The right to Constitutional Remedies under Article 32 of Indian Constitution is a basic right. It provides that persons have the privilege to petition the Supreme Court (SC) for the implementation of other constitutionally protected Fundamental rights. Article 32 of Indian constitution covers the Right to Constitutional Remedies.

The Right to Constitutional Remedies has been thoroughly covered in this article. Examine more significant issues in Indian politics from the standpoint of UPSC exams.

Checkout the video on 'Right to Constitutional Remedies' and boost your preparation

Right to Constitutional Remedies (UPSC Polity Notes): Download PDF!

What are Constitutional Remedies?

Constitutional remedies are the legal rights and mechanisms available to citizens. This is to enforce their fundamental rights and to seek redress for any violation of those rights. These remedies are enshrined in the Constitution of India. They can be sought from the Supreme Court of India or the High Courts.

History of Right to Constitutional Remedies

• Dr. Ambedkar referred to Article 32 as the “spirit of the constitution and exceptionally heart of it.” The Supreme Court has included it in the fundamental structural regulation.
• Furthermore, with the exception usually provided by the Constitution, the right to petition the Supreme Court cannot be interrupted. This implies that, under Article 359, this prerogative is suspended during a national crisis.
• Article 32 designates the Supreme Court as the protector and guarantor of fundamental rights. Furthermore, the Apex Court retains original jurisdiction over the power to issue writs. This means that an individual may contact SC directly for a cure rather than through an appeal.
• Article 32 can only be invoked to get redress for basic rights established in Articles 12-35. 
• It does not exist for any other legal right for which many laws are available.

Learn more about the Making of the Constitution!

Legal Provision for the Constitutional Remedies

Articles 32 and 226 discuss constitutional remedies. Let’s talk about them.

• Article 32: According to Dr. Ambedkar, Article 32 is the heart and spirit of the Indian constitution since it empowers the Supreme Court to issue writs to enforce Fundamental Rights. The Supreme Court’s authority to issue writs falls within its original jurisdiction. The ability of the court to hear a case for the first time is referred to as original jurisdiction. Article 32 also provides for judicial review. This means that the Supreme Court has the authority to declare a statute unconstitutional if it violates any provision of the Constitution.
• Article 226 empowers High Courts to issue writs for the execution of Fundamental Rights. This article also discusses equality in all aspects. Article 226 empowers the high court with regard to jurisdiction to issue writs against various entities and other authorities in the event of a violation of basic rights.

Learn more about the Salient features of the Constitution!

Right to constitutional remedies (Article 32)

• Article 32 contains the following four provisions:
  • It guarantees the right to approach the supreme court with the help of appropriate proceedings for the enforcement of fundamental rights or in cases when they have been violated.
  • For the enforcement of fundamental rights, the supreme court is empowered to issue directions or orders in the form of writs.
  • The Parliament can also issue directions, orders, or writs of all kinds for the enforcement of fundamental rights.
  • Except for the cases of National Emergency, the right to constitutional remedies shall not be suspended under Article 359 of the constitution.
• Without the violation of the fundamental rights article, 32 cannot be invoked.
• Thus, article 32 confers a concurrent jurisdiction instead of an exclusive one.
• A person can seek a Remedy from either the High Court or Supreme Court in case of violation of fundamental rights.

Also, read Major Committees in the Indian Constituent Assembly here!

What is a Writ?

A writ is a formal, legal document that is issued by a court or other authority to compel someone to do or not do something. Writs are used in a variety of legal contexts, including civil, criminal, and constitutional law.

Types of Writs issued by the courts

• The constitution of India has mentioned 5 types of writs that can be issued upon violation of fundamental rights.
• These rates include Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto.
• Under Article 32 Supreme Court can issue the rates, whereas under Article 226 High Court has the authority to issue writs.
• Under Article 226 High Court has discretionary power to issue writs under its jurisdiction, whereas the Supreme Court can invoke it across National territory.
• The high court can also issue writs against ordinary legal rights apart from violation of fundamental rights.

Study the NCERT Notes on Types of Writs in India here.

Habeas Corpus – ‘To have the body of’.

• It is an order to produce the body of the detainee before the court to the person who has detained another person.
• In such cases, the cause of detention is determined by the court.
• The person should be set free in case the detention is found to be illegal.
• In case of arbitrary detention, protection of individual liberty is granted.
• Such type of writ can be issued against both the state and a private citizen.
• To seek constitutional remedy, a person can approach the court on behalf of the aggrieved person.
• A Habeas Corpus writ is not issued in cases of lawful detention, contempt of court or legislature, detention by a competent court, and in situations outside the court’s jurisdiction.

Mandamus – ‘We Command’.

• It is a command issued by the court to a public official to perform the official duties which have failed or been refused to perform.
• It can only be filed when the aggrieved person approaches the court.
• Such writ cannot be issued against a private individual or body when the duty is discretionary, against the President, Governor, or chief justice of high courts.

