Right to Constitutional Remedies Under Article 32 And 226

Introduction

The Indian constitution confers some rights known as fundamental rights; these rights can be enforceable through the court by praying the right to constitutional remedies. Any citizen of India who suffers from a violation of his fundamental rights can enforce and protect his legal right. The law also provides remedies that are available to any aggrieved citizen. In this article, we discuss the right to constitutional remedies available to protect legal rights and how they can be enforced rights.

The constitution is a way where the aggrieved person can enforce his fundamental rights through the legal system. For example, suppose a person feels existing or threatened infringement of his fundamental rights. Then he can pray to the court for his fundamental right to constitutional remedies as an aggrieved party; the court will protect his such types of rights.

What Article 32 and Article 226 of the constitution of India say?

This part guarantees to move the Supreme Court by appropriate proceedings for the enforcement of the rights. The supreme court can incorporate writs like habeas corpus, mandamus, prohibition, quo warranto or certiorari, etc., whatever requires to establish any rights given by this part. For that, the court may issue bearings, requests, or writs.

The supreme court of India has jurisdiction under Article 32(2) of the constitution of India to entertain matters of issue regarding the enforcement of fundamental rights. As per the provision of Article 32, any aggrieved citizen of India has a right to move for enforcement action of his fundamental right to the supreme court.

In Ramesh Thappar v. State of Madras, (AIR 1950 SC 124), the Supreme Court held that the petitioner could directly move to the supreme court to protect and enforce his fundamental right without approaching the high court first. Here the court ruled out that article 32 of the constitution of India The supreme court can act as a protector and guarantor of fundamental rights of every citizen of India.[1].

Here, we should note that for the protection of fundamental rights according to the constitution of India, the supreme court has some limitations. For example, part III of the constitution of India clearly says the court can exercise jurisdiction to protect such fundamental rights only under articles 12 to 35 of the act.

If we are talking about enforcement of fundamental rights at the state level under article 226(1) of the act, the high court also has jurisdiction to entertain such types of matters. Let’s see the court observed that is given below.

In the case of “Article 143, of the Constitution of India; In the matter of” (AIR 1965 SC 745), the Supreme court observed that, The language used by Art. 226 in conferring power on the High Courts is very wide. Article 12 defines the “State” as including the Legislature of such State, and so, prima facie, the power conferred on the High Court under Art. 226(1) can, in a proper case, be exercised even against the Legislature.[2].

We can say that the jurisdiction of high courts is much broader than the supreme court; however, the territorial jurisdiction of the supreme court covers all over India. Compared to that, the high court cannot entertain regarding enforcement of fundamental rights all over India.  

Like the provision in Article 32, all high courts can exercise their territories’ jurisdiction to handle enforcement of such rights under Article 226. The high court will issue the writ to any citizen and authority if it is necessarily required in a particular case.

Within its territory’s jurisdiction, the high court can give direction, order, or writs to the government, any authority in the appropriate case covered in part III under Article 32 of the act.

What is Writ?

Writs mean a written order passed by the Supreme court of India to protect the violation of fundamental rights of citizens under the constitutional remedies.

Let’s know some facts about the Writs in India.

Writs of India come from the English law they know there as Prerogative writs. Before the year 1950, three high courts had the power to issue the writs. Calcutta, Bombay, and Madras High court had such power to issue the Writs with some specified limits. And other High Courts can not exercise that power.

But now, all high courts of India under Article 226 can issue the Writs and grant the remedies within their territories’ jurisdiction. In the constitution of India under Article 32, the parliament is also empowered to give power to any other court to issue the writs.[3]. 

What is a writ petition?

A writ petition means an application that an applicant files to the supreme court or high court for the review purpose of the order of the lower court. By filing this petition, an applicant prays to the superior court, like, the high court or supreme court, to interfere with the lower court’s decision.

According to the legal provisions in India, for enforcement of fundamental rights under the constitution of India, the prerogative writ jurisdiction has the supreme court of India and all high courts of the states.

What are the essentials for a Writ?

