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Posted by on Mar 15, 2014 in FRs & DPSP |

Article 32 – Right to Constitutional Remedies

All fundamental rights that are included in Part III of constitution are meaningless without providing effective measures of enforcement for that Fundamental Rights. So Article 32 is also a Fundamental right to seek remedy against violation of other fundamental rights.

Article 32

The SC ruled that Article 32 is a basic feature of constitution and can’t be restricted or taken away by an amendment to the constitution. Article 32 provides SC and HC to issue writs for enforcement of Fundamental Rights which are as follows:-

Habeas Corpus

  • It is a Latin term which literally means ‘to have the body of’. It is basically an order of court to person who has detained another to produce latter before the court, to check cause and legality of detention (to set free detained person if no lawful means of imprisonment). So this writ under article 32 is a powerful measure against arbitrary detention either by private individuals or executive.
  • However Habeas Corpus under Article 32 can’t be issued if a) detention is lawful, b) proceeding is for contempt of a legislation or court order and c) detention is outside jurisdiction of court.

Mandamus

  • It literally means ‘we command’. It is kind of reminder or warning to a public official or public corporation to perform his/its legal duties which he has refused to perform or no other legal remedies are available for enforcement of his duties.
  • Mandamus under Article 32 can’t be issued against private individuals or body, President, Governors, and against discretionary duties of public official.
  • The SC can issue Mandamus under Article 32 only for enforcement of Fundamental Rights but HC can issue for enforcement of statutory/constitutional duties of public official or government or tribunal.

Prohibition

  • It means ‘to forbid’. This is issued by SC or HC to an inferior court or tribunal to prevent latter from exceeding its jurisdiction with which it is not legally vested. Prohibition can be used only against judicial or quasi-judicial body.
  • Prohibition under Article 32 directs inactivity unlike Mandamus that directs activity. Prohibition is not available against administrative authorities, legislative bodies or private bodies.

Certiorari

  • It means ‘to be certified’. It can be issued by SC or HC against inferior court or tribunal to transfer cases pending or squash orders of latter in a case on grounds of exceeding jurisdiction or error of law.
  • Unlike Prohibition which is preventive only, Certiorari is both preventive as well as curative. In 1991, SC ruled that Certiorari can be issued against administrative authorities affecting rights of individuals. So this writ can be issued against judicial and administrative authorities but not against private and legislative bodies.

Quo Warranto

  • It means ‘by what authority or warrant’. It is issued by court to check legality of claim of person to public office, by what authority he is entitled to hold this office. But this can be issued only against substantive public office of permanent nature (created by acts or constitution).
  • This Writ can’t be issued in cases of Ministerial office or Private office. Only this writ can be used by any interested person unlike other fours which can be used by only aggrieved person.

Scope to Issue Writs – SC v/s HC

  • The SC can issue writs under Article 32 only for enforcement of Fundamental rights but HC can also issue writs for enforcement of ordinary legal rights. Such as if state govt imposed any restriction on free inter state trade & commerce outside Article 302 to 307 then a writ can be issued by High Court against such executive or legislative action.
  • The SC can issue writs under Article 32 against any person/govt in whole territory of India where HC has limited territorial jurisdiction only in that particular state.
  • The SC can’t refuse to exercise its writ jurisdiction under Article 32 but HC has discretionary powers to issue writs such as issue Mandamus against statutory duties of public official etc.
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