Prohibition – ‘to forbid’.

• It is issued by a higher court to a lower court or tribunal to prevent the excess jurisdiction of the lower court.
• It can be only issued against a judicial or a quasi-judicial body.
• It cannot be issued against any private individual.

Know the Difference between Act and Law here.

Certiorari – ‘to be certified/informed.’

• It is issued by a higher court to a lower court or tribunal in order to transfer a case or nullify a particular order.
• It is issued when there is an excess of jurisdiction, or there is a lack of jurisdiction, or a faulty judgment has been passed.
• The writ of certiorari is both preventive and curative.
• It can be issued against judicial and quasi-judicial bodies along with some administrative authorities.
• It cannot be issued against any private individual.

Study the NCERT Notes on the Right to Equality here.

Quo-Warranto – ‘by what authority or warrant.’

• The court issues this writ to enquire about the legal claim of a person holding a public office.
• Such writ can be issued for public office or permanent character but not for the case of Minister or private office.

Learn more about the Preamble to the Constitution!

What is a Writ Petition?

A writ petition is a petition or application filed in a High Court or the Supreme Court of India. It is about the issuance of a writ to enforce a fundamental right or to protect a legal right. 

Constitutional Provisions of Writ Jurisdiction

• The High Court’s writ jurisdiction is specified in Article 266 of the Indian Constitution, which allows the High Court the right to issue prerogative writs, as well as the Supreme Court under Article 32.
• It is a discretionary power, which means the High Court has the authority to determine whether or not to issue a writ.
• Article 32 should not be invoked for encroachment on an individual right of the agreement (contract), nor should it be invoked for disturbing questions that are transferable under other laws.
• “Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises 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.

Note: If an earlier petition is pending in the High Court, filing another petition under Article 32 in the Supreme Court on the same facts for the same remedy is considered an abuse of the court’s procedure.

Learn more about the Major Amendment of the Constitution!

Significance of Constitutional Remedies

Some of the specific benefits of constitutional remedies include:

• Constitutional remedies provide a legal framework for individuals to protect their fundamental rights. If a person's fundamental right is violated, they can approach the Supreme Court or the High Court for relief.
• Constitutional remedies hold the government and its agencies accountable for their actions. If the government or its agencies violate a person's fundamental right, the courts can issue writs, orders, or directions to compel them to take corrective action.
• Constitutional remedies promote the rule of law by ensuring that everyone is equal before the law. No one is above the law, including the government and its agencies.
• Constitutional remedies provide access to justice for all individuals. This is regardless of their social or economic status. Anyone can approach the Supreme Court or the High Court for relief, even if they cannot afford to hire a lawyer.

Learn more about the Sources of the Indian Constitution!

Restrictions on Fundamental Rights

• Provision for Basic Rights Violations: Article 13 of the Indian constitution stipulates that all legislation that is inconsistent with or violates any of the fundamental rights is invalid.
• The Supreme Court (Article 32) and the high courts have been given this authority (Article 226).
• The government may also impose limits in the interest of morals and public order. During a state of emergency, the six freedoms are also automatically suspended or restricted.

Learn more about the difference between written and unwritten constitutions!

Important judgments related to Article 32

• The Supreme Court declared in the Chandra Kumar case (1997) that the writ jurisdiction of both the High Court and the Supreme Court is part of the basic framework of the Constitution.
• In A.K. Kripak v. Union of India, the Supreme Court ruled that the selection list of the Indian Forest Service should be quashed since one of the shortlisted applicants was an ex-officio member of the selection committee.
• In C.G. Govindan v. State of Gujarat, the court refused to issue a writ of mandamus against the governor for failing to approve the determination of court personnel pay by the Chief Justice of the High Court under Article 229.

Learn more about the Constitutional Assembly Debates!

Recent observations related to Article 32

• The Supreme Court recently moved from the Delhi High Court the matter regarding land usage for the national capital’s Central Vista project to itself. In any case, the petitioners had not requested such a move.
• Recently, the Supreme Court expressed its worry that the High Courts are not exercising their constitutional authority in numerous cases concerning personal liberty.
• The Supreme Court recently moved from the Delhi High Court the matter regarding land usage for the national capital’s Central Vista project to itself. In any case, the petitioners had not requested such a move. 
• During a recent hearing of a plea, the Chief Justice of India (CJI) stated that the court is attempting to discourage petitions filed under Article 32.

Study the NCERT Notes on Schedules of the Indian Constitution here.

Testbook is a one-stop solution for all your exam preparations. Be it preparing for UPSC, SSC, Banking, Railways, or any other competitive exams. You can have access to study material for different subjects and even check your progress through our daily quizzes, mock tests, question banks, etc. Stay updated with current affairs and classroom sessions.

Download the Testbook App now!!