Monday, October 24, 2016

Right to Constitutional Remedies Under Article 32 of Indian Constitution

Excerpt from the constitution:

Article 32 of Indian Constitution -  Remedies for enforcement of rights conferred by this Part 3 of Indian Constitution

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(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.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 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 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

This is the most important article of our constitution as far as fundamental rights are concerned. The fundamental rights are mentioned and described from Article 12 to 35 of Indian Constitution.
But the members of the constituent assembly knew that merely declaring these rights in the constitution does not guarantee that these will be adhered to.

They knew that a proper method to ensure the citizens of these rights was required which was legally binding.

This is why they incorporated Article 32 in the Constitution of India.

It is also known as the Right to Constitutional Remedy.

The founding fathers provided a judiciary method to guarantee the fundamental rights.

These rights are very detailed and meticulous, but a mere mention in the constitution without any legal bond was not going to guarantee the citizens that they will be honored and adhered to.
Right to Constitutional Remedies Under Article 32 of Indian Constitution
Constitutional Remedies Under Supreme Court

That is why, the superior courts, particularly the Supreme Court was given the duty to ensure that every citizen, who thinks that his fundamental rights are being violated, can ask the Supreme Court for justice. This feature is unique. No other constitution in the entire world has included the right to constitutional remedy as a fundamental right.

Article 32 of Indian Constitution has four clauses. They are explained as follows:


(1)    Any person can move the supreme court for a ‘legal remedy’ if he feels that any of his fundamental rights are being infringed upon.

In that case, it is the duty of the Supreme Court to look into case and ensure that his rights are upheld and honored.

It has the power to take the necessary steps to guarantee those rights.

We will talk about the specific powers mentioned in this article at the end.

(2)    The Supreme Court’s power by which it ensures the following of the fundamental rights of person are called ‘writs’.

In simple words, writs are some orders issued by the Supreme Court to any person or body that has been accused of infringing the fundamental rights.

So, when a person moves the Supreme Court for any kind of violation of his fundamental rights, then the apex court can use an appropriate writ or order to protect the said rights

(3)    The Article 32 of Indian Constitution also states that the parliament, by law, can appoint any higher or superior court which has suitable power as a protector of such rights.

(4)    There is however an exception to Article 32 of Indian Constitution.

In case the president declares an emergency, under Article 352 of Indian Constitution, the provision for the guarantee of the fundamental rights of a person is suspended.

A person, in times of emergencies, cannot move the Supreme Court for legal remedies if he feels his fundamental rights are being violated.

It is a black spot on our constitution.

But BR Ambedkar, the chief architect of the constitution felt that if the mere life of a state or country is in jeopardy, than the rights of the individual hold lesser weight than the survival of the state.

The personal liberty of the individual cannot be allowed to destroy the fabric of the national security.

We all know that the constitution was drafted in very difficult times. The nation was suffering from war, infiltration, partition, riots and other such activities.

So the founding fathers felt the necessity to add this exception.

Writs Mentioned in Article 32 of Indian Constitution - 

These are the constitutional weapons mentioned in Article 32 of Indian Constitution, that our apex court is armed with to protect the fundamental rights of the citizens.

Habeas Corpus: the literal meaning is “you may have the body”. Under this power, the Supreme Court can order an authority to free a person from custody if it feels that he has been wrongfully or arbitrarily arrested or detained.

Mandamus:  the literal meaning is “we order”. Whenever a public employee or government body has done an act that violates or infringes the fundamental rights of a person, the supreme court can order that employee or body, by the use of this writ, to restrain their act. It can also issue this writ to an inferior court or the concerned department to do whatever necessary to protect the fundamental rights of a person.

Prohibition: by the use of this writ, the Supreme Court can stop an inferior court from doing an act which is not in that court’s power. In other words, it can prevent an inferior court from doing something that it’s not competent to do.

Certiorari: this writ is used when the Supreme Court moves a case in an inferior court to itself to prevent the violation of the fundamental rights.

Quo Warranto: by the use of this writ, the Supreme Court can prevent the violation of the fundamental rights by a government body on the basis of favoritism. For example, if a person is being promoted as a result of favoritism over someone who truly deserved it, it can cancel that promotion to protect the right to equality as is guaranteed by the Article 14 and 16 of Indian Constitution.

To conclude, I would like to quote the words of Dr. B.R. Ambedkar,” hereafter, it would not be possible for any legislature to take away the writs which are mentioned in this article.” Article 32 of Indian Constitution made the Supreme Court the protector of the fundamental rights, unless, the Article 32 is deleted by an amendment which seems to be an impossibility now.

No comments:

Post a Comment

Add a Comment or Query