RIGHT TO CONSTITUTIONAL REMEDIES: ANALYSIS OF ART. 32 OF THE CONSTITUTION OF INDIA

Article 32 is the “soul of the Constitution and the very heart of it”.

The best conferment of the Constitution is the Fundamental Rights. Somehow or another, they frame the rampart of our Constitution. Each one of these Rights is trivial if there exists no instrument to authorize them. Article 32 gives such a component. That is the reason it is the gem, the delegated wonder, the heart, and the spirit of the Constitution.

INTRODUCTION:

  • Article 32 is known as the “spirit of the constitution and exceptionally heart of it” by Dr. Ambedkar. Preeminent Court has included it in fundamental structure regulation. Further, it is clarified that privilege to move to Supreme Court can’t be suspended with the exception of generally given by the Constitution. This suggests this privilege suspended amid a national crisis under article 359.
  • Article 32 makes the Supreme Court the safeguard and underwriter of the major rights. Further, the capacity to issue writs goes under the original jurisdiction of the Apex Court. This implies an individual may approach SC straightforwardly for a cure as opposed to by appeal.
  • Article 32 can be used only to get a remedy for fundamental rights enshrined in Article 12-35. It isn’t there for some other legal right for which diverse laws are accessible.

Constitutional Philosophy of Writ Jurisdiction

An individual whose privilege (Fundamental Right) is encroached by an arbitrary administrative action may approach the Court for a suitable remedy. Article 32(2) of the Constitution of India gives: “The Supreme Court will have the capacity to issue bearings or requests or writs, incorporating writs in the idea of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever might be suitable, for the requirement of any of rights given by this Part.”  Article 32 is a basic Right directly under Part – III of the Constitution. Under this Article, the Supreme Court is enabled to loosen up the customary standard of Locus Standi and permit general society to intrigue case in the name of public interest litigation (PIL).

Comparative Analysis of Article 32 & 226

Article 32 isn’t to be conjured for encroachment of an individual right of the agreement (contract), nor is to be summoned for unsettling questions which are fit for transfer under other laws. Article 226(1) of the Constitution of India, on the other hand says,” Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

As is obvious from the uncovered dialect, this Article ensures a person to move the High Court for implementation of the fundamental rights and also for implementation of some other lawful right. Article 226 gives wide powers on the High Courts. It fills in as a major repository of legal capacity to control organization. Its capacity under Article 226 can’t be diminished by enactment. In this manner, forces of High Courts gave under Article 226 are more extensive when contrasted with forces presented on the Supreme Court under Article 32 of the Constitution of India.

TYPES OF WRITS:

  1. Habeas Corpus:

This writ 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 and to set him free if there is no legal justification for the confinement. In Rudul Sah v. State of Bihar added a new dimension to judicial activism and raised a set of vital questions, such as, liability of State to compensate for unlawful detention, feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, propriety of the Supreme Court passing an order for compensation on a habeas corpus petition for enforcing the right to personal liberty.

  • Mandamus:

A writ issued by a court to compel performance of a particular act by lower court or a governmental officer or body, to correct a prior action or failure to act.” It is used for enforcement of various rights of the public or to compel the public statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.

The rule of Locus Standi: is strictly followed in while issuing writ of mandamus. The petitioner has to prove that he has a right to enforce public duty in his favour. The mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty is in nature of public duty and it especially affects the right of an individual, provided there is no more appropriate remedy.”

  • Prohibition:

A writ of prohibition, also known as a ‘stay order’, is issued to a lower court or a body to stop acting beyond its powers.

  • Certiorari:

The writ of certiorari issued to quash a decision after the decision is taken by a lower tribunal while prohibition is issuable before the proceedings are completed. The law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine question affecting the rights of subjects and obliged to act judicially.

  • Quo Warranto:

The writ of Quo Warranto (by what warrant) is issued to inquire about the legality of a claim by a person or authority to act in a public office, which he or she is not entitled to. The writ of Quo Warranto is a mode of judicial control in the sense that the proceedings review the actions of the administrative authority which appointed the person.  

The writ is issued to the person ousting him from holding a public post to which he has no right. It is used to try the civil right to a public post. Accordingly, the use of the writ is made in cases of usurpation of a public office and removal of such usurper. Conversely, it protects citizen from being deprived of public office to which he may have a right. A petition for the writ of Quo Warranto can be filed by any person though he is not an aggrieved person.

CONCLUSION:

In the hands of the Supreme Court PIL in India has taken a multidimensional character. The deep-rooted ill-disposed framework has been given a pass by. With the coming of legal activism, letters, paper reports, dissensions by open lively people, social activity bunches conveying to the notice of the Court in regards to infringement of major rights were managed regarding them as writ petitions and the alleviation of pay was additionally allowed through writ jurisdiction.

Article 32 gave to the subjects are the incredible powers with prompt impact. Furthermore, the writs are generally summoned against the state and are issued when PILs are recorded. The Writ Jurisdictions which are presented by the Constitution, however, have privilege controls and are optional in nature but then they are unbounded in its breaking points. The carefulness, in any case, is practiced on legitimate standards.

Hence, obviously immense forces are vested with the Judiciary to control a managerial activity when it encroaches fundamental privileges of the subjects or when it goes past the soul of Grundnorm of our nation i.e., Constitution of India. It guarantees the Rule of Law and appropriate check and equalizations between the three organs of our vote-based framework. The rationality of writs is very much synchronized in our Constitutional arrangements to guarantee that privileges of nationals are not smothered by a self-assertive authoritative or Judicial activity.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.