26-10-2023

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RIGHT TO CONSTITUTIONAL REMEDIES

(ARTICLE 32)

ATUL KUMAR TIWARI’S CLASS

ARTICLE 32:
REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY THIS PART
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

32. Remedies for enforcement of rights conferred by this Part.—

(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 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).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

ATUL KUMAR TIWARI’S CLASS

1
 26-10-2023

RIGHT TO MOVE TO THE SUPREME COURT

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• The apex court is given the authority to issue directions or

orders
• the parliament can also entrust any other court to exercise the
power of the Supreme Court
• the rights guaranteed by this Article cannot be suspended
• the right to directly approach the Supreme Court without
following a lengthier process of moving to the lower courts first
• the main purpose of Writ Jurisdiction under Article 32 is the
enforcement of Fundamental Rights.

ATUL KUMAR TIWARI’S CLASS

Dr. AMBEDKAR
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• “If I was asked to name any particular article in this

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 and I am glad that the House has realized
its importance.”

ATUL KUMAR TIWARI’S CLASS

2
 26-10-2023

TYPES OF WRITS
UNDER ARTICLE 32 OF THE CONSTITUTION
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

1. HABEAS CORPUS

• It is one of the important writs for personal liberty which says “You have the
Body”.
• The main purpose of this writ is to seek relief from the unlawful detention of
an individual.
• This writ provides immediate relief in case of unlawful detention
• A person has the right to seek the assistance of the court by filing an
application for “writ of Habeas Corpus”
• if he believes that he has been wrongfully imprisoned and
• the conditions in which he has been held falls below minimum legal
standards for human treatment

ATUL KUMAR TIWARI’S CLASS

10

2. QUO WARRANTO
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Writ of Quo Warranto implies thereby “By what means”.

• This writ is invoked in cases of public offices and it is issued to restrain
persons from acting in public office to which he is not entitled to.
• Appointment to public office can be challenged by any person irrespective of
the fact whether his fundamental or any legal right has been infringed or not
• The court issues the Writ of Quo Warranto in the following cases:
1.When the public office is in question and it is of a substantive nature.
2.The office is created by the State or the Constitution
3.The claim should be asserted on the office by the public servant

ATUL KUMAR TIWARI’S CLASS

11

3
 26-10-2023

3. MANDAMUS
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Writ of Mandamus means “We Command” in Latin.

• This writ is issued for the correct performance of mandatory and
purely ministerial duties and is issued by a superior court to a
government officer
• Its main purpose is to ensure that the powers or duties are not
misused by the administration or the executive and are fulfilled duly.
• it safeguards the public from the misuse of authority by administrative
bodies.
• The person applying for mandamus must be sure that he has the legal
right to compel the opponent to do or refrain from doing something.

ATUL KUMAR TIWARI’S CLASS

12

CONDITIONS FOR ISSUE OF MANDAMUS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

1.There must rest a legal right of the applicant for the

performance of the legal duty.
2.The nature of the duty must be public.
3.On the date of the petition, the right which is sought to be
enforced must be subsisting.
4.The writ of Mandamus is not issued for anticipatory injury.

ATUL KUMAR TIWARI’S CLASS

13

4
 26-10-2023

4. CERTIORARI
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Writ of Certiorari means to be certified.

• It is issued when there is a wrongful exercise of the jurisdiction and the decision
of the case is based on it.
• Certiorari is not issued against purely administrative or ministerial orders, and it
can only be issued against judicial or quasi-judicial orders.
• When is a writ of Certiorari issued?
It is issued to quasi-judicial or subordinate courts if they act in the following ways:
1.Either without any jurisdiction or in excess.
2.In violation of the principles of Natural Justice.
3.In opposition to the procedure established by law.
4.If there is an error in judgement on the face of it.
• Writ of certiorari is issued after the passing of the order.

ATUL KUMAR TIWARI’S CLASS

14

5. PROHIBITION
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• It is a writ directing a lower court or Tribunal to stop doing something which

the law prohibits it from doing.
• Its main purpose is to prevent an inferior court from exceeding its jurisdiction
or from acting contrary to the rules of Natural Justice.
• When is the writ of Prohibition issued?
• It is usually issued when the lower courts act in excess of their jurisdiction.
• It can be issued if the court acts outside its jurisdiction.
After the writ is issued, the lower court is bound to stop its proceedings
Prohibition is a writ of preventive nature

ATUL KUMAR TIWARI’S CLASS

15

5
 26-10-2023

DIFFERENCES BETWEEN ARTICLE 32 AND ARTICLE 226

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Article 32 Article 226

1. Article 226 has discretionary powers to High

1. Article 32 is a fundamental right in itself Court within judicial principles to consider any
petition.

2. Under Article 226, writ petitions can be issued to

2. Under Article 32, writ petitions are issued to enforce
enforce fundamental rights or for any other
fundamental rights.
purpose.
3. During the time of emergency, Article 32 is 3. During the time of emergency, Article 226 cannot
suspended. be suspended.

4. Orders passed under Article 32 will supplant orders 4. The orders passed under Article 226 cannot
passed under Article 226. supplant orders under Article 32.

