental rights. The right to constitutional remedy is itself a fundamental right.
Besides the Supreme Court, the High Courts also have been given a role in the protection of fundamental rights. Under Art. 226 of the constitution, High Courts also can issue writs for the enforcement of fundamental rights.
But the jurisdictions of the Supreme Court and the High Courts in the matter of issue of writs are slightly different. The Supreme Court can issue writs only in case of infringement of a fundmental right in part III of the constitution. The High Courts on the other can issue writs against infringement of fundamental rights, as well as against contravention of ordinary law of redress grievances arising therefrom. Thus the area of High Courts, with respect to the power to issue writs is wider than that of the Supreme Court. However, competence of the High Courts to issue writs is limited within its territorial jurisdiction. The Supreme Court’s area of competence is co-terminus with the territory of India as a whole.
In case of transgression of fundamental rights the Supreme Court or the High Courts may issue five kinds of writs. These are writs of Habeas Corpus, Mandamus, Prohibition, Criterion, and Quowarranto.
- Habeas Corpus—Habeas Corpus literally means—that human person is sacred. Hence no man may be detained illegally. Whenever a man is detained, he must be produced before a court. This writ is a powerful safeguard against arbitrary arrest and detention.
- Mandamus—meaning ‘command’, mandamus calls upon public servants to perform some duties. Thus mandamus is issued against dereliction of duty.
- Prohibition—as the very term prohibition—suggests, this writ is issued by the Supreme Court or the High Courts, to prohibit inferior courts under them to overstep their jurisdiction.
- Criterion—it enables a superior court of compels inferior courts to submit records of proceedings to the higher court.
- Quo warranto—literally means by what right. This writ is issued to determine the legality of a person’s claim to public office. The purpose of this writ is to prevent usurpation of a public office by an undesirable or, unqualified person.
Like fundamental rights themselves, the right to constitutional remedies under Article 32 are not without limits. The constitution visualizes there situations when fundamental rights may be denied hut constitutional remedies will not be available i.e. Article 32 will not be applicable.
- Article 33 empower the Parliament to modify application of fundamental rights to armed forces and the Police to ensure proper discharge of their duties.
- Secondly, under Article 34, during the operation of Martial law in any area, the Parliament may indemnify any person in the service of the central or a state government for acts for the maintenance or restoration of law and order.
- Thirdly, during emergency proclaimed under Art 352 of the constitution, the fundamental rights guaranteed to the citizens, will remain suspended. Article 358 authorize the Parliament to restrict fundamental rights guaranteed by Art 19 during the pendency of an emergency under Article 352.
Article 359 empower the President to suspend the right to move the courts for the restoration of fundamental rights. In other words, Article 359 empowers the President to suspend Art 32 of the constitution. Such an order however is to be submitted to the Parliament, and the Parliament has the right to disapprove the Presidential order.