Article 32,226

RIGHT TO
CONSTITUTIONAL
REMEDIES
ARTICLE-32,226
-SHIVANI SHARMA
-ASSISTANT PROFESSOR
-SARDAR PATEL SUBHARTI INSTITUTE OF LAW

INTRODUCTION
 The citizens of India are guaranteed certain basic
fundamental rights by the state, which cannot be taken
away from them except in cases of procedure
established by law.
 Such a guarantee is instrumental in reducing the
arbitrariness of government legislation.
 In the absence of fundamental rights, the citizens may
not be entitled to any basic human rights.
 Thus to prevent this, the constitution-makers
incorporated Part III of the Indian
Constitution enumerating a list of rights that is to
assured by the state.

ARTICLE-32Remedies 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 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

RELEVANCE
 Article 32 was incorporated in the Indian Constitution to assure
that the citizens and individuals are not subject to unreasonable
vitiation of fundamental rights.
 This article guarantees the right to constitutional remedies. Any
individual, whose fundamental right has been violated by the
state, has the right to approach the Supreme Court of India for
enforcement of the said right.
 Dr. Ambedkar, who was the chairman of the drafting committee of
the Indian Constitution, rightly called this article as:
‘The very soul of the Constitution and the very heart of it.’
 The Constitution of India would be meaningless without this
provision.

WRITS
 Fundamentally, a writ is a formal written order
issued by anybody, executive or judicial, authorized
to do so. In modern times, this body is generally
judicial.
 Therefore, a writ can be understood as a formal
written order issued by a Court having authority to
issue such an order.
 Orders, warrants, directions, summons etc. are all
essentially writs.
 A writ petition is an application filed before the
competent Court requesting it to issue a specific
writ.

HABEAS
CORPUS
‘Habeas Corpus’
translates
literally to ‘to
have a body’.
This writ is
issued by the
Supreme Court
when the
personal liberty
of an individual
is vitiated,
particularly in
cases of illegal
detention.
MANDAMUS
‘Mandamus’
means ‘we
command’. The
writ of
mandamus is
used by higher
courts to enforce
their decisions
on the lower
courts. The
Supreme court
can invoke this
writ in
circumstances
when the lower
public authority
has a duty, but it
CERTIORARY‘
Certiorari’
means ‘to
certify’ or ‘to
quash’. This writ
of Certiorari can
be invoked to
quash a lower
court or
tribunals have
passed the order
of that. It can
only be issued
against judicial
orders
PROHIBITION
The writ of
Prohibition is
also known as
‘stay order’.
This writ is
invoked by the
Supreme Court
to get any
lower court to
stop acting
beyond its
jurisdiction.
QUO
WARRANTO
The literal
meaning of ‘Quo
Warranto’ is ‘by
what warrants’.
The Supreme
Court can invoke
the writ of quo
warranto in cases
where the act
carried out by a
holder of public
office exceeds
their authority.

WRIT OF HABEAS CORPUS
 ‘Habeas Corpus’ literally means “to have a body of”. This writ is used
to release a person who has been unlawfully detained or imprisoned.
By virtue of this writ, the Court directs the person so detained to be
brought before it to examine the legality of his detention. If the
Court concludes that the detention was unlawful, then it directs the
person to be released immediately.
 Examples of unlawful detention are:
 The detention was not done in accordance with the procedure laid down. For
instance, the person was not produced before a Magistrate within 24 hours.
 The person was arrested when he did not violate any law.
 An arrest was made under a law that is unconstitutional.
 This writ can be filed by the detained person himself or his relatives
or friends on his behalf. It can be issued against both public
authorities and individuals.
 It should be noted that the principle of res judicata and constructive res judicata are
held not applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V.
Union of India, AIR 1967 SC 1335

WRIT OF MANDAMUS
 ‘Mandamus’ means ‘we command’. It is issued by the Court to direct a
public authority to perform the legal duties which it has not or refused to
perform.
 It can be issued by the Court against a public official, public corporation,
tribunal, inferior court or the government. It cannot be issued against a
private individual or body, the President or Governors of States or against a
working Chief Justices.
 Further, it cannot be issued in the following circumstances:
 The duty in question is discretionary and not mandatory.
 For the performance of a non-statutory function.
 Performance of the duty involves rights of purely private nature.
 Where such direction involves violation of any law.
 A writ petition seeking mandamus must be filed by the person who has an
interest in the performance of the duty by the public authority.