The primary essential requirement for filing a writ petition under Article 32 of the constitution of India before the supreme court is given below;

The first one is that there must be a violation of fundamental rights. Without infringement of fundamental rights, there is not possible that the court can entertain such a petition by using his discretionary power.

The second point is that that should be an independent remedy against any other alternative remedies. Suppose the alternative remedy is available in the law. Then, the writ petition cannot be filed based on the alternative remedy. Article 32 invokes only infringement of a fundamental right as given in the constitution of India.

In the case of M.C. Mehta v. Union of India, ( AIR 1987 SC 1086), the supreme court observed, The Supreme Court under Art. 32 (1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right, and under Art. 32 (2) the Court has the implicit power to issue whatever direction, order, or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right.[4].

Locus standi of Writ: 

Due to any legal wrong, the citizen gets legal injury caused by infringement of his constitutional rights. Or any duty is imposed in violation of any constitutional or legal provision, or without legal authorization, or any legal wrong, legal injury, or unfair burden is threatened. They can seek relief from the Court; under Article 226 of the Constitution, any public or social action group member can file an application in the High Court for an appropriate direction, order, or Writ.

In the infringement of any fundamental right of such a person or class of individuals, such person or class of persons may seek judicial remedy in the Supreme court under Article 32 for the legal wrong or injury inflicted to such a person or class of individuals.

What is the importance of the right to constitutional remedies?

It secures our fundamental rights. The Right to Constitutional Remedies is regarded as the most crucial fundamental right. It assists citizens in bringing a case to court in the violation of their fundamental rights.

What is the right to constitutional remedies in India?

Part III of the Constitution establishes legal remedies for protecting fundamental rights against infringement by the government or other institutions or people. It allows Indian citizens to petition the Supreme Court or High Courts to have their rights enforced.

What are the constitutional remedies for fundamental rights enforcement?

According to the Constitution of India part III under  Article 32(2), the Supreme Court will have the power to issue writs. The court may grant writs in the idea of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, which is appropriate for the requirement of any of the constitutional rights granted by this Part.

Types of Writs

The supreme court and the high court has the power to issue the writ for protection of various kinds of a fundamental right if there is violence by any individual or any authority infringements of citizen’s right. Through the filing of a writ, he can enforce his such types of legal right by the court. 

The writ is an order passed by the court directing the acceptance party to do or prevent a particular action caused by infringement of the applicant or citizen’s fundamental right. Various types of writs can issue to enforce a fundamental right which is governed under the Indian constitution act that follows:

Writ of Habeas Corpus

There is no right to any citizen or authority to confine or detain anyone illegally or unlawfully; when that kind of action comes on the record; That is the violence of fundamental rights the court can protect by enforcing such right with the Writ of habeas coups. The essential ingredient of this writ is to seek relief against the illegal detention of him or herself or any other person.

Through this writ, the court may pass the order to the detainee to produce a person before the court, illegally or unlawfully detained. The court also informs to narrate the grounds and reason why they make such detention. After all, if the court finds any unlawful or illegal activities done in the detained process. Then, the court can free that detainee with the appropriate order to set him free after the proves of unlawful confinement. 

In the case of Dhananjay Sharma v. State of Haryana, (AIR 1995 SC 1795), the supreme court held, “Whenever a question is raised regarding the illegal detention of a citizen in a writ of Habeas Corpus and the Court issues the rule nisi, a duty is cast on the State, to satisfy the Court that the detention of the citizen was legal and in conformity not only with the mandatory requirements of the law but also with the requirements implicit in Article 22(5) of the Constitution of India.”[5].

Who is eligible to apply?

  • The writ can be applied for the detained by a family member, friend, or anybody else interested in the inmate.
  • If the court believes that issuing the writ is in the good interests of justice, it can do so suo-motu after receiving any information.

In Icchu Devi Choraria v. Union of India, (AIR 1980 SC 1983), the Supreme Court observed that even a postcard written by a detenu from jail has been sufficient to activate the Court into examining the legality of detention.[6].

