ARTICLE 32: RIGHT TO CONSTITUTION REMEDIES

ARTICLE 32: RIGHT TO CONSTITUTION REMEDIES

Author: Dhanavel B, B.A.LL.B., Government Law College Dharmapuri

INTRODUCTION

“An article without which this Constitution would be a nullity – I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it”[1] – B.R. Ambedkar.

Fundamental rights are the outcome of the struggles that our people suffered during the colonial period under British rule. Our people did not have a right to speak, the right to form an association, the right to equality, and so on. Even our people did not have a guardian to look over their limited rights provided by the British. All the suffering and pain of the colonial period shaped our constitution. Various fundamental rights are provided by the Indian constitution to the people of India. Though there are different fundamental rights available in the Constitution, the right to constitutional remedy is a significant provision. Because it is a guardian provision for all other fundamental rights, it provides a constitutional obligation to the Supreme Court of India to provide constitutional remedies for safeguarding the fundamental rights that are provided by the Indian constitution.

Keywords (Minimum 5): enforcement of fundamental rights, writ of habeas corpus, writ of mandamus, writ of prohibition, writ of quo warrant, writ of certiorari, appropriate proceedings, suspension of fundamental rights

LEGAL PROVISION

Article 32 of the Constitution of India – “Remedies for enforcement of rights conferred by this Part.

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[2]”.

INSTRUMENTS FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS

Writ of Habeas Corpus 

Indian constitution says, “No person shall be deprived of his life or personal liberty except according to the procedure established by law”[3]. Illegal detention of a person is a direct violation of personal liberty. So, any detention or confinement should be according to the procedure which is established by the law. Confinement not only covers physical confinement but also covers control and custody over the person. The apex court has the power to enquire into the matter of confinement whether it is legal or illegal. If it finds the detention is not according to the procedure, it can declare the detention illegal and immediately order to release of such person. The literal meaning of the Latin term Habeas Corpus is, “You should have the body”[4]. This writ empowers the Supreme Court to safeguard the person physically. The Supreme Court in the case of Sunil Batra vs Delhi Administration[5] held that “any interested person can file a writ of Habeas Corpus on behalf of the denied person”. Unlawful detention is not an essential part of the writ petition before it is disposed of by the court. When the court found prima facie in the writ petition. It issues a rule nisi for show cause for detention by the person who detained a person. If the court finds illegality in the cause, it orders to release the person immediately. The Supreme Court has absolute power to issue a writ of Habeas corpus against any person who kept the aggrieved person in his custody to show cause for detention and further, it can order to release him if it finds illegality in the detention[6].

Writ of Mandamus 

The Supreme Court can compel any subordinate court, tribunal, public authority, government, and anybody to do any act or restrain from doing any act of a public nature which is legally entitled to do or legally not entitled to do. It’s a form of command. The term Mandamus means, “we command”[7]. Under this writ, the Supreme Court has the power to compel any administrative authority if he must act in a public nature. In the case of Oriental Bank of Commerce vs Sunder Lal Jain & Anr[8], the Supreme Court held that “the petitioner of this writ should have the right to compel the authority to perform his duty towards him”. Furthermore, he may have legal interests or his rights are in imminent danger of being invaded[9]. Importantly, the right to compel should be provided to him by statute not by a contract. So, a writ of mandamus cannot be invoked to compel the performance of contractual liability. Before invoking the writ of mandamus, the concerned authority should refuse to perform his legal duty of a public nature towards the aggrieved person. Further, observing the case of Manjula Manjari Dei v. M.C. Pradhan, Director of Public Instruction[10], a writ of mandamus cannot be invoked in matters of a discretionary nature. In the above case, a writ of mandamus was filled to compel the Director of Public Instruction to select the petitioner’s book for schools. The court refused the writ because selecting books for schools is at the discretion of the Director of Public Instruction.  

