DELVING INTO ARTICLE 32 OF THE INDIAN CONSTITUTION

January 25, 2024

Ubi Jus, Ibi Remedium” is one of common law’s guiding concepts. “Where there is a right, there is a remedy” is what this adage says. Throughout history, every legal system has recognized the right to a remedy as a basic right.

The Indian Constitution’s Article 32 is often considered to be the “soul and heart” of the Constitution since it provides citizens a special and efficient way of appealing to the Supreme Court directly in order to have their most fundamental liberties protected. Article 32 of the Constitution, which can be found in Part III on Fundamental Rights, provides an effective framework that provides people the right to pursue justice when their fundamental freedoms are violated.

article 32 of indian constitution explanation

  • The right to petition the Supreme Court through the proper channels for the implementation of the rights granted by this Part is protected, according to article 32 fundamental rights.
  • This clause creates a person’s right to directly petition the Supreme Court to have their fundamental rights upheld and protected. It gives the Supreme Court more authority to uphold the Constitution and guarantees that people have a useful way to file complaints when their rights are violated.
  • The clause ensures prompt and efficient remedies by granting people the basic right to petition the Supreme Court immediately for the enforcement of their rights.
  • Since Article 32 is a fundamental right in and of itself, the judiciary will carefully examine any legislation or action that attempts to restrict or limit this right.

article 32 of indian constitution: Types of Writs

According to Article 32 of the Constitution, writs can be of the following five types:

The Writ of “Habeas Corpus”:

  • A writ known as habeas corpus is used to defend a person’s fundamental right to liberty against unjustified incarceration.
  • This writ requires a public servant to present a person who has been detained to the court and establish a legitimate justification for the confinement.

The Writ of “Quo Warranto”:

  • A person who claims as well as usurps a public office is subject to a quo warranto. The court uses this writ to find out “by what authority” the petitioner is defending their position.
  • The court uses this writ to investigate the validity of a person’s claim to a public office. This writ prohibits an individual from unlawfully assuming a public office.

The Writ of “Mandamus”:

  • A subordinate court, a government official, a company, or another organization can obtain a writ of mandamus, which orders the execution of specific tasks or obligations.
  • The writ of mandamus may be used to stop an activity or, in other situations, to mandate that a work be completed.

The Writ of “Certiorari”:

  • A lower court can request the transfer of a case for review by issuing a writ of certiorari, which is typically used to overturn a lower court’s decision.
  • In the event that a party challenges the lower court’s ruling, the Supreme Court grants a writ of certiorari. It is issued in the event that a higher court determines that it falls outside of its purview or is overly broad.

The Writ of “Prohibition”:

  • A higher court can writ prohibition to a lower court to compel inactivity within its jurisdiction. It only occurs when the higher court decides at its discretion that the case is outside the lower court’s jurisdiction.
  • It is only possible to issue a Writ of Prohibition against judicial and quasi-judicial authority.

article 32 of indian constitution case laws

  • In the case of ADM Jabalpur v Shivakant Shukla, it was decided in what is commonly referred to as the Habeas Corpus case that the writ of Habeas Corpus must not be interrupted, not even in an emergency (Article 359).
  • In the case of G.D. Karkare v T.L. Shevde, the Nagpur High Court made the following observation: The petitioner does not seek to assert any right of his as such or complain about any non-performance of duty towards him in proceedings for a writ of quo warranto. The right of the non-applicant to occupy the office is in dispute, and an order that is passed effectively removes him from it.
  • In the case of Rashid Ahmad v Municipal Board, the availability of an alternative remedy cannot be a complete barrier to the writ process in connection to Fundamental Rights, even though the fact could be taken into account.
  • In the case of Hari Bishnu Kamath v Ahmad Ishaque, the Supreme Court ruled that the court that granted certiorari to quash could not, however, replace its own ruling based on the merits or issue orders that the court or tribunal had to follow. Its activity was destructive; all it did was erase the order that had been issued without jurisdiction and leave things at that.
  • In the East India Commercial Co. Ltd v. Collector of Customs case, an inferior tribunal was issued a writ of prohibition, which forbade it from carrying out the procedure on the grounds that it was outside its jurisdiction or in conflict with other laws, statutes, or the laws of the land.

Fundamental rights now have a guardian and protector in the Supreme Court. Article 32 of the constitution gives it the authority and control to offer remedies if these rights are violated.

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