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

Article 32 of Indian Constitution

Article 32 of Indian Constitution is often referred to as the “heart and soul” of the Constitution, as described by Dr. B.R. Ambedkar. This article grants the right to constitutional remedies, which allows individuals to approach the Supreme court directly in case of any violation of their fundamental rights. It ensures the protection and enforcement of these rights, making it a pillar of Indian democracy.

Original Text of Article 32 of Indian Constitution:

(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 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).

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

Explanation of Article 32 of Indian Constitution:

Right to Constitutional Remedies is considered the most crucial article because, as per this article, the right to have one’s fundamental rights protected is itself a fundamental right.

• It confers theright to remedies for enforcing the fundamental rights of an aggrieved citizen.
• The Supreme Court has held that Article 32 constitutes the basic structure of the Constitution. Hence, itcannot be abridged or taken away even by an amendment to the Constitution.
• The provisions under this article are the following:

1. 1. The right to move the Supreme Court by appropriate proceedings for enforcing the Fundamental Rights.
   2. The Supreme Court shall have the power to issue directions, orders, or writs to enforce fundamental rights.
   3. Parliament can empower any other court to issue directions, orders and writs. Any other court does not include high courts here because these powers have already been conferred on the high courts.
   4. Article 32 cannot be suspended except as provided for by the Constitution.

In the case of a national emergency, the rights under this article can be suspended by the President (Article 359).

Article 32 provides protection only to the fundamental rights, not any other rights like non-fundamental constitutional, statutory, customary, etc.

Writs

Borrowed from English law, they are known as ‘prerogative writs’.

Before 1950, only the Calcutta, Madras and Bombay High Courts had the power to issue the writs. Once the Constitution was framed, the Supreme Court under Article 32 and the high courts under Article 226 got the power to issue writs.

Further, The Supreme Court, in the Chandra Kumar Case of 1997, ruled that the writ jurisdiction of the Supreme Court, as well as the High Court, is a part of the basic structure of the Constitution. Hence, it cannot be taken away even by an amendment to the Constitution.

Five Writs

1. Habeas Corpus –  ‘to have the body of’.

The order issued by a court to a person who has detained another person to produce the body of the latter before the court. After that, the court examines the cause and legality of the detention, which would set the detained person free if the detention is illegal.

According to Article 22, only 24-hour detention is allowed; after that, it becomes illegal unless authorised by the magistrate. Habeas Corpus can be applied in this case. Further, if an individual has held a person hostage, in this case, Habeas Corpus can be applied.

Thus, It can be issued against both public authorities and private individuals, but it cannot be issued where the –

1. Detention is by law
2. The proceeding is for contempt of a court or a legislature
3. The arrest is by a competent court, and
4. The court has no jurisdiction over detention.

This writ is the bulwark of individual liberty against arbitrary detention.

2. Mandamus – meaning ‘we command’.

Mandamus Command is issued by the court to a public official directing him to carry out the official duties that he has failed to fulfil, and that is violating somebody’s rights.

For the same purpose, it can be issued against a corporation, a public body, an inferior court, a tribunal or a government.

It cannot be issued against –

1. a private individual or body;
2. to enforce departmental instruction that does not have statutory force;
3. when the duty is voluntary and not mandatory;
4. to enforce a contractual obligation;
5. against the President of India or the governors of the states
6. against the Chief Justice of a High Court performing in a judicial capacity

3. Prohibition

It is issued by a higher court (SC or HC) to a lower court or tribunal to stop the latter from going beyond its jurisdiction or usurping a jurisdiction it does not possess. Thus, unlike the mandamus that directs activity, the prohibition directs inactivity.

It can be issued only against either judicial or quasi-judicial bodies. 

4. Certiorari – ‘to be certified’ or ‘to be informed.’

A higher court may issue this writ to a lower court or tribunal in order to transfer or overturn the lower court’s decision in a matter. It is issued for excess jurisdiction, lack of jurisdiction, or error of law.

• Thus, prohibition is only preventive, while Certiorari is both preventive and curative.
• Initially, Certiorari could be issued only against judicial and quasi-judicial bodies and not against administrative authorities. However, in 1991, the SC ruled that the Certiorari could be issued even against administrative authorities affecting the rights of individuals.

Similar to Prohibition, Certiorari too is not available against legislative bodies and private bodies/individuals.

5. Quo-Warranto – meaning ‘by what authority.’

It is issued to enquire into the legality of a person’s claim to a public office. Hence, it prevents the illegal usurpation of public office by a person.

This writ can be issued only in case of substantive public offices of a permanent nature established by statute or the Constitution. However, in cases of ministerial office or private office, it cannot be issued.

Any interested person can seek this writ, not necessarily the aggrieved person.

For further reference:

• Read the Constitution of India
• Read the fundamental Rights. 

Other Related Links:

Indian Constitution: All Articles and schedules	Article 1 of Indian Constitution
Article 2 of Indian Constitution	Article 3 of Indian Constitution
Article 4 of indian Constitution	Article 5 of Indian Constitution
Fundamental Rights	DPSP
Fundamental Duties	Amendments of the Indian Constitution
Article 30 of Indian Constitution	Article 33 of Indian Constitution