ABSTRACT
The Right to Constitutional Remedies stands as one of the most important fundamental rights, providing the legal machinery to protect all other rights enshrined in the Constitution. The framers of the Indian Constitution, having incorporated a long list of fundamental rights, also provided for an effective remedy for the enforcement of these rights under Article 32. Article 32 is itself a fundamental right. It empowers citizens to approach directly the apex court in violation of their fundamental rights, bypassing the hierarchy of the judicial system.
This article was referred to by Dr. B.R. Ambedkar as "the very soul of the Constitution and the very heart of it."[1] It allows courts to issue "writs" which can be used as a tool to enforce justice. The power has been given to issue appropriate directions, orders, or writs. The writs which the Supreme Court can issue include the five writs mentioned in Article 32 — Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto. Article 32 is pivotal for justice, accountability, and the protection of individual rights. It thus provides for an expeditious and inexpensive remedy for the protection of fundamental rights from legislative and executive interference.
The Right to Constitutional Remedies is often referred to as the "Mother of Public Interest Litigation" (PIL) in India. Ironically, the power of the High Court is comparatively wider as compared to the Supreme Court in terms of the right to constitutional remedies. The High Courts have power to issue writs not only for the enforcement of fundamental rights but also for any other purpose.
INTRODUCTION
The Right to Constitutional Remedies is one of the most important fundamental rights which provides the legal machinery to protect all other rights enshrined in Article 32.[2] Our constitution makers, having incorporated a long list of fundamental rights, also provided for an effective remedy for the enforcement of these rights under Article 32 of the Constitution. Article 32 is itself a fundamental right. It empowers citizens to approach directly the apex court in violation of their fundamental rights, bypassing the hierarchy of the judicial system.[3]
This article was referred to by Dr. B.R. Ambedkar as "the very soul of the Constitution and the very heart of it."[4] It allows courts to issue "writs" which can be used as a tool to enforce justice. The power has been given to issue appropriate directions, orders, or writs. The writs which the Supreme Court can issue include the five writs mentioned in Article 32 — Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto. It is pivotal for justice, accountability, and the protection of individual rights. Article 32 thus provides for an expeditious and inexpensive remedy for the protection of fundamental rights from legislative and executive interference.
The Right to Constitutional Remedies is often referred to as the "Mother of Public Interest Litigation" (PIL) in India.[5] Ironically, the power of the High Court is comparatively wider as compared to the Supreme Court in terms of the right to constitutional remedies. The High Courts have power to issue writs not only for the enforcement of fundamental rights but also for any other purpose.
MEANING OF CONSTITUTIONAL REMEDIES
Constitutional Remedies refer to the legal mechanisms provided by the Constitution of a country to protect and enforce the fundamental rights of individuals. These remedies empower citizens to safeguard their fundamental rights, seeking relief from the judiciary when their constitutional rights are violated by the State or any other entity. These remedies serve as a crucial means of upholding the rule of law, ensuring accountability, and protecting the rights and liberties of citizens. The Supreme Court acts as the protector and guardian of fundamental rights.[6]
RIGHT TO CONSTITUTIONAL REMEDIES IN INDIA
The Right to Constitutional Remedies is a Fundamental Right enshrined in Part III (Articles 32–35) of the Constitution of India. The detailed provisions related to the Right to Constitutional Remedies are contained in Article 32 of the Indian Constitution and serve as a shield against the infringement of fundamental rights in India. The Indian Constitution provides a legal procedure for citizens whose fundamental rights are violated by strengthening fundamental rights and making them real.[7]
PROVISIONS FOR ARTICLE 32 IN THE INDIAN CONSTITUTION
The Right to Constitutional Remedies comes under Article 32 of the Constitution of India, which confers the enforcement of the fundamental rights of an aggrieved citizen. It contains the following four provisions in this regard:
Article 32(1) guarantees the right to move the Supreme Court by "appropriate proceedings" for the enforcement of fundamental rights.[8]
Clause (2) of Article 32 confers that the Supreme Court shall have the power to issue directions, orders, or writs for the enforcement of any of the Fundamental Rights.[9]
Under Clause (3), the Parliament may empower any other court to issue directions, orders, and writs of all kinds, without prejudicing the same powers of the Supreme Court.[10] Article 226 has already conferred this power on the High Court.