5. Article 32 has territorial jurisdiction over the entire

5. Article 226 has limited territorial jurisdiction.
country of India.

ATUL KUMAR TIWARI’S CLASS

16

THE SUPREME COURT AND HIGH COURTS HAVE CONCURRENT POWERS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Article 226 confers concurrent jurisdiction on the High Courts with somewhat wider power.
• Notwithstanding anything in Article 32, every High Court shall have powers to issue orders or writs,
including writs for the enforcement of any of the rights conferred by Part III and for any other purpose
• In the case of Romesh Thapar v. State of Madras, (1950) SCR 594, an objection was raised against the
petitioner for approaching the Supreme Court directly without approaching the High Court under
Article 226
• The Supreme Court dismissed the objection and held that under Article 32, the court was constituted
as “the protector and guarantor of the fundamental rights, and it cannot consistently, with the
responsibility so laid upon it, refuse to entertain application seeking protection against infringement of
such rights”
• However, if someone has chosen to approach the High Court under Article 226, and in case he loses the
case there, he can approach the Supreme Court only by way of an appeal and cannot invoke its
jurisdiction under Article 32.

ATUL KUMAR TIWARI’S CLASS

17

6
 26-10-2023

ARTICLE 32 RIGHT IS ITSELF A FUNDAMENTAL RIGHT

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

•Article 32 makes the right to access the court itself a guaranteed fundamental right
•The Supreme Court has been moving pragmatically with a view to strike a balance between the
fundamentalness of the right under Article 32(1) and the demands of practical necessities of the
judicial system
•In Prem Chand Garg v. Excise Commissioner, U.P (1963)1 SCR 885
Q. The rights of the people to access these courts cannot be curtailed by any law.
- a Constitution bench, by a majority of 4:1, held that a rule made by the Supreme Court itself
under article 145 was in no better position
- Rule 12 of order XXXV of the Supreme Court rules empowered the court to ask for the deposit of
a sum as security for being paid to the opposite party if the person approaching the court lost the
case. (Was applicable to cases of fundamental rights also)
- the rule was held to be bad because it barred the petitioner at the threshold from prosecuting
his claim

ATUL KUMAR TIWARI’S CLASS

18

PRELIMINARY OBJECTIONS
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Writs being extraordinary remedies, they are supposed to be

resorted to only in extraordinary situations and are supposed to be
unsuitable to resolve certain problems
• Four major objections:
1. Availability of alternative remedy
2. The case involves the determination of the disputed question of fact
3. Rest judicata
4. Undue delay or latches in approaching the Court

ATUL KUMAR TIWARI’S CLASS

19

7
 26-10-2023

ALTERNATIVE REMEDY
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Romesh Thapar case

• the Supreme Court refused to force an aggrieved right holder to choose one forum rather
than the other for the vindication of his right

• The constitution gives him an unfettered choice in the matter

• The court cannot ask a litigant to avail of a remedy available at the administrative or lower
court level

ATUL KUMAR TIWARI’S CLASS

20

DISPUTED QUESTION OF FACT

• An objection that case involves the determination of disputed questions of fact is a little problematic,
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

and the judicial response is a little unpredictable, and whether the court will heed to the objection may
depend on the specific facts and circumstances of a case.
• In K K Kochuni v. State of Madras, AIR 1959 SC 725 (5 judge bench)
• Chief Justice Das, said that in view of the fact that Article 32 right was a fundamental right, the court
could not shirk its responsibility. If necessary, a commission could be issued to take the evidence, or the
court could itself take the evidence.
• He said that such occasions would be rare, but such rare cases should not, in our opinion, be regarded as
cogent reasons for refusing to entertain the petition under Article 32 on the ground that it involves
questions of fact
However, in some subsequent cases –
• Major Sodhi v. Union of India, AIR 1991 SC 1617 and Daljit Singh v. Union of India, AIR 1997 SC 1367
- The court has refused to inquire into the alleged facts. The first case was decided by a two judge bench
and the other by three judge bench. There has not been expressed any considered opinion contrary to
that of Kochuni in any of the above cases
- In suitable and hard cases like Kochuni, the court can still enter into an examination and determination of
disputed facts

ATUL KUMAR TIWARI’S CLASS

21

8
 26-10-2023

REST JUDICATA
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Daryao v. State of Uttar Pradesh, (1962) 1 SCR 574

• Constitution bench - rule of res judicata can bar the right of a petitioner to enforce his
fundamental right by bringing a petition before the Supreme Court under Article 32
- If one had moved the High Court under Article 226 and had lost the case on merit, he
could not move the Supreme Court under Article 32 for agitating the same issue
against the same party.
- The only way in which he could approach the Supreme Court was by way of appeal,
and if the appeal had become time-barred, he had no remedy.
• Court restricted the application of the rule only to such cases as were disposed of on
merits and it would not apply to cases where the petition has been dismissed in limine
without speaking order
• Habeas corpus petitions have been exempted from the operation of the rule

ATUL KUMAR TIWARI’S CLASS

22

LATCHES
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Tilak Chand Motichand v. H B Munshi, (1969) 2 SCR 824

• A Constitution bench, by a majority of 3:2 decided to refuse the relief on the ground of latches
• 4 judges - agreed on the basic principle that latches can be a ground to refuse the relief for
determining the fatal period of delay.
• They all agreed only on this that the Limitation Act, as such, does not control the constitutional
proceedings
• Chief Justice Hidayatullah - there is no lower or upper limit, and every case must depend on its
own facts and circumstances, which have to be taken into account by the court to exercise its
discretion
• It appears that it is the viewpoint of Chief Justice Hidayatullah that is being followed presently

ATUL KUMAR TIWARI’S CLASS

23