Right to Constitutional

remedies
Art 32
 Introduction

• A right without a remedy does not have much substance. The

Fundamental Rights guaranteed by the Constitution would have been
worth nothing had the Constitution not provided an effective
mechanism for their enforcement
• According to Art. 13, Fundamental Rights are enforceable and any law
inconsistent with a Fundamental Right is void.
• Art. 13 is the key provision as it makes Fundamental Rights justiciable.
Art. 13 confers a power and imposes a duty and an obligation on the
courts to declare a law void if it is inconsistent with a Fundamental
Right. This is a power of great consequence for the courts. The
Supreme Court has figuratively characterised this role of the judiciary
as that of a “sentinel on the qui vive”
• Art 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.
• Remedial right
• Called as the heart and soul of the Constitution – Dr B R Ambedkar – Fundamental
rights (FR) would be useless if no remedy for violation provided.
• Provides remedy for the violation of any of the Fundamental rights mentioned in Part
III
• Art 32 is itself a fundamental right – thus, the remedy for a violation of a FR is itself a
right – can approach the SC directly for a FR violation
• Similar remedy in Art 226 with High Court
• Can be suspended in a National emergency -32 (4)
• Considered to be a part of Basic structure of the Constitution (L Chandra Kumar v
UOI, 1997) – thus, cannot be amended / removed so as to violate basic structure.
• Art 32(1) – how can the SC be approached in case there is a violation ?
• “approporiate proceedings” – wide term; leaves scope for newer ways to access the court –
mostly commonly understood to be through writ petitions for one of the writs mentioned in
32(2)
• Traditional rule of locus standi to approach the court – one who is aggrieved must approach
• Bandhua Mukti Morcha case – a letter written to the CJI highlighting the plight of labour in
the Faridabad quarries was converted to a petition – SC said – “No limitation on kind of
proceeding – except that it should be appropriate” – called as epistolary jurisdiction where
letters can be converted to peititons. Another example – Sunil Batra case.
• Public interest litigation also acceptable way now to approach the court for violation of a
FR as long as the petition is filed by
• a public spirited citizen/ organisation
• For redressal of a right which is violated
• No personal/private interest involved.
• Advent of PIL and epistolary jurisdiction examples of liberalisation of locus standi
• 32(2) – nature of remedies available in case of violation of FR
• Can issue directions or orders or writs, whichever approporiate
• Wider terms – can be subjected to creative interpretation –
• Most common remedies – writs – prerogative writs that used to be issued by King’s
bench under English law. Writs may be one of the following –
1. Habeas Corpus
• Order calling upon the person who has detained another to produce the person before
the court – to fin out the ground on which he was detained and order release if ground
not justified
• Object of the writ is to set the detained person free and not to essentially punish the
detaining authority
2. Mandamus
• Order of the court against a public authority to perform a public duty imposed on it by Consti/statute
• Conditions to use mandamus –
• Legal right of the petitioner
• Legal duty of the authority – must be imposed by statute, Consti or by some rule of common law –
contractual liability not included
• Must be a public duty
• Mostly used when administrative discretion is not used or abused
• Must be preceded by demand and refusal to perform the duty
3. Prohibition
• Preventive writ – commonly known as ‘stay order’
• Against lower courts, tribunals, authorities exercising quasi judicial powers when jurisdiction is
exceeded
• Thus, essentially a proceeding between 2 courts – during pendency of proceedings
4. Certiorari –
• similar to prohibition except the stage of proceeding at which writ is passed
• Means to certify – where the higher court wishes to look int the record of the lower court to check/
certify whether the lower court has exceeded jurisdiction or there is an error apparent on the face of the
5.Quo warranto –
• Writ issued against an illegal occupant of a public office
• Conditions – must be a public office, must be statutory / constitutional in nature,
holder must be in actual occupation of the office.
• Can be applied by anyone – not necessarily an aggrieved person – as it deals with a
public office – it is in public interest that a public office is not usurped by someone not
eligible to occupy it.

• Writ petitions filed for violation of a FR may ask for one of the abovementioned
writs/orders as remedies to be issued by the SC.
• Other remedies also possible – since the SC can issue “directions or orders or writs” –
examples –
• Order to pay compensation – Rudul Shah v State of Bihar
• Order to pay minimum wages – Chandrabhavan lodging
• Guidelines against sexual harassment – Vishakha v tate of Rajasthan
PUBLIC INTERST LITIGATION
• The Supreme Court has entertained a number of petitions under Art. 32 complaining of infraction of
Fundamental Rights of individuals, or of weak or oppressed groups who are unable themselves to take
the initiative to vindicate their own rights.
• The Supreme Court has ruled that to exercise its jurisdiction under Art.32, it is not necessary that the
affected person should personally approach the Court. The Court can itself take cognizance of the
matter and proceed suo motu or on a petition of any public spirited individual or body
• The most significant point to note in regard to Public Interest Litigation is that it discards the
traditional concept of locus standi which means that only the person whose legal rights are being
violated can approach the Court for redress. Bhagwati, J., has stated on this point: "A new dimension
has been given to the doctrine of locus standi which has revolutionised the whole concept of access to
justice
• The Supreme Court has taken the view that, having regard to the peculiar socio-economic
conditions prevailing in the country where there is considerable poverty, illiteracy and ignorance
obstructing and impeding accessibility to the judicial process, it would result in closing the doors
of justice to the poor and deprived sections of the community if the traditional rule of
standing....that only a person wronged can sue for judicial redress were to be blindly adhered to
and followed and it is therefore necessary to evolve a new strategy by relaxing this traditional rule
of standing in order that justice may become easily available to the lowly and the lost
(
https://highcourtofuttarakhand.gov.in/files/Public_Interest_Litigation_
Rules,_2010.pdf
)
• PIL means “..petition filed under Article 226 of the Constitution of
India by a “Public Spirited Person”, for espousing a cause in public
interest.” as defined under the PIL rules of the HC of Uttarakhand.
• The rules also define a public spirited person and the possibility of a
PIL through a letter.
• Also called as social action litigation for the societal issues that PIL
has addressed over the years – as a remedy for weaker sections.
• However, increasing cases of misuse of concept of PIL for filing frivolous matters –
• State of Uttarakhand v Balwant Singh Chaufal (2010)
• Respondent filed a PIL in Uttarakhand HC challenging appointment of an Advocate general
for the state – AG had allegedly crossed 62 years of age. The HC asked St govt to decide
within 15 days and inform the HC. The State govt filed a SLP to SC that stayed the HC order.
• SC ruled that legal issue about age is already settled – that age bar is not applicable to Adv
gen.
• These cases not checked by the petitioner at the time of filing – costs of Rs 1 lakh imposed for
frivolous PIL.
• Issued guidelines –
• Appropriate that each HC frames their PIL guielines – if not done already, to do so within 3 months
• Should ensure there is no personal gain or private motive involved
• Urgency and gravity to be given priority
• Substantial public interest involved
• Petitions with ulterior motives or frivolous matters to be discouraged with exemplary costs
• Example – Juhi Chawala’s PIL against 5G auction – dismissed as frivolous by SC.