Maansarovar Law Centre CLASS NOTES

RIGHT TO CONSTITUTIONAL REMEDIES

[ARTICLES 32-35]
ARTICLE 32 – It declares that right to move the Supreme Court for enforcement of
fundamental rights in itself is a fundamental right.

ARTICLE 32

This Article shows that Supreme Court is It is said to be the very heart of the
the guardian and protector of rights of Constitution and the very soul of it -
citizens. B.R. Ambedkar

WRITS
TYPES PICKED FROM ISSUED BY

There are 5 types of writs. The concept has been 1. Supreme Court
a) Habeas corpus picked from UK (Article 32)
b) Mandamus 2. High Court
c) Prohibition (Article 226)
d) Certiorari 3. Any other court
e) Quo warranto also if empowered
by the Parliament

WRIT JURISDICTION

WRIT JURISDICTION OF WRIT JURISDICTION OF HIGH

SUPREME COURT COURT
[ARTICLE 32] [ARTICLE 226]

1. The Supreme Court can issue a writ to 1. The High Court can issue writs only
any person or anybody within the within its own territorial jurisdiction
territory of India and not beyond.

2. The Supreme Court can issue writs
only for enforcement of fundamental
rights. Under Article 139, the Parliament
can empower the Supreme Court to issue
writs for any other purpose also.
3. The right to move the Supreme Court
for enforcement of fundamental rights in
itself is a fundamental right.
2. The High Court can issue writs not
only enforcement of fundamental rights
but also other legal rights.
3. The right to move the High Court for
enforcement of fundamental rights is not
a fundamental right rather only a
constitutional right.

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TYPES OF WRITS

I. HABEAS CORPUS
1. MEANING – ‘You may have the body’

2. EFFECT
a) It directs the person who has illegally detained the other to bring that person
before the court.
b) He now has to explain the reasons for detention.
c) The court will now examine the grounds of detention. If found to be
unreasonable, the court will order the release of the person detained.

SOME QUESTIONS RELATED TO HABEAS CORPUS

1. Which writ is called the ‘bulwark of personal liberty’?

2. Which writ is most commonly issued against the police officers?
3. Which writ can be issued against private persons also?
4. Which is the only writ upon which the principle of res judicata does not apply?

II. MANDAMUS

MEANING TO WHOM FOR WHAT WHY

It means a It is issued to a To perform the Because the said

mandate/order public officer public duty officer has
belonging to his failed/refused to
office perform his duty

III & IV – PROHIBITION & CERTIORARI

PROHIBITION CERTIORARI

1. This writ is issued to a superior court
to prevent an inferior court from
exceeding its jurisdiction or from
exercising jurisdiction not vested in it by
law.
2. This writ applies pre-decision
3. This is a preventive writ.
1. In this case, the inferior court has
already exceeded its jurisdiction and now
the superior court issues the writ of
certiorari to certify that since the decision
is in excess of jurisdiction, hence, it is
bad in law and the superior court quashes
such decision.
2. This writ applies post-decision
3. This writ works as a cure

Ques. The writ of prohibition and certiorari can be issued against

(a) Judicial or quasi-judicial bodies.
(b) Administrative bodies
(c) Any public authority
(d) All of the above

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V. QUO WARRANTO
1. MEANING - Quo warranto literally means – ‘With what authority’
2. TO WHOM - This writ is issued to a public officer asking him to explain with what
authority he is holding that public office.
3. PURPOSE – The purpose of this writ is prevention of usurpation of public offices
and to ensure that there are no defects in appointment to public offices.

