The declaration of fundamental rights is useless unless there is a well-functioning mechanism to enforce the same. Therefore, the Constitution makers have incorporated the right to constitutional remedies as a fundamental right along with the other fundamental rights under Part III of the Constitution.
The right to constitutional remedies allows citizens to move to the Supreme Court or the High Court for the restoration of any fundamental right that has been violated.
This law note tells you more about the right to constitutional remedies as per the Constitution of India.
Article 32 – Remedies for Enforcement of Rights Conferred by This Part
It is to be noted that the traditional rule is that the right to approach the Supreme Court is only available when the fundamental rights are violated. However, this has now been relatively relaxed in a recent ruling of the Supreme Court.
In Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented vs Union of India and Ors (1980), the Supreme Court held that people with sufficient interest can file public interest litigation (PIL) and can approach the Supreme Court for enforcing constitutional and legal rights as well.
An application can be directly made to the Supreme Court under Article 32 of the Constitution. But, when any earlier petition is pending in the High Court, filing another petition in the Supreme Court under Article 32 on the same facts for the same relief is deemed to be an abuse of process of the court.
Further, clause (2) of Article 32 empowers the Supreme Court to issue appropriate orders, directions, or writs to enforce fundamental rights. Besides the five writs mentioned under this clause (i.e. habeas corpus, mandamus, quo-warranto, certiorari and prohibition), the Supreme Court has the power to issue other orders or directions as well.
What Are Writs?
Writs are borrowed from English law and are also known as prerogative writs. Writs are formal written orders issued by the court for the enforcement of fundamental rights. And these are considered as a last resort in cases of judicial proceedings.
For More, We Have a Dedicated Post: 5 Types of Writs Under the Constitution of India – Article 32 and 226
Types of Writs
As mentioned under Article 32(2), there are five types of writs:
1. Habeas corpus: This means to produce before the body. This writ is used to protect a citizen’s fundamental right to liberty from unlawful detention. The writ of habeas corpus is issued as an order calling upon the person who detained another person to be examined for the legality of the detention or to know by what authority he has made the detention.
2. Mandamus: It means we command or the order. It is issued by the superior court to oblige a public authority to carry out legal obligations that it has failed or denied to carry out. It can be issued against any public body, corporation, an inferior court, a tribunal or the government. However, it cannot be issued against a private individual or body, the President or Governors of States or any working Chief Justices.
3. Quo warranto: It means what is your authority. This writ is issued as an order to call upon the holder of a public office to confirm the court by what authority he holds the office.
4. Certiorari: This writ is issued by the superior court to an inferior court or body exercising judicial or quasi-judicial functions to remove the suit. The court may transfer the case to itself or suppress the passed order. Writ of certiorari is issued when the inferior court or tribunal has passed a decree which is beyond its jurisdiction, committed any error of law or violated the procedure.
5. Prohibition: This writ is issued to direct or order the inferior court to be or work within its jurisdiction or restrict them from functioning opposite to the rules of natural justice.
Furthermore, clause (4) provides that the right under Article 32 to move the Supreme Court cannot be suspended except if it is mentioned in the Indian Constitution. This right can be suspended only at the time of emergency as per Article 359 of the Constitution.
Restrictions on Fundamental Rights
Indian Constitution provides for several fundamental rights. These rights are available to citizens of India. And some of them are available to non-citizens as well.
However, these fundamental rights also have some restrictions to it. The fundamental rights can not be made enforceable by moving to the High Court or Supreme Court under the following conditions:
Article 33: Restrictions on Fundamental Rights of Armed Forces
Article 33 is an exception to the fundamental rights. It empowers the parliament to modify, limit, or abrogate (repeal, revoke) the fundamental rights in application to the:
- members of the armed forces
- the members of the forces charged with the maintenance of public order
- persons employed in any bureau or other organisation created by the State for intelligence or counterintelligence
- persons employed in, or in association with, the telecommunication systems set up for any force, bureau or organisation referred to in above-mentioned points.
This restriction is put forward so that they perform their duties properly and maintain discipline amongst them.
Article 34: Restrictions on Fundamental Rights While Martial Law Is in Force in Any Area
Article 34 of the Indian Constitution states that regardless of the provisions mentioned in Part III of the Indian Constitution, the parliament has the power to indemnify any person in the Union’s or a State’s service, or any other person, for any act performed by them in association with the maintenance or restoration of order in any area within the territory of India where martial law was in effect.
And, therefore an act of indemnity by parliament cannot be challenged on the ground that it infringes fundamental rights.