Search
  • Legis Scriptor

Right to constitutional remedies


Authored By- Anjali Rawat

Keywords: Constitution, Citizen, Rights, Limitation, Amendment

Abstract

The Constitution of India recognizes rights which are called fundamental rights. These rights are enforceable, and therefore the constitution indicates how an aggrieved citizen can enforce their rights. The law also protects and provides the remedies which are available to an aggrieved citizen. In this article, the author will examine the ways in which during which citizen’s rights are often enforced and therefore the remedies available to an aggrieved applicant.


Introduction

Article 32 of the Indian Constitution gives the right to individuals to maneuver to the Supreme Court to hunt justice once they feel that their right has been ‘unduly deprived’. The apex court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution because it is taken into account ‘the protector and guarantor of Fundamental Rights’.


Under Article 32, the parliament also can entrust the other courts to exercise the facility of the Supreme Court, as long as it’s within its jurisdiction. And, unless there is some constitutional amendment, the rights guaranteed by this text can’t be suspended. Therefore, it is said that a right which is assured to an individual is bound to individuals for enforcement of fundamental rights by this text. Because, the law provides the right to a private person to directly approach the Supreme Court without following the lengthier process of moving to the lower courts. Therefore, the main purpose of the ‘Writ Jurisdiction’ under Article 32 is that the enforcement of the Fundamental Rights.

Nature of Writ Jurisdiction

The nature of Writ Jurisdiction provided under this is discretionary. There are five important factors guiding this discretion. These are locus standi, alternative relief, res judicata, the question of fact, laches.


Types of Writs

There are five sorts of Writs as provided under Article 32 of the Constitution:

1. Habeas Corpus

It is one of the important writs for private liberty which says “You have the Body”. The purpose of this writ is to hunt relief from the unlawful detention of a private. It is for the protection of the individual from being harmed by the executive system and for safeguarding the liberty of the individual against arbitrary state action which violates the fundamental rights under Articles 19, 21 & 22 of the Indian Constitution. This writ provides immediate relief just in cases of unlawful detention.

In the case of ADM Jabalpur v. Shivakant Shukla[1] which is additionally referred to as the Habeas Corpus case, it had been held that the writ of Habeas Corpus can’t be suspended even during the emergency (Article 359).


2. Hearing/ Quo Warranto

Writ of hearing implies thereby “By what means”. This writ is invoked in cases of public offices and it is issued to restrain persons from acting publicly office to which he’s not entitled to. Although the term ‘office’ here is different from ‘seat’ in the legislature but still a writ of hearing can roll in the hay reference to the post of Chief Minister holding an office whereas a writ of hearing can’t be issued against a Chief Minister, if the petitioner fails to point show that the minister is not properly appointed or that he is not qualified by law to hold the office.

In the case of G.D. Karkare v. T.L. Shevde[2], the Supreme Court of Nagpur observed that “In proceedings for a writ of hearing, the applicant doesn’t seek to enforce any right of his intrinsically nor does he complain of any non-performance of duty towards him. What’s in question is that the right of the non-applicant to carry the office and an order that’s passed is an order ousting him from that office.”


3. Mandamus

Writ of Mandamus means “We Command” in Latin. This writ is issued for the right performance of mandatory and purely ministerial duties and is issued by a court to an inferior court or government officer. However, this writ can’t be issued against the President and therefore the Governor. Its main purpose is to make sure that the powers or duties aren’t misused by the administration or the chief and are fulfilled duly. The courts are unwilling to issue a writ of mandamus against high dignitaries just like the President and therefore the Governors. In Advocates on Records Association v. Gujarat[3], the Supreme Court ruled that the judges’ issue is a justifiable issue and appropriate measures are often taken for that purpose including the issuance of mandamus.


4. Certiorari

Writ of Certiorari means to be certified. It’s issued when there is a wrongful exercise of the jurisdiction and therefore the decision of the case is predicated thereon. The writs are often moved to higher courts just like the Supreme Court or the Supreme Court by the affected parties.

