As India is celebrating its 75th year of Independence, so it is really very
important of its citizen to know the constitutional remedies which are given to
them directly through constitution.
The speech given by DR. Ambedkar clearly indicates its unique position in the
constitution "if I was asked to name any particular Article in the Constitution
as the most important - 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."
Is is very important to mention that fundamental right is of no use if we don't
have the proper mechanism to make these available rights to the citizens. It is
the remedies only which gives the rights the real meaning. There will be no use
of those long list of the fundamental rights without the constitutional remedies
In our constitution these remedies are available under article 32 by which we
can approach to the supreme court in case of the infringement of the fundamental
rights, it is to be noted that article 32 is also one of the fundamental rights.
Article 226 also gives power to High courts to issue writs in case of the
infringement of the fundamental rights.
Provisions In The Constitution
Article 32 contain 4 clauses:Clause 1 -
"The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this Part is
Is says that in case of breach of the fundamental rights by the state or other
authorities as explained in article 12 , one can direct approach to the apex
court i.e supreme court .
Supreme court has both original as well as concurrent jurisdiction in case of
violation of fundamental rights
Original jurisdiction as an indivisual can directly approach to the supreme
court without following the procedure of appeal where as concurrent jurisdiction
as in case of violation of fundamental right we can file writ in both supreme
court under article 32 or high court of the state under 226.
However it is said that the relief is available in both supreme court and Hight
court , it is held by the supreme court that one should first approach to the
high court in case of infringement of fundamental rights.
In the Chandra Kumar case
(1997), the SC ruled that the writ jurisdiction
of both the high court and the Supreme Court constitute a part of the basic
structure of the Constitution.
Clause 2 - "The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part."
These writs has been incorporated in the constitution from the united kingdom
but it is not applied in very strict sense in India as applied there.
Clause - 3
Habeas Corpus: The meaning of the word "Habeas corpus" is "to have the body". This writ is
used against unlawful detention of an individual or where there is no
suitable reason and ground for the valid detention.
Therefore, one may approact to either hight court or supreme court for the
enforcement of their fundamental rights.
Mandamus: It is a latin word which means "we command". This writ is used by the
Indian courts against the public office holders in case they are not
performing their work and duties in the manner prescribed.
This writ can be issued against president as well as Governor of the state
and, cannot be issued against private organizations.
Prohibition: In literal term it means "to forbid". This writ is issued by the higher
courts to the lower courts in case they exceed their jurisdiction or working
out of jurisdiction.
Quo Warranto: The literal meaning of the word is "by what authority or warrant". This writ
is used to resolve a dispute over whether a specific person has the legal
right to hold the public office that he or she occupies.
Certiorari: the literal meaning of the term is "to be informed". This writ is issued
against the judicial or quasi- judicial body by the higher courts to
transfer any case or to quash the case. It cannot be issued against the
administrative or legislative or private body.
"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 all or any of the powers
exercisable by the Supreme Court under clause (2)."
This clause gives power to parliament which further empowers other courts to
exercise the same power given to the supreme court in its local jurisdiction.
It is also very well connected with Article 139 in which parliament may by the
law confers power to the supreme court to issue all the 5 writs along with the
directions and orders.
"The right guaranteed by this article shall not be suspended
except as otherwise provided for by this Constitution."
This clause mention the exception that on the proclamation of an emergency by
the president under Article 352, the fundamental rights will be suspended
therefore one cannot move to either supreme court or high court under Article 32
and 226 Respectively in case of violation of fundamental rights.
Article 32 gives incredible powers to supreme court to issue writs in case of
the violation of the fundamental right by the states or the public authorities.
which in other way secure the rights of the person. Hence it is proved that
where there is rights there is remedies.