Writ of Prohibition 

Writ of Prohibition is a preventive remedy. This writ can be invoked by the person against any judicial and quasi-judicial bodies for restraining such bodies from what they are about to do. The main condition for a writ of prohibition is that an alleged judicial or quasi-judicial body is about to do an act without jurisdiction. This writ cannot be invoked against an executive body. If a judicial or quasi-judicial body acts partly within the jurisdiction and partly outside the jurisdiction, the Writ of Prohibition will lie in the part of the act that is acted by it without the jurisdiction. Once a judicial or quasi-judicial body pronounces its decision over the matter which is decided by it without jurisdiction, a writ of prohibition cannot be invoked against such judicial or quasi-judicial body. Further in the case of Prudential Capital Markets Ltd v. The State of Andhra Pradesh and others[11], the court held once the order was executed, the writ of prohibition could not be invoked.  

Writ of Quo Warranto

This writ empowers the citizens to question the person’s appointment in an office of a public nature. It protects the office of a public nature from the person’s employment by force or any illegal manner. Latin term Quo Warranto means, “by what warrant (or authority)”[12]. When the writ of Quo Warranto is invoked by the person, the court calls the person who is against the writ filed to show in what authority he holds the alleged office. If the court finds he holds such office of a public nature illegally, it orders the person to leave his office immediately. Public office means the office in which the general public interests exist. Writ of Quo Warranto will not invoke against any office of private nature. It only can be invoked against public offices. In the case of Jamalpur Arya Samaj v. D. Ram[13], the petitioner filed a writ of quo warranto against the appointment of members of the working committee of a private religious association. The court refused the writ on the grounds of appointment in the office of a private nature. There is no limitation period for filing this writ petition in the Supreme Court because the cause of action arises every day on how long the alleged person holds the office. Further, the petitioner need not have a specific interest in the alleged office. The main point to decide in this writ is whether the person holding public office legally or illegally.

Writ of Certiorari 

The Supreme Court can call the records of proceedings from the subordinate courts and tribunals. If it finds any illegality, it will quash it. The Writ of Certiorari is the correctional remedy. The Supreme Court held in the case of Gulab Singh and Ors v. Collector of Farrukhabad and Ors[14] that “the writ of certiorari can issue against any legal authority who must act judiciary to determine questions affecting the rights of subjects”. Judicial, quasi-judicial, and administrative bodies who fulfil the above conditions come under the ambit of that writ. Majorly there are three grounds to issue the writ of certiorari, The first one is want or excess of jurisdiction, in this ground the said writ is issued for correcting errors of jurisdiction of judicial or quasi-judicial functioning bodies. Errors of the jurisdiction include the ultra vires acts of legal authority, exercising powers without fulfilling the conditions of the law, acquiring jurisdiction from unconstitutional statutes, exercising powers for an improper purpose, acting under bad faith, and so on. The second one is a violation of the principles of natural justice, the rule of audi alterm partem which means listen to the other side and the doctrine of bias comes under the principles of natural justice. The Supreme Court can issue the writ of certiorari against the decisions of judicial or quasi-judicial bodies if there are no opportunities given to the parties to defend their cases or if the decision is arrived at by legal authority by the influence of bias. In the case of Gullapalli Nageswara Rao and Others Vs Andhra Pradesh State Road Transport Corporation and Anr[15], the court held that the objection against the policy of the particular department heard by the Secretary of the same department was biased. So, it violates the principles of natural justice. The third one is the error of law. The Supreme Court can correct the error of law apparent on the face of the record of legal authority. The function of a writ of certiorari quash the order of the legal authority and not to substitute a new order in its place. Because the Supreme Court acts as supervisory authority not as appellate authority under that writ.

  1. Exclusive Power of Supreme Court –

 As per article 32(2), the Supreme Court can issue writs “including writs like habeas corpus, mandamus, prohibition, quo warrant and certiorari”. Five writs mentioned in article 32(2) are inclusive. So, article 32 does not restrict the Supreme Court only to issue writs mentioned in that article. The Supreme Court held that “the Courts should abandon the laissez-faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies to make fundamental rights meaningful for the large masses of people. And this is permissible in the language of clause (2) of Article 32”[16]. Further, the apex court extended the scope of Locus Standi to allow any public-spirited person to approach the court for the enforcement of the fundamental rights of the needy people. The term Locus Standi means, “the right or ability to bring a legal action to a court of law, or to appear in a court”[17]. The Supreme Court can give extraordinary remedies for the enforcement of fundamental rights under Article 32. The Supreme Court is empowered to provide compensation for the violation of fundamental rights. It not only has the power to issue writs but also it has the power to issue directions or orders for the enforcement of fundamental rights. So, the Supreme Court’s power to provide constitutional remedies for the enforcement of fundamental rights is not limited, it can go to any extent to protect the fundamental rights of citizens.