In Surya Dev Rai v. Ram Chander Rai & Ors[4], in this case, the Supreme Court has explained the meaning, ambit, and scope of the Writ of Certiorari. Also, during this, it had been explained that Certiorari is usually available against inferior courts. The writ is not available against the equal or a higher court, i.e., it can’t be issued by a Supreme Court against any Supreme Court or benches much less to the Supreme Court and any of its benches.

5. Prohibition

It is a writ directing an inferior court to prevent doing something which the law prohibits it from doing. Its main purpose is to stop a lower court from exceeding its jurisdiction or from acting contrary to the principles of Natural Justice.


In the case of Bengal Immunity Co. Ltd[5], the Supreme Court acknowledged that where an inferior tribunal is shown to possess seized jurisdiction which doesn’t belong thereto than that consideration is irrelevant and therefore the writ of Prohibition has to be issued as a right.


Amendments to Article 32

A ‘Anti-freedom’ clauses which was included in Article 32 by the 42nd Amendment. Such an amendment was made during the time of emergency when it was passed to scale back ‘both directly and indirectly’ the jurisdiction of the Supreme Court and therefore the High Courts to review the appliance of fundamental rights. Then the 43rd Amendment of the Indian Constitution was passed which repealed Article 32A immediately after the emergency was revoked. Following the amendment, the Supreme Court again gained the facility to quash the state laws. Also, the High Court’s got the facility to question the constitutional validity of central laws.


Limitations to Article 32

There are certain circumstances during which the citizens don’t get the privileges which they used to under Article 32:

1. Under Article 33, the Parliament is empowered to form changes within the application of Fundamental Rights to soldiers and therefore the police are empowered with the duty to make sure proper discharge of their duties.

2. During the operation of Martial law in any area, a person could also be indemnified by the Parliament, if such person is in the commission of the state or the central government for the acts of maintenance or restoration of law and order under Article 34.

3. Under Article 352 of the Indian Constitution when an emergency is proclaimed, the guaranteed Fundamental Rights of the citizens remain suspended. Also, Fundamental Rights guaranteed under the Article 19 is restricted by the Parliament under Article 358 during the pendency of an emergency.

4. Article 359 confers the power to the President to suspend Article 32 of the Indian Constitution. The order is to be submitted to the Parliament and the Parliament may disapprove the President’s order.


Conclusion

The constitutional remedies are provided to the citizens for powerful orders with immediate effect. And, the writs are mostly invoked against the state and are issued when the PILs are filed. The Writ Jurisdictions which are conferred by the Indian Constitution though have prerogative powers and are discretionary in nature and yet they are unbounded in its limits. The discretion, however, is exercised on the legal principles. Therefore, the first essential thing on which the constitutional system is based is the absence of arbitrary power. Hence, the decision must be taken on the basis of sound principles and rules and should not be based on whims, fancies, or humor. And if a decision is not backed by any principles or rules, then such a decision is considered arbitrary and is taken not in accordance with the rule of law.

[1] (1976)2 SCC 521 [2] AIR 1952 Nag 3331 [3] (1993) 4 SCC 441 [4] 2003 (6) SCC 675 [5] AIR 1955 SC 661

References-

1. ADM Jabalpur v. Shivakant Shukla(1976)2 SCC521

2. G.D. Karkare v. T.L. Shevde AIR 1952 Nag. 333.

3. R.V. Dusheath (1950)2 All ER 741 at p. 743 per Lord Goodard C.J.

4. Advocates on Records Association v. Gujarat (1993) 4 SCC 441

5. Bengal Immunity Co. Ltd AIR 1955 SC 661

CONTACT US

Website:-          www.Legisscriptor.com

E-mail:-            Info.legisscriptor@gmail.com

For Internship:- Legisscriptor.internship@gmail.com

Contact info:-    8851264387 (WhatsApp Only)

© 2020 by Legis Scriptor. 

  • LinkedIn
  • Instagram