Under Clause (4), the right to move the Supreme Court shall not be suspended, except as otherwise provided for by the Constitution.
Under Article 359, during a National Emergency, the President may declare that the right to move any court for the enforcement of specified Fundamental Rights shall remain suspended for the period specified in the Presidential Order. However, the right to enforce the Fundamental Rights guaranteed under Articles 20 and 21 cannot be suspended.[11]
THE FOLLOWING POINTS ARE TO BE NOTED WITH RESPECT TO THE RIGHT TO CONSTITUTIONAL REMEDIES UNDER ARTICLE 32
Original Powers
An aggrieved citizen may approach the Supreme Court as a court of first instance, not necessarily following the hierarchical system of the judiciary. The Supreme Court's power is "original" because its jurisdiction is triggered immediately when fundamental rights are violated.[12]
Wide Powers
The Supreme Court has very wide powers in this regard. It is not restricted to issuing traditional writs but also has the power to issue orders or directions or new forms of writs, and it may issue writs of all kinds.
Not Exclusive Powers
The powers of the Supreme Court in this regard are concurrent with the High Courts under Article 226. The writ power of the High Court is broader in scope than that of the Supreme Court. Only Fundamental Rights, and not any other rights, can be enforced under Article 32.[13]
SUPREME COURT'S VIEWS ON RIGHT TO CONSTITUTIONAL REMEDIES
In the landmark case of L. Chandra Kumar v. Union of India (1997), decided by a seven-judge Constitutional Bench, the Supreme Court emphasized the constitutional importance of judicial review under Articles 32 and 226/227.[14] The power of judicial review vested in the Supreme Court and High Courts was held to be an essential feature of the Constitution and part of its basic structure.
ABOUT THE WRITS
In the context of India, writs refer to formal written legal orders issued by a court (like the Supreme Court or a High Court) empowered to command a specific person, official, or lower court to perform a specific act or refrain from doing something.[15]
In India, the power to issue writs is conferred only on the Supreme Court (Article 32) and the High Courts (Article 226) by the Constitution.
As per the provisions under Article 32, the Parliament can empower any other court to issue writs, without prejudicing the same powers of the Supreme Court. However, no such provision has been made so far.
Writs are an extraordinary remedy. They are usually granted when no standard equally effective legal alternative exists.
The features of "writs" in India are borrowed from the Constitution of the UK, where they are known as Prerogative Writs.
WRIT PETITIONS
A writ petition is a formal written plaint or motion submitted to a court of plenary jurisdiction (a court like the High Court or Supreme Court) which invokes its extraordinary power to issue a prerogative order (a writ) against an administrative, judicial, or quasi-judicial authority to enforce a fundamental right, correct a judicial error, or compel the performance of a mandatory duty.[16]
TYPES OF WRITS
In India, the Supreme Court, the High Courts, or any other courts empowered for the purpose can issue the following five types of writs:
Habeas Corpus
Certiorari
Prohibition
Mandamus
Quo Warranto
HABEAS CORPUS
Habeas corpus is the Latin term which means "you must have the body."[17]
It is the order issued by the court to present the detained person before the court and to check whether the arrest was lawful or not.
The court then examines the cause and legality of detention. It would set the detained person free if the detention was found to be illegal.
This writ can be issued against both public authorities and private individuals.
When direction of Habeas Corpus is not issued:
Detention must be lawful;
The proceeding is for contempt of a legislature or a court;
Detention must be by a competent court;
The court must have territorial jurisdiction;
This writ will not be available during emergency (except related to Articles 21 and 22 of the Constitution);
When the detention is found illegal, the doctrine of Res Judicata is not applicable to it;
The burden of proof lies on the person or authority to satisfy the court that detention was made on legal grounds.
Cases:
In Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, 1976 SC 1207,[18] also known as the Habeas Corpus case, the question was raised whether the writ of habeas corpus is maintainable in an emergency situation or not. It was held that a State has the power to deprive the right, especially the right to life enshrined in Article 21 of the Indian Constitution. This decision was considered to be the darkest day of Indian history.
Kanu Sanyal v. District Magistrate Darjeeling & Others, 1974 AIR 510,[19] held that before producing the body before the court, there must be complete focus on the legality of the detention by looking into the facts and circumstances of the case. It was stated that this is a procedural writ, not a substantive writ.
MANDAMUS
The literal meaning of this term is "we command."
