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ANALYSIS OF ARTICLE-32 OF CONSTITUTION OF INDIA : RIGHT TO CONSTITUTIONAL REMEDIES


Author: Priyanshu Kumar, II Year of B.A.,LL.B(Hons.) From School of Law, Christ University, Delhi-NCR Campus.


RIGHT TO CONSTITUTIONAL REMEDIES

Article 32 of the Constitution Of India is known as “Heart and Soul of the constitution of India” Said by Dr. B.R. Ambedkar during the Constituent Assembly debate. It gives power to the Citizen of India whose fundamental Rights is violated can directly approach to Supreme Court through Article-32 of COI. It works on Doctrine of “Ubi Jus Ibi Remedium” which means when there is a right , there is a remedy. It came out to be a greatest safeguard that protect the Citizens Fundamental Rights.


In the Case of L. Chandra Kumar vs. Union of India, Court Declare that Writ Jurisdiction of Both High court and Supreme are the Part of Basic Structure of Indian Constitution.



CONSNTITUTIONAL PHILOSOPHY OF WRIT JURISDICTION

A Person whose Right is infringed by an arbitrary administrative action may approach the court for appropriate remedy. The Word “Arbitrary” means a course of action or a decision that is not based on reason and judgement but on Personal will or discretion without regard to rules or standards.


Vast Powers are vested with the judiciary to control an administration action when It infringe fundamental rights of citizen or when it goes beyond the Spirit of Grundnorm of our Country(Constitution of India).The Indian Constitution is a Uppermost source of law in our Country. The word “Grundnorm is defined by Kelson which means basic norm, order, or rule which go on to form the basis for any and every legal system.



COMPARITIVE ANALYSIS OF ARTICLE 32 & ARTICLE 226 OF CONSTITUTION OF INDIA

Article 32 deals with the Power of Supreme Court to Issue writ. It itself a fundamental right as it fall under Part-III Of Constitution of India. In the case of Daryao and Ors vs State of Uttar Pradesh, It was held that Article 32 is not only a fundamental right of citizen but also the duty of Supreme Court to Protect those Fundamental Rights. Article 32 is only used for the enforcement of Fundamental Rights of citizen whose Rights is Infringed. In the Case of Rudal Shah vs. The state of Bihar, in this case Supreme Court invented new doctrine called compensatory jurisprudence and compensate the detainee for being in detention for 14 years on a wrongful Charge of Murder.


Article 226 deals with the power of High court to issue writs and it has a wider scope Because it can be used for the enforcement of Fundamental Rights and other legal rights as well. Article 226 cannot be suspended even during an emergency. It fall under Part-V of the Constitution of India. It gives discretionary power to the High court to issue direction, order, writ including Writ in Nature of habeas corpus, mandamus, prohibition, Quo Warranto, and certiorari. It invoked not only for fundamental Rights but also a violation of Other Rights.



TYPES OF WRITS

1. HABEAS CORPUS: Habeas Corpus is a Latin term which means ‘to have the body’

  1. If a Person is detained unlawfully , his relatives or friends or any person can move the court by filling an application under Article 226 & Article 32. After that court can order for release if there is no legal justification for the confinement.

  2. The Principle on which Habeas Corpus Function is that a person who detained illegally in confinement without any legal justification or any legal proceedings is entitled to seek the remedy of habeas corpus.

  3. An Application for habeas corpus can be made by any person , his relative or friends on the behalf of prisoner as well as prisoner himself.

  4. Even a letter to the judge is also treated as petition of habeas corpus. In the case of Sunil Batra v. Delhi Administration , a convict had written a letter to one of the judge of supreme court to stating about inhuman torture or illegal detention. The Justice Krishna Iyer treated his letter as a petition of habeas Corpus and Passed appropriate order.

  5. Habeas Corpus cannot be issued in the following case

  6. When detention is lawful.

  7. When the proceeding is for contempt of court or contempt of legislature.

  8. Detention is by Subordinate Court (Competent Court)


In the case of Kanu Sanyal v. District Magistrate ,While to say the real scope of writ of Habeas corpus , The supreme court opined that while dealing with a Writ petition of Habeas corpus, the court may examine or check the Legality of the detention without requiring the person detained to be produced from it.

  1. MANDAMUS: Mandamus is a latin term which means “we command”

  2. Mandamus can be issued against Any public body , a corporation, or an inferior court , a tribunal, or government for the same purpose.

  3. The rule of locus standi is strictly followed in while issuing writ of mandamus. The term ‘locus standi’ means the right to bring an action or to appear in a court.

  4. The function of Mandamus is to keep the Public authorities within the limits of their jurisdiction while exercising public function.


  1. Mandamus will not be granted against the following Person:

  2. The President or the Governor of a State.

  3. Private Individual Except state is in collusion with such private party.

In the case of The Praga Tools Corporation v. C.V. Imanual , the Supreme Court State that mandamus might be issued under certain circumstance lie against private individual if it is established that ‘State is in collusion with such private party or individual’.

  1. Legislative Body

  2. Ministerial Officer who is bound to obey the orders of his superior.

  3. Against the Chief justice of High court acting in a Judicial Capacity.


  1. PROHIBITION : The expression ‘Prohibition’ literally means to prohibit.

  • It is issued to a lower court or a body to stop on the ground of Absence or excess of jurisdiction.

  • The Principle of this writ is ‘Prevention is better than cure’.

  • The Writ of Prohibition is available during the pendency of the proceedings and before the order is made.

  1. Writ of Prohibition cannot be issued in the following:

  • Against administrative authorities

  • Legislative bodies

  • Private Individual or Bodies


In the case of East India Commercial co. Ltd verses Collector of customs A writ of prohibition was passed directing the lower Court prohibiting it from continuing on the grounds that the trial was outside or beyond the jurisdiction of the state or contrary to the laws of the country, regulations or otherwise.


  1. CERTIORARI: The word certiorari latin means ‘to certify’ or to be informed.

  • This writ is issued by the Higher court to lower court or tribunal ordering them either to transfer a case pending to them to itself or quashed their order if the decision is bad in law.

  • It is issued on the ground of a excess of jurisdiction or lack of jurisdiction or error of Law apparent on the face of the record.

  • Certiorari can be issued against administrative authorities who affecting rights of the individual.


  1. It cannot be issued against the legislative bodies and private individual.


  1. QUO WARRANTO: The term ‘Quo warranto’ means ‘what is your authority’

  • Supreme court and High court have authority to issue this writ to prevent illegal hold of a public office by a person.

  • It is judicial order asking a person , who occupies public office , to show by what authority he /She hold the office.

  • A Petition for the writ of Quo warranto is filled by any person though he is not an aggrieved Person.

  1. The condition for issue of a writ of Quo warranto are The office must be public office not a private body. The office is created by the constitution or any statutes.