EXPANDING HORIZONS OF ARTICLE 32

LOCUS STANDI, JUDICIAL ACTIVISM, PIL & EPISTOLERY
JURISDICTION

The concept of ‘judicial activism’ connotes the assertive role played by the judiciary to
force the other organs of the government to discharge their assigned constitutional function
towards the people. It has helped in reinforcing the strength of democracy and reaffirm the
faith of public in the rule of law.
This concept of judicial activism gained popularity in 1990s and has greatly contributed to
the enhancement of powers and prestige of the SC. As the executive and the legislative wings
of the government were not discharging their constitutional duties, the judiciary assumed a
more active role. It issued directives to various authorities, governmental and civic, to
discharge their assigned duties.
Judicial activism is nothing but the judiciary’s insistence that the rule of law shall guide the
executive and legislature in enacting and enforcing the laws of the land.
Judicial activism emanates from the power of judicial review and is enjoyed by the SC and
the HC. PIL is a major facilitator of judicial activism, and judicial activism owes its
present popularity to PIL.
According to the traditional rule of locus standi (i.e. who can apply), the right to move the
court for judicial redress, is available only to those, whose legal right or legally protected
interest, has been infringed. This rule results in the denial of equal access of justice to those
who, because of their property or socially or economically disadvantageous position, are
unable to approach the court for relief. The SC has taken a dynamic approach and pioneered
the concept of PIL/class action/representative proceedings, permitting litigation at the
instance of “public spirited persons” for the enforcement of right of any person.
The concept of PIL rests on the principle that any member of public can initiate legal
proceedings on behalf of an aggrieved person, especially a poor person who is unable to
move the court on his/her own. PIL seeks to protect and promote the interest of the public at
large.
The concept of PIL originated in the USA where it is called Social Action Litigation. The
key role in enunciating the principle of PIL was played by Justice J. Bhagwati. He did not
insist on the observance of procedural technicalities and even treated ordinary letters from
public minded individuals as writ petitions. To ensure that PIL is not misused, Justice
Bhagwati cautioned the courts to satisfy itself that the person bringing the case to the court
was not doing so for personal gains or private profit or political motivation or other oblique
considerations.
In terms of principle of PIL, under Article 32, the SC can interfere whenever and wherever
any injustice is caused or is being caused, by state action, to the poor and helpless persons
who cannot approach the court.

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The landmark innovation of PIL is the most important contribution of judicial activism of the
late 1980s and the early 1990s. This period saw a spate of myriad PIL litigation with regard
to
• The prisoner’s rights and prison administration
• The protection of bonded, contract and child labour
• The protection of environment
• The widening of scope of right to life and personal liberty
• The corporation and crime involving including holders of high political offices
• For activating the investigation process

PIL is nowhere provided in the Constitution. It is generally used to protect the group interest
but not individual interest for which the fundamental rights have been provided.
The PIL has served four important purposes –
• It can increase the level of awareness among the public about their own rights.
• It is through PILs that the scope of fundamental rights has been enormously expanded
by the judiciary by interpreting it liberally.
• It has forced the executive and the legislature to discharge the constitutional
obligation towards the people and in maintaining the rule of law.
• It has made an attempt to provide a corruption free environment and a livable
environment to public.

The emergence of PIL led to other landmark innovations. The court started denouncing the
adversarial procedure with a view to making themselves more accessible to disadvantaged
sections of the society. Mere letters addressed to the court have been treated as writ petitions
in cases of gross violation of fundamental rights and thus, led to the evolution of epistolary
jurisdiction. Epistolary jurisdiction refers to the letter jurisdiction wherein the Supreme Court
has accepted simple letters, postcards etc. narrating tales of transgression of fundamental
rights as writ petitions. This concept totally justifies the role of Supreme Court as the
guardian of the fundamental rights of people. The top court has never insisted upon
technicalities rather it has always supported the cause of justice.

ARTICLE 33 – The Parliament has the power to modify, restrict, abrogate the application
of the fundamental rights to the members of armed forces and police forces.

ARTICLE 34 – In cases of martial law, the parliament may by law indemnify the persons
of these forces for their acts in connection with the maintenance or restoration of order in any
area.

ARTICLE 35 – The Parliament shall alone have the power to make laws for matters under
Part III of the Constitution

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