A writ of mandamus is the order or command issued by any statute or any authority sanctioned by law to any person, corporation, or any other authority in order to perform any public duty that he has failed to perform or refuses to perform.[20]
It can be issued to a public official, a public body, a corporation, an inferior court, a tribunal, or the government for the same purpose.
This writ can only be issued when no other legal alternatives have been left at the disposal of the applicant.
This writ cannot be issued:
Against a private individual or body;
To enforce departmental instruction that does not possess statutory force;
When the duty is discretionary in nature;
To enforce a contractual obligation;
Against the President of India, the State Governors, and the Chief of a High Court;
Against any member of Parliament or member of Legislative Assembly.
The legal responsibility of the authority or body should be of a public nature.
Cases:
Municipal Board v. Rashid Ahmad, AIR 163 1950,[21] held that the existence of an alternative legal remedy is not an absolute bar to the issuance of a writ of mandamus, particularly when a fundamental right has been infringed.
Sohanlal v. Union of India, 1957 AIR 529,[22] ruled that a writ of mandamus cannot normally be issued against a private individual or private body, unless that private party is bound by or integrated with a public duty or State authority.
PROHIBITION
The meaning of this term is "to forbid."
A writ of prohibition is a writ issued by a higher authority to its subordinate authority in order to stop something which the law prohibits.[23]
Thus, while the writ of "Mandamus" directs activity, the writ of "Prohibition" directs inactivity.
The writ of prohibition can be issued only against judicial and quasi-judicial bodies and cannot be issued against administrative authorities, legislative bodies, or private entities.
Cases:
Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233,[24] held that the writ of prohibition is a preventive remedy; it can only be issued while the matter is pending before the lower court or tribunal and prevents it from exceeding its jurisdiction.
S. Govinda Menon v. Union of India, AIR 1967 SC 1274,[25] held that the writ of prohibition can be issued in excess of jurisdiction and absence of jurisdiction. This writ was issued by the High Court of Kerala to a lower court to take over excess jurisdiction which was not initially vested in it. This writ was issued under Article 226 of the Constitution of India.
CERTIORARI
It is a Latin word meaning "to be certified" or "to be informed."[26]
This writ is issued by the higher court to review the actions of the lower court.
This writ is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law or in violation of principles of natural justice.
Thus, while the writ of "Prohibition" is only preventive, the writ of "Certiorari" is both preventive as well as curative.
It can be issued against judicial, quasi-judicial, as well as administrative authorities, but is not available against legislative bodies, private individuals, or bodies, etc.
Even if the body acted well within its jurisdiction, a decision can be quashed if there is an error of law.
Cases:
Hari Vishnu Kamath v. Syed Ahmad Ishaque, 1955 AIR SC 233, [27] held that an error of law can be corrected by the writ of certiorari but not an error of fact. By this writ of certiorari, the court enjoys supervisory jurisdiction, not appellate jurisdiction.
Syed Yakoob v. K.S. Radhakrishnan, 1964 AIR SC 47,[28] held that the court cannot act as a court of appeal or check an error of fact. It can be applied where it can be shown that there has been a violation of the principles of natural justice.
QUO-WARRANTO
This writ is issued which requires a holder of an office to show by what authority he has exercised his powers or rights.[29]
It is issued by the court to inquire into the legality of an office holder.
Hence, it prevents illegal misuse of public office by a person.
Unlike the other writs, this can be sought by any interested person and not necessarily by the aggrieved person.
This writ can be issued only in the case of substantial public office of a permanent character created by a statute or by the Constitution. It cannot be issued in the case of ministerial or private offices.
When a person was qualified at one point and on another point he loses his qualifications, this writ can be issued against him.
Cases:
University of Madras v. Govind Rao, AIR 1965 SC 491,[30] observed that to issue a writ of quo warranto, the person who wrongfully occupies the public office must hold an office of substantive nature.
Rajesh Awasthi v. Nandlal Jaiswal, AIR 2013 SC 78, [31] held that the writ determines whether the person holding the office has the qualifications or not according to statutory provisions.
WRIT JURISDICTION OF SUPREME COURT AND HIGH COURT
The writ jurisdiction of the Supreme Court differs from that of the High Courts in three respects:
Constitutional Source of Power
Supreme Court — Article 32 of the Constitution. It is described as a "guaranteed" or fundamental right in itself — citizens can directly approach the Supreme Court.