When will it be obtainable?

The writ can be granted when a person has been detained unlawfully or illegally by private or public detention, such as the State’s arrest.

When is it not to be issued?

The writ cannot be issued in the case of an emergency. That was because citizens’ fundamental rights are suspended during specific periods, and no one can petition the court to issue this writ. As well a writ of habeas corpus cannot be issued in the case of legal detention.

Can the Court grant an ex-parte order of writ?

We should know that, Ordinarily, a petition for a writ of habeas corpus under Article 32 of the Constitution is made to the Court. However, the Court will not grant an ex parte writ of habeas corpus unless the case’s urgency requires it, or the filing of a notice motion will result in the defeat of justice.

When a petition for a writ of habeas corpus is filed, the Court usually orders that a notice be served on the respondents, allowing the respondents to produce evidence in response. Suppose the respondents appear to answer the notice by providing evidence that contradicts the facts described in the petition. In that case, the Court will analyze the actualities to decide if the petition for a writ of habeas corpus has merit.

Writ of Mandamus

Mandamus is ordered by a higher court to a lower court, tribunal, or government agency to undertake any activity within its jurisdiction. It is issued to ensure public duties and enforce private rights that the government has denied.

Article 32 of the Indian Constitution empowers the Supreme Court to issue prerogative writs, while Article 226 empowers the High Courts. Mandamus is Latin for “we command.” The writ of mandamus, when issued to a person or body, requires them to take action.

Writs of mandamus are used when it is clear that an entity is owed a specific right, but there are no legal remedies available to enforce that right.

In terms of the writ of mandamus, we can state that it is neither a writ of course nor a writ of right, but that it will be issued if the duty is public and it specifically affects an individual’s right, and no other adequate remedy.

Who is eligible to apply for the Writ of Mandamus?

A person who establishes his locus standi to enforce a public responsibility for his gain. This type of writ can grant when a public duty has affected the rights of an individual, and no other remedy will be available for him. Now let’s see when the court can issue such a type of writ.

When can the writ of Mandamus be issued?

A writ of Mandamus is a restraining order. The writ can only be issued once the applicant has demonstrated to the court that the writ will resolve either a practical or just question. Furthermore, the petitioner must have a legal right to the act they are petitioning, and the right must have been obstructed. Here below some criteria which need to be observed.

  • That right will be a legal right that will enable him to file a petition. 
  • The authority must have failed to perform his lawful duty, which is necessary as a part of duty.
  • When the authority does not fulfil its public duty by abuse of power or violence against the principle of natural justice, it acts to infringe fundamental rights.

When the writ of Mandamus will not be issued?

The writ of mandamus will not grant against the following issues;

  • This writ can not lies against the private, individual body.
  • It can not issue where the duty in question is not mandatory but discretionary.
  • It can not issue against the President or State Governors of India.
  • It can not issue against the chief justice who acts under his judicial capacity.
  • It can not issue to enforce of private contract.

Through this writ, the superior court can order a subordinate court or tribunal/quasi-judicial body/authority such as a tribunal to refrain from or stop doing something. If they fail to exercise their jurisdiction, it prevents the act or process in question from continuing.

In Guruvayur Devaswom Managing Committee vs. C. K. Rajan, (2003-7- SCC 546), the supreme court observed that the High Courts and the Supreme Court would not ordinarily issue a writ of mandamus directing the State to carry out its statutory functions in a particular manner.[7 ].

In Kanhaiya Lal Sethia vs. Union of India, (1997- 6- SCC 573), the supreme court held that no individual has the fundamental right to seek direction from the Union of India to sponsor a Private Member Bill in Parliament to include any new language.[8].

In the case of Aeltemesh Rein, Advocate, Supreme Court of India vs. Union of India, (AIR 1988 SC 1768), the supreme court held that It is not open to the Supreme Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute, the date on which it should be brought into force is left to the discretion of the Central Government.[9].

