Right to Constitutional Remedies – A Fundamental Right

Part III of the Indian Constitution guarantees fundamental rights to the citizens. All those fundamental rights that make one’s life worth living are ensured by these rights. Fundamental rights are very essential for the entire development of individuals and the country. The declaration of fundamental rights would be meaningless unless there is effective machinery for the enforcement of the rights.Actually, it is the remedy which makes the fundamental rights the real.This can be achieved through the Right to Constitutional remedies. Indian Constitution guarantees Constitutional remedies to every citizen under art.32 .

Right to Constitutional Remedies

Dr.B.R.Ambedkar remarked art.32 as ‘heart and soul of the constitution’. It is a right fundamental to all the fundamental rights. Article 32 has subclauses. Art.32(1) guarantees the right to move to the Supreme court by “appropriate proceedings” for the enforcement of the fundamental rights conferred in the constitution. Clause (2) of Art.32 confers power on the Supreme court to issue appropriate directions or orders or writs. The writs includes habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of any of the rights conferred by part III of the constitution. Under(3) of Art.32, Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or of the powers exercisable by the Supreme court under clause (2). Art.32(4) says that the right guaranteed by this article shall not be suspended except as otherwise provided for the constitution.

Art.32 guarantees the right to move to the Supreme court for the enforcement of fundamental rights. Similarly, Art.226 gives the authority to High courts to issue directions, orders or writs. These directions, orders, or writs may be issued to enforce fundamental rights or for any other reasons. They mainly issue writs for the purpose of enforcement.


WRITS

The power to issue writs is essentially a provision enacted to obtain the Right to Constitutional Remedies to every citizen of India. Thus the writs are constitutional remedies. There are five types of writs. They are :

  1. Habeas Corpus – The term ‘habeas corpus’ is a Latin term, which literally means ‘you may have the body’. By this writ, the court directs to bring a person before the court. If one has been illegally restrained and deprived of his liberty a writ petition for habeas corpus can be filed to ask the court to secure their release.The writ is issued to produce a person who has been detained, and deprived of his liberty, whether in prison or in private custody,before a court and to release him if such detention if found illegal. The court issues the writ of habeas corpus to any public authority having a person unlawfully in their custody and it orders the authority to bring the person before the court. Later, the court inquires into the events of the issue of the person’s detention and gives an unbiased judgment against the unlawful restrainment. The court can also issue writ in cases of any illegal inhumane treatment of prisoners. The writ of habeas corpus can be filed by the detained person, i.e. the prisoner or by any person who is known to him.
    • The case, Sheela Barse v. State of Maharashtra is an example. This petition is filed by Sheela , a journalist, who interviewed 15 women prisoners who were in the police lockup in Bombay station. They said that 2 of them were assaulted there by the policemen. Thus Sheela Barse filed the petition and the court directed to inquire into it. When it was proved, the officials were punished and ensured certain safety measures to safeguard the women in prisons.

2. Mandamus – The term mandamus is a Latin term which means ’we command’. By the writ of Mandamus, the court issues an order to an authority to perform their work or public duty as prescribed by law. It’s an order from the Supreme court or High court to a lower court or tribunal or public authority to perform the duty. To issue the writ, the public authority has to do a mandatory legal obligation and if he fails to do so, the writ can be exercised. The Supreme Court cannot issue writs to President or State governors, Chief justice of High courts, against any private individuals, or to anyone who does duties on voluntary interest .

As per the Supreme court’s ruling in Tata Cellular v. Union of India, the court cannot interfere with the government’s freedom of contract, invitation and refusal of tenders. It is possible for the court to intervene if the government’s decision is unfair, illegal and unreasonable.

3. Certiorari – The word certiorari literally means ‘to be certified’ ot ‘to be informed’. The writ is issued to quash the order already passed by an inferior court, tribunal or quasi judicial authority by the Supreme court or High court. The writ is issued when the court, tribunal having legal authority to determine a judicial question and it exceeds their legal authority that affects the rights of people.The order could also be against the principles of natural justice or the order have any error in judgment in interpreting the case. The court can issue the writ to cancel the order or judgment of the lower authority which has exceeded its powers. In short,the writ is issued on the grounds of exercise of (i)excess jurisdiction or (ii) lack of jurisdiction or (iii) error of law. Certiorari is a writ which is both preventive as well as curative at different instances.

4. Prohibition – The word prohibition literally means ‘to forbid’. This writ is issued by a higher court to a lower court or tribunal to prevent the lower court or tribunal from exceeding its jurisdiction or using a jurisdiction it doesn’t possess. The writ can be issued against judicial and quasi-judicial bodies only. The writ of prohibition is a preventive measure. It is generally known as ‘Stay order’.

The slight difference between Certiorari and Mandamus is that Certiorari is issued to quash a decision after completion of the proceedings. Prohibition is issued before the completion of proceedings.

5. Quo Warranto – This writ literally means ‘by what authority’. It is issued by the court to inquire into the legality of claim of a person to a public office. Any interested person can apply for the writ. The writ inquires that in what authority the person holds the office which he is not entitled. If the person doesn’t have the right to hold the position, he will be removed by a court order from the office. The court can issue an order to do any act or may declare to vacate the office. This is a remedy to control the executive from making unlawful appointments to a public office .

The Supreme court can issue writs only in case of the violation of fundamental rights. Compared with the Supreme court, High courts have more power to issue writs. People can file writs on the High court on reasons other than violation of fundamental rights. They approach the High court to seek justice on other matters also. Art.226 of the constitution empowers the High court to issue writs for the enforcement of justice.

Can people directly approach the Supreme Court for the enforcement of fundamental rights?

Yes, people can directly approach the Supreme court for the enforcement of fundamental rights without approaching the High court. In matters relating to civil or criminal, the first remedy available to the aggrieved person is that of trial courts, then can appeal to the High court and then the Supreme court. When it comes to violation of fundamental rights, individuals can approach the High court under Art.226 or can approach the Supreme court directly as per under Art.32. However, Art.32 is a fundamental right, Art.226 is not included in the category of fundamental rights.



References :

*https://www.leadthecompetition.in/GKT/gktopics.html

*https://indianexpress.com/article/explained/article-32-and-supreme-court-fundam ental-rights-7055040/

*https://www.latestlaws.com/latest-caselaw/1994/july/1994-latest-caselaw-395-sc

*Article 32 of Indian Constitution

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