High Court — Article 226 of the Constitution. This is broader and wider, and it is not itself a fundamental right but a constitutional power.
Scope of Rights Enforced
Supreme Court — Can issue writs only for the enforcement of Fundamental Rights (Part III of the Constitution).
High Court — Can issue writs for the enforcement of Fundamental Rights as well as any other legal right (e.g., statutory or contractual rights).
Territorial Jurisdiction
Supreme Court — Has jurisdiction over the whole of India.
High Court — Restricted to its own territorial jurisdiction over the state(s) under it, and the cause of action must generally arise within that territory.[32]
CONCLUSION
Article 32 is not merely a Fundamental Right in itself, but the foundational mechanism that makes all other Fundamental Rights real and enforceable. Referred to by Dr. B.R. Ambedkar as the "heart and soul" of the Indian Constitution, it establishes the Supreme Court as the protector of citizens' liberties. Declared as part of the basic structure of the Constitution, its writ jurisdiction ensures effective judicial review, preventing the arbitrary exercise of authority and upholding the rule of law in a democratic society.[33]
Reference
[1] J.N. Pandey, The Constitutional Law of India (Universal Book Trade, 1980).
[2] Constitution of India, 1950, art 32.
[3] Ibid.
[4] J.N. Pandey, The Constitutional Law of India (Universal Book Trade, 1980).
[5] Next IAS, "Right to Constitutional Remedies Article 32 of Indian Constitution" (27 August 2026), https://www.nextias.com/upsc/right-to-constitutional-remedies.
[6] Constitution of India, 1950, art 32.
[7] Ibid.
[8] Constitution of India, 1950, art 32(1).
[9] Constitution of India, 1950, art 32(2).
[10] Constitution of India, 1950, art 32(3).
[11] Constitution of India, 1950, art 359.
[12] J.N. Pandey, The Constitutional Law of India (Universal Book Trade, 1980).
[13] Constitution of India, 1950, arts 32, 226.
[14] L. Chandra Kumar v. Union of India (1997) 3 SCC 261.
[15] Suryansh Singh, "The Writ of Habeas Corpus" (18 June 2019), https://blog.ipleaders.in/writ-habeas-corpus/.
[16] Dhawal Srivastava, "What Powers Do The Courts Have Under Writ Of Mandamus" (25 July 2020), https://blog.ipleaders.in/powers-courts-writ-mandamus/.
[17] Suryansh Singh, "The Writ of Habeas Corpus" (18 June 2019), https://blog.ipleaders.in/writ-habeas-corpus/.
[18] Additional District Magistrate, Jabalpur v. Shivakant Shukla, Criminal Appeal No. 355 of 1975 (Supreme Court of India, 28 April 1976).
[19] Kanu Sanyal v. District Magistrate Darjeeling & Others, 1974 AIR 510.
[20] Dhawal Srivastava, "What Powers Do The Courts Have Under Writ Of Mandamus" (25 July 2020), https://blog.ipleaders.in/powers-courts-writ-mandamus/.
[21] Municipal Board v. Rashid Ahmad, AIR 163 1950.
[22] Sohanlal v. Union of India, 1957 AIR 529.
[23] Michael Shriney, "All You Need To Know About The Writ Of Prohibition" (21 March 2022), https://blog.ipleaders.in/all-you-need-to-know-about-the-writ-of-prohibition/.
[24] Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233.
[25] S. Govinda Menon v. Union of India, AIR 1967 SC 1274.
[26] Neha Dahiya, "All You Need To Know About The Writ Of Certiorari" (24 March 2022), https://blog.ipleaders.in/all-you-need-to-know-about-the-writ-of-certiorari/.
[27] Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233.
[28] Syed Yakoob v. K.S. Radhakrishnan, 1964 AIR SC 47.
[29] Sivi Khanna, "All You Need To Know About The Writ Of Quo Warranto" (20 March 2022), https://blog.ipleaders.in/all-you-need-to-know-about-the-writ-of-quo-warranto/.
[30] University of Madras v. Govind Rao, AIR 1965 SC 491.
[31] Rajesh Awasthi v. Nandlal Jaiswal, AIR 2013 SC 78.
[32] Constitution of India, 1950, arts 32, 226.
[33] J.N. Pandey, The Constitutional Law of India (Universal Book Trade, 1980).