Writ of Prohibition 

A writ of prohibition is an order issued by a higher court to a lower court to inactivity in the jurisdiction. It applies not only when there is an excess of jurisdiction or when jurisdiction is absent but also when there is a violation of natural justice principles.

It only happens when the higher court determines that the case is outside of the lower court’s jurisdiction. Only judicial and quasi-judicial authority can be served with a Writ of Prohibition.

The purpose of this writ is to prohibit courts or inferior tribunals from exercising authority that they do not have or from exceeding their jurisdictional boundaries. It only happens when the higher court decides that the case is not within the lower court’s jurisdiction.

A writ of prohibition, sometimes known as a “stay order,” is a legal document that directs a subordinate court or entity to refrain from acting beyond its authority.

Who is eligible to apply?

A person whose fundamental right is being infringed by a court or quasi-judicial body’s ongoing process can seek a Writ of Prohibition.

On which grounds for the Writ of Prohibition can issue?

  • Absence or excess of jurisdiction: Where an absence of jurisdiction or total lack of jurisdiction.
  • Violation of natural justice: It is a violation of those principles when the principle of natural justice is not followed or followed incorrectly. For example, if the opposing party was not served with the notice and was not heard. After then, the prohibition writ might be issued.
  • Unconstitutionality of Statute: A writ of prohibition can be issued against any tribunal or court that acts in violation of the law or violates the constitution.
  • Infringement of Fundamental Right: A writ of prohibition might be issued when the disputed conduct infringes on the petitioner’s fundamental rights.

In the case of Thirumala Tirupati Devasthanams vs. Thallappaka Anantha Charyulu, (AIR 2003 SC 3290 ), the supreme court observed that A writ of prohibition is normally issued only when the inferior Court or Tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under the law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights.[10 ].

Writ of Certiorari 

In simple words, we can say that it is a higher court order to quash a decision made by a lower court or tribunal. The higher court has the power to overturn a judgment if it is found to be illegal and invalid. A writ of certiorari is given to reverse a decision made by a lower court, such prohibition is imposed before the proceedings are completed. 

The writ of certiorari’s purpose is not simply negative in the sense that it is intended to stop an action, but it also includes affirmative action. It is both preventative and curative.

Who can apply for the Writ of Certiorari?

A person whose fundamental right has been violated by a judicial or quasi-judicial body’s decision can be eligible to file a Writ of Certiorari to quash that judgment.

When will the Writ of Certiorari be issued?

It can be issued when the petitioner will prove some particular situation which is given below:

In the case of Hari Vishnu Kamath vs. Ahmad Ishaque, (1955 AIR 233), the Supreme Court observed the following criteria; 

  • To correct the jurisdictional errors, a writ of certiorari will issue.
  • Certiorari will be issued if the Court or Tribunal abuses its undoubted authority, such as when it renders a judgment without enabling the parties to be heard or when it violates natural justice principles.
  • The Court is exercising supervisory rather than appellate jurisdiction when it grants a writ of certiorari. As a result, even if the lower Court’s or Tribunal’s conclusions of fact are wrong, the Court will not reconsider them.
  • A writ of certiorari may be granted if the error in the decision or determination is a manifest error visible on the face of the proceedings. Such as when it is based on evident ignorance or violation of the law. In other words, certiorari may correct a patent error, not merely a wrong decision.[11].

In the case of Sadhu Singh vs. Delhi Administration, (AIR 1966 SC 91), the supreme court observed that A writ of certiorari lies wherever a body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to judicially act in excess of their legal authority.[12].

In the case of  Syed Yakoob vs. K. S. Radhakrishnan, (AIR 1964 SC 477), the supreme court held that A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction or are in excess of it, or as a result of failure to exercise jurisdiction. The court or quasi-judicial authority had the legal authority to determine questions affecting the applicant’s rights.[13 ]. 

When will the Writ of Certiorari not be issued?

  • Any decision that does not fall into this category will not be granted, the writ of certiorari is confined to judicial and quasi-judicial judgments.
  • Certiorari cannot be issued against a court that is equal to or higher than it; it can not be used against a higher court or a court with similar jurisdiction.

