Explained: Right to Constitutional Remedies

In this article the author has explained the meaning of The Right to Constitutional Remedies with the help of

Understanding the Right to Constitutional Remedies

Part III of the Indian Constitution talks about Fundamental Rights, but merely writing down a list of rights is not enough. There ought to be a way through which these rights are realized in practice and accordingly defended against any attack on these essential rights guaranteed by the constitution to each and every citizen of India.

Right to constitutional remedies is the way through which this can be achieved. Dr Ambedkar considered the Right to Constitutional Remedies as the ‘heart and soul of the constitution. This is so because it entitles the citizens of our country to move to the Supreme Court of High Court for enforcement of these rights and along with that the State is forbidden from making laws that would violate or be in contravention with any of these Fundamental Rights.

The Right to Constitutional Remedies gives the citizens the right to approach the Supreme Court or the High Court to get any fundamental right restored in case they are violated. Thereafter the Supreme Court or High Court can issue an order or directives for the government regarding the enforcement of these rights.

The right to approach Supreme Court and High Courts

This right gives an insight into 5 types of writs that can be granted by the Courts under Article 32 and 226 of the Constitution of India. The jurisdiction may be exercised by the High courts under Article 226 and by the Supreme Court under Article 32 of the Constitution.

The right to approach the Supreme Court under Article 32 is a Fundamental Right in itself. It provides a guaranteed, summary and quick remedy for enforcement of the fundamental right as in this case the person can straight away go to the Supreme Court without approaching any of the Lower Courts.

Article 32 states that the Supreme Court “shall have the power to issue directions, or orders or writs, including writs in the nature of habeas corpus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by this part. The right guaranteed by this article “shall not be suspended except as provided otherwise for by this constitution.   

In case enforcement of fundamental rights, the Supreme Court has original jurisdiction but not exclusive, it is concurrent with the High Court’s jurisdiction as given under Article 226 of the Indian Constitution. However, the Supreme Court has ruled that wherever the right is infringed the aggrieved should first move the High Court.

What are Writs?

Writs are written orders provided by the Supreme Court of India so as to provide constitutional remedies in case of violation of any of the fundamental rights and accordingly the Constitution has empowered the Supreme Court and the High Court to issue orders or writs. These were borrowed from the English Laws where they were known by the name of ‘Prerogative Writs’.

Types of Writs

The 5 types of writs followed in India are:

1. Habeas Corpus – this writ is enforced in order to protect the fundamental right of liberty of a citizen of our country from unlawful detention if the grounds of arrest are not lawful or satisfactory. It can be issued against both public bodies as well as private individuals.

In Kanu Sanyal vs. District Magistrate , the Supreme Court opined that while dealing with a petition for habeas corpus, the court may examine the legality of detention without detaining the person to be produced before.

• Mandamus – this writ can be issued when the court gets to know that the particular office holder is not his/her legal duty and is ultimately infringing the right of an individual. This writ can be issued against any public body, corporation, an inferior court, a tribunal or the government, but is not available against private individual or body.

In S.P.Gupta vs. Union of India, here the judges of the court were of the view that the wit cannot be issued against the President of India for fixing the number of High Court Judges and vacancies.

• Certiorari – in this writ the court is empowered to order a lower court or any other authority to transfer a pending matter to the higher authority or court. This writ can be issued against both judicial and quasi-judicial authorities as well as administrative authorities. However it isn’t available against the legislative bodies and private individual/bodies.

In Surya Dev Rai vs. Ram Chander Rai & Ors. , the Supreme Court explained the ambit and scope of this writ and stated that Certiorari is always available against inferior courts and not against equal or higher courts.

• Prohibition – this writ is issued by a higher court i.e. either the Supreme Court or any of the High Court’s when any of the lower court considers a case going beyond its jurisdiction. This is issued only against judicial and quasi- judicial authorities.

In East India Commercial Co. Ltd. Vs. Collector of Customs, a writ of Certiorari was passed directing an inferior tribunal prohibiting it from continuing with the proceeding and held that the proceeding is beyond the jurisdiction of the tribunal.

• Quo Warranto – this simply means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of a claim of a person to a public office. This helps in thereby preventing illegal usurpation of public office by a person. This writ can be sought any person and he/ she might not necessarily be an aggrieved individual.

In Jamalpur Arya Samaj vs. Dr. D. Ram, here it was held that the writ of quo warranto cannot lie against an officer of a private nature, also it is very much important that the office should be of substantive character.

Lawmaker’s ideology

Dr. B. R. Ambedkar had said that the rights invested with the Supreme Court could not be taken away until and unless the Constitution is amended and thus it is one of the greatest safeguards that can be provided for the safety and security of an individual.

In addition, members of the drafting committee also said that this right is fundamental to all the fundamental rights guaranteed in the constitution.

Moreover, it has even been debated whether the fundamental rights including this one could be suspended or limited during the period of emergency and it has been held that this article cannot be suspended during the period of emergency.

Judicial Precedents

During the emergency, in Additional District Magistrate, Jabalpur vs. S S Shukla (1976), the Supreme Court held that a citizen loses his / her right to approach the court as given under Article 32.

Along with this, the constitutional experts have opined that it is at the discretion of the Hon’ble Supreme Court and each individual judge that whether an intervention is warranted in a case or it could also be heard first by the High Court.

In Romesh Thapar vs. State of Madras (1950), the Supreme Court held that Article 32 provides a guaranteed remedy for enforcement of fundamental rights. The Court has been constituted as the protector and guarantor of the Fundamental Rights and thus with this responsibility laid upon the court, it cannot refuse applications seeking protection in case of infringement of any of the fundamental rights.

Thus the tag conferred upon the right to constitutional remedies of being the ‘Heart and Soul of the Indian Constitution is very much correct.