  1. Manner Of Approach The Supreme Court

Approaching the Supreme Court for constitutional remedies for the enforcement of fundamental rights should be done by appropriate proceedings as per Article 32(1). The Supreme Court follows a liberal interpretation of the term “appropriate proceedings”. In any manner, the aggrieved person can approach the Supreme Court for the enforcement of his fundamental rights. Prescribing the hardened proceedings will cause restrictions on poor, disabled people, and ignorant people. In the case of Bandhua Mukti Morcha vs Union of India & Others[18], The Supreme Court ruled that “the letter of the aggrieved person sent to the court for the enforcement of his fundamental rights regarded as an appropriate proceeding”. Even The Supreme Court accepted postcards and telegrams addressed to any judges of the court regarding enforcement of the fundamental rights as appropriate proceeding[19]. Usually, the Supreme Court considers the appropriate proceedings based on the main purpose of proceedings which is enforcement of fundamental rights. Whenever fundamental rights are invaded by the acts of the administrative or legislature, the Supreme Court is empowered to provide appropriate remedies.

  1. Constitutional Obligation Of The Supreme Court      

In the matter of enforcement of fundamental rights, the Supreme Court and the High Courts have the power to provide remedies. There is no condition for the Aggrieved person to approach the High Court first and, afterwards approach the Supreme Court. The Supreme Court in the case of M. C. Mehta v. Union of India (Shriram-Oleum Gas)[20], ruled that the petitioner need not approach the High Court very first before approaching the Supreme Court. Due to the pending cases in the Supreme Court, aggrieved persons should approach the high court first if there is an effective remedy available there. If there is no effective remedy available, the aggrieved person can approach the Supreme Court directly. The right to enforce fundamental rights under Article 32 is a fundamental right of an aggrieved person but the right to enforce fundamental rights under Article 226 is a constitutional right. Therefore, the Supreme Court has the constitutional obligation to provide constitutional remedies for the enforcement of the fundamental rights of citizens. Notably, The Supreme Court does not entertain petitions under Article 32, if the matter has already been decided on merit by the high court. Because the rule of Res Judicata bars the Supreme Court from reopening the matter again[21]. But if the petition was dismissed not on merit by the high court then there is no bar to entertain the petition under Article 32[22]. The Term Res Judicata denotes, “a matter finally decided on its merits by a court having competent jurisdiction and not subject to litigation again between the same parties”[23].

  1. SUSPENSION OF ARTICLE 32

Article 32(4) provides the right to enforce fundamental rights only be suspended according to the provision of the constitution. Article 359 suspends the enforcement of fundamental rights by the courts during an emergency which is declared by the President under Article 352. In the case of ADM Jabalpur v. Shivkant Shukla[24], the Supreme Court held the right to constitutional remedies provided by Article 32 for the enforcement of fundamental rights is suspended during the national emergency as per Article 359. But later, article 359 was amended by the 44th Constitutional Amendment Act 1978. This amendment act excluded Article 20 and Article 21 from the ambit of Article 359. Currently, all fundamental rights shall be suspended during a national emergency but the protection in respect of conviction for offences under Article 20 and protection of life and personal liberty under Article 21 shall not suspended.

CONCLUSION & COMMENTS

Providing the right to constitutional remedies as the fundamental right to citizens clearly expresses how the makers of our Constitution decide to secure all fundamental rights from encroachment. Supreme Court acts very well to protect fundamental rights. It issues writs to secure fundamental rights and even provide compensation to aggrieved persons under Article 32. Further, it extends the scope of locus standi to allow public-spirited persons to fight for the enforcement of the fundamental rights of others. All the previous decisions of the Supreme Court regarding the enforcement of fundamental rights clearly show the Supreme Court is always right to break any barrier for the enforcement of fundamental rights as the guardian of the fundamental rights of the citizens.