Writ of Quo Warranto

A writ of Quo Warranto is a writ issued by a higher court to determine who has the power to exercise a specific right or hold a particular office. The court uses this writ to ask the person “with what authority” to support their claim.

The writ of Quo Warranto is a form of judicial control because the procedures review the acts of the administrative authority that appointed the person. During this procedure, the usurper of public office may be removed, and the rightful occupier may be allowed to take their place.

Even if he is not an aggrieved party, any person can file a petition for a writ of Quo Warranto. The writ is issued to the individual removed from a public position to which he is not entitled.

One thing to keep in mind is that an applicant cannot apply for this remedy as a right. Furthermore, it is a discretionary remedy, which means the court has the power to refuse it after considering the facts and circumstances of each case.

Who is eligible to apply for the Writ of Quo Warranto?

  • Any other person can seek the issuance of this writ, even if his fundamental right has not been violated.
  • An application can be submitted by anyone who is legally able to compete for a public office.

On which grounds the court issue the writ of warranto?

The State of the Constitution establishes the office, which is in question and a severe issue involving a public office. On that ground, such writ can be filed. On the other hand, a petition against a private corporation is prohibited from filing.

In the case of  Mir Ghulam Hussan vs. Union of India, (AIR 1973 SC 1138), the supreme court observed that when an appointment or promotion of an officer is challenged on the ground that he is not eligible under the service rules, the proper remedy is only to apply for a writ of quo warranto.[14].

In the case of University of Mysore vs. C. D. Govinda Rao, (AIR 1965 SC 491), the supreme court Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him front that office.[15].

When will the Writ of Warranto not be issued?

The following criteria can not be covered in the writ of warranto.

  • It cannot be used in a private office.
  • If the court concludes that the applicant is entitled to an alternative remedy, it will not be issued.
  • It cannot be used against a public office not established by statute or the Constitution.

Conclusion 

The importance of fundamental rights in the lives of all citizens cannot be overstated. These rights can safeguard us in times of uncertainty and adversity and help us grow as people, which is why all rights are human needs.

The Writ Jurisdictions established by the Constitution, on the other hand, have privilege constraints and are discretionary, but their breaking points are unbounded. Articles 32 and 226 of the Constitution are significant provisions because they provide citizens with a mechanism for enforcing their fundamental rights and seeking the proper right to constitutional remedies.  

Fundamental rights guaranteed by the Indian Constitution are essential for a democratic society to function. In the State of Emergency, the President has the authority to suspend Supreme Court enforcement actions under Article 359 of the Constitution.

Reference 

(1) Ramesh Thappar v. State of Madras, AIR 1950 SC 124

(2) Article 143, of the Constitution of India; In the matter of” (AIR 1965 SC 745)

(3) Article 32, The Constitution Of India.

(4) M.C. Mehta v. Union of India  ( AIR 1987 SC 1086)

(5) Dhananjay Sharma v. State of Haryana, (AIR 1995 SC 1795)

(6) Devi Choraria v. Union of India (AIR 1980 SC 1983)

(7) Guruvayur Devaswom Managing Committee v. C. K. Rajan, (2003-7- SCC 546)

(8) Kanhaiya Lal Sethia v. Union of India, (1997- 6- SCC 573)

(9) Aeltemesh Rein, Advocate, Supreme Court of India vs. Union of India, (AIR 1988 SC 1768)

(10) Thirumala Tirupati Devasthanams vs. Thallappaka Anantha Charyulu. (AIR 2003 SC 3290 )

(11) Hari Vishnu Kamath vs. Ahmad Ishaque, (1955 AIR 233)

(12) Sadhu Singh vs. Delhi Administration, (AIR 1966 SC 91)

(13) Syed Yakoob vs. K. S. Radhakrishnan, (AIR 1964 SC 477)

(14) Mir Ghulam Hussan vs. Union of India, (AIR 1973 SC 1138)

(15)  University of Mysore vs. C. D. Govinda Rao, (AIR 1965 SC 491)

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