Article 32: Constitutional Remedies for the enforcement of Fundamental Rights.
To increase the effectiveness of the Fundamental Rights or to ensure its implementation, special provision has been made in Article 32 of the constitution itself.
As per this article any individual whose Fundamental Rights has been violated can approach directly to the Supreme Court (other remedies are also available to that individual which is available in other right’s violation).
Supreme Court can issue any of the five Writs depending upon the situation. These Writs are as follows
1.Habeas Corpus :
The writ of Habeas Corpus is in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined.
Habeas Corpus literally means ‘To have a body‘.
This writ can be issued against any individual whether an official or private person. If this writ has been issued against any individual then he has to produce the person he has confined. Once the individual produces the person he has confined this writ become infructuous.
The principle of ‘Locus Standi’ does not apply in the filing of this petition. It means any individual can approach the court to issue this writ of ‘Habeas Corpus’.
The writ of Habeas Corpus can not be issued in the following cases :
- Where the person against whom the writ is issued or the person who is detained is not within the jurisdiction of the court.
- To secure the release of a person who has been imprisoned by a court of law on a criminal charge.
- To interfere with a proceeding for contempt by a court of record or by the Parliament.
2. Mandamus :
Mandamus literally means a command. It demands some activity on the part of a body or person to whom it is addressed. In short, it commands the person to whom it is addressed to perform some public or quasi-public legal duty which he has refused to perform and the performance of which can not be enforced by any other adequate legal remedy.
This writ can be issued against a public officer, the government itself, inferior court or other judicial bodies.
Mandamus writ is issued for the following purpose :
(a) Enforcement of fundamental rights.
(b) Apart from enforcement of Fundamental Rights, Mandamus is available from a High Court for various other purposes –
(i) To enforce the performance of statutory duty.
(ii) To compel a court or judicial tribunal to exercise its jurisdiction when it has refused to exercise it.
(iii) To direct a public official or the government not to enforce a law which is unconstitutional.
However, the writ of Mandamus will not be granted against the following person:-
(i) The president or the governor of a state for the performance of the powers and duties of his office.
(ii) Mandamus does not lie against a private individual or body except where the state is in collusion with such private party.
3. Prohibition :
The writ of prohibition is a writ issued by Supreme Court or a High Court to an inferior court forbidding the latter to continue proceeding there in excess of its jurisdiction or to usurp a jurisdiction with which it is not legally vested.
It can be issued against only judicial or Quasi-Judicial authorities.
It is available during the pendency of the proceedings and before the order is made
4. Certiorari :
It is issued to quash the judgement of judicial or quasi-judicial body. If such tribunal or officer must have acted without jurisdiction or in excess of the legal authority vested in such quasi-judicial authority or in contravention of the rules of natural justice or there is an error apparent on the face of its record.
A tribunal may be said to act without jurisdiction in any of the following circumstances –
(i) Where the court is not properly constituted like lack of qualification..etc.
(ii) Where the subject matter of enquiry beyond the scope of Tribunal, according to the law which created it.
(iii) Where the court has assumed a jurisdiction on the basis of a wrong decision of facts upon the existence of which the jurisdiction of the tribunal depends.
(iv) Where there has been a failure of justice either because the tribunal has violated the principle of natural justice or because its decision has been obtained by fraud, collusion or corruption.
(v) When the decision of an inferior court/tribunal is vitiated by an error ‘apparent on the face of the record’. It is liable to be quashed by Certiorari, even though the court may have acted within its jurisdiction.
5. Quo Warranto :
It is a proceeding whereby the court enquires into the legality of the claim which a party has asserted to a public office, and to oust him from its enjoyment if the claim is not well found.
The conditions necessary for the issue of Quo-Warranto are as follows :
(i) The office must be public and it must be created by a statute or by the constitution itself.
(ii) The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
(iii) There has been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.
The challenge can be made on the ground such as he does not fulfil the required qualification or suffers from any disqualification debarred him to hold such office.
Special features of the jurisdiction of the Supreme Court under Article 32 :
Though Fundamental Rights may be enforced by another proceeding, such as a declaratory suit under the ordinary law or an application under Article 226 or by way of defence to a legal proceeding brought against an individual, a proceeding under Article 32 is described as Constitutional Remedy.
Under Article 32, the Supreme Court can not refuse to entertain such plea merely on the ground of technical error or because other legal remedies are available to the petitioner.
Difference between the jurisdiction of the Supreme Court and the High Court to issue writs :
(i) An application to a High court under article 226 will lie not only where Fundamental Rights has been infringed but also where some other limitation imposed by the constitution, outside Part III has been violated.
But an application under article 32 shall lie in case only where Fundamental Rights enumerated in Part III of the Indian constitution has been violated.
(ii) Another distinction is the area of jurisdiction. All over the country by Supreme Court Vs limited jurisdiction of a High Court.
Supreme Court is considered as the protector and guarantor of Fundamental Rights by Article 32(1).
Who can issue a writ in India?
At present, the writ is issued by the Supreme Court(Article 32) and High Court(Article 226) but parliament has the power to authorize any other courts to issue a writ.
There are five writs mentioned in article 32 of the Indian constitution. These are Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto.
This article gives the right to every citizen of India to approach directly to the Supreme Court if his/her fundamental right is violated. Supreme Court enforces the fundamental right of an individual by issuing writs.