REFERENCES

  1. Online Articles / Sources Referred
    1. Cambridge Dictionary, locus standi, English meaning – Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/locus-standi (last visited Aug 4, 2024).
    2. Definition of habeas corpus, https://www.merriam-webster.com/dictionary/habeas%20corpus (last visited Aug 3, 2024).
    3. Definition of res judicata, https://www.merriam-webster.com/dictionary/res%20judicata (last visited Aug 4, 2024).
    4. LII, quo warranto, LII / Legal Information Institute, https://www.law.cornell.edu/wex/quo_warranto (last visited Aug 3, 2024).
    5. mandamus, HarperCollins Publishers Ltd, https://www.collinsdictionary.com/dictionary/english/mandamus (last visited Aug 3, 2024).
  2. Cases Referred
  3. ADM Jabalpur v. Shivkant Shukla, 1976 SCR 172.
  4. Bandhua Mukti Morcha vs Union of India & Others, 1984 SCR (2) 67.
  5. Daryao And others vs The State of Uttar Pradesh and others, 1962 SCR (1) 574.
  6. Forward Construction Co. & ors. Etc. Etc vs Prabhat Mandal (Regd.) Andheri & ors, 1986 AIR 391.
  7. Gulab Singh and Ors v. Collector of Farrukhabad and Ors, AIR 1953 ALL 585.
  8. Gullapalli Nageswara Rao and Others Vs Andhra Pradesh State Road Transport Corporation and Anr, 1959 AIR 308.
  9. Jamalpur Arya Samaj v. D. Ram, AIR 1954 PATNA 297.
  10. C. Mehta v. Union of India (Shriram-Oleum Gas), (1987) 1 SCC 395.
  11. Maganbhai Ishwarbhai Patel vs Union of India and Anr, 1969 SCR (3) 254.
  12. Manjula Manjari Dei v. M.C. Pradhan, Director of Public Instruction, AIR 1952 ORI 344.
  13. Mohan Lal Sharma vs State Of Uttar Pradesh, (1989) 2 SCC 600.
  14. Ikram Hussain v. State of Uttar Pradesh & Others, 1964 SCR (5) 86.
  15. Oriental Bank of Commerce vs Sunder Lal Jain & Anr, (2008) 2 SCC 280.
  16. Prudential Capital Markets Ltd v. The State of Andhra Pradesh and others, 2000 (5) ALT 468.
  17. Sunil Batra vs Delhi Administration, 1980 SCR (2) 557.

 

  1. Statutes Referred
    1. Constitution of India

[1] Words of Dr. B.R. Ambedkar in Constituent Assembly Debates, Vol. VII, 953.

[2] India Const. art. 32.

[3] India Const. art. 21.

[4] Definition of habeas corpus, https://www.merriam-webster.com/dictionary/habeas%20corpus (last visited Aug 3, 2024).

[5] 1980 SCR (2) 557.

[6] Mohd. Ikram Hussain v. State of Uttar Pradesh & Others, 1964 SCR (5) 86.

[7] mandamus, HarperCollins Publishers Ltd, https://www.collinsdictionary.com/dictionary/english/mandamus (last visited Aug 3, 2024).

[8] (2008) 2 SCC 280.

[9] Maganbhai Ishwarbhai Patel vs Union of India and Anr, 1969 SCR (3) 254.

[10] AIR 1952 ORI 344.

[11] 2000 (5) ALT 468.

[12] LII, quo warranto, LII / Legal Information Institute, https://www.law.cornell.edu/wex/quo_warranto (last visited Aug 3, 2024).

[13] AIR 1954 PATNA 297.

[14] AIR 1953 ALL 585.

[15] 1959 AIR 308.

[16] Bandhua Mukti Morcha vs Union of India & Others, 1984 SCR (2) 67.

[17] Cambridge Dictionary, locus standi, English meaning – Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/locus-standi (last visited Aug 4, 2024).

[18] 1984 SCR (2) 67.

[19] Mohan Lal Sharma vs State Of Uttar Pradesh, (1989) 2 SCC 600.

[20] (1987) 1 SCC 395.

[21] Forward Construction Co. & ors. Etc. Etc vs Prabhat Mandal (Regd.) Andheri & ors, 1986 AIR 391.

[22] Daryao And others vs The State of Uttar Pradesh and others, 1962 SCR (1) 574.

[23] Definition of res judicata, https://www.merriam-webster.com/dictionary/res%20judicata (last visited Aug 4, 2024).

[24] 1976 SCR 172.