WRIT OF CERTIORARY
 ‘Certiorari’ means to ‘certify’. Certiorari is a curative writ. When
the Court is of the opinion that a lower court or a tribunal has
passed an order which is beyond its powers or committed an error of
law then, through the writ of certiorari, it may transfer the case to
itself or quash the order passed by the lower court or tribunal.
 A writ of prohibition is issued by a Court to prohibit the lower
courts, tribunals and other quasi-judicial authorities from doing
something beyond their authority. It is issued to direct inactivity and
thus differs from mandamus which directs activity
WRIT OF PROHIBITION

WRIT OF QUO WARRANTO
 ‘Quo Warranto’ means ‘by what warrant’.
 Through this writ, the Court calls upon a person
holding a public office to show under what authority
he holds that office.
 If it is found that the person is not entitled to hold
that office, he may be ousted from it.
 Its objective is to prevent a person from holding an
office he is not entitled to therefore preventing
usurpation of any public office.
 It cannot be issued with respect to a private office.

ARTICLE-226
Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32
every High Court shall have powers,
throughout the territories in relation to
which it exercise jurisdiction, to issue to
any person or authority, including in
appropriate cases, any Government, within
those territories directions, orders or
writs, including writs in the nature of
habeas corpus, mandamus, prohibitions,
quo warranto and certiorari, or any of
them, for the enforcement of any of the
rights conferred by Part III and for any
other purpose

CONT…
(2) The power conferred by clause ( 1 ) to issue
directions, orders or writs to any Government,
authority or person may also be exercised by
any High Court exercising jurisdiction in
relation to the territories within which the
cause of action, wholly or in part, arises for
the exercise of such power, notwithstanding
that the seat of such Government or authority
or the residence of such person is not within
those territories

(3) Where any party against whom an interim order, whether by
way of injunction or stay or in any other manner, is made on, or
in any proceedings relating to, a petition under clause ( 1 ),
without
(a) furnishing to such party copies of such petition and all documents in
support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application
to the High Court for the vacation of such order and furnishes a copy of
such application to the party in whose favour such order has been made
or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is
received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the
last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of,
the interim order shall, on the expiry of that period, or, as the case may
be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall
not be in derogation of the power conferred on the Supreme
court by clause ( 2 ) of Article 32

JUDICIAL REVIEW
 Judicial review is a type of court proceeding in which a judge
reviews the lawfulness of a decision or action made by a public
body.
 In other words, judicial reviews are a challenge to the way in
which a decision has been made, rather than the rights and
wrongs of the conclusion reached.
 It is not really concerned with the conclusions of that process
and whether those were ‘right’, as long as the right procedures
have been followed. The court will not substitute what it thinks
is the ‘correct’ decision.
 This may mean that the public body will be able to make the
same decision again, so long as it does so in a lawful way.

CONT…
 If you want to argue that a decision was incorrect, judicial
review may not be best for you. There are alternative
remedies, such as appealing against the decision to a higher
court.
 Examples of the types of decision which may fall within the
range of judicial review include:
 Decisions of local authorities in the exercise of their duties to provide
various welfare benefits and special education for children in need of
such education;
 Certain decisions of the immigration authorities and the Immigration
and Asylum Chamber;
 Decisions of regulatory bodies;
 Decisions relating to prisoner’s rights.

CASE STUDY
 His Holiness Kesavananda Bharati Sripadagalvaru
and Ors. v. State of Kerala and Anr.
The Court partially cemented the prior
precedent Golaknath v. State of Punjab, which held that
constitutional amendments pursuant to Article 368 were
subject to fundamental rights review, by asserting that
only those amendments which tend to affect the 'basic
structure of the Constitution' are subject to judicial
review. At the same time, the Court also upheld the
constitutionality of first provision of Article 31-C, which
implied that any constitutional amendment seeking to
implement the Directive Principles, which does not affect
the 'Basic Structure', shall not be subjected to judicial
review.

CONT…
 Indira Gandhi v. Raj Narain,
A Constitutional amendment to regularise Prime
Minister Indira Gandhi’s election was struck down
citing the basic features of democracy, rule of law
and equality. In Minerva Mills v. Union of India, the
Parliament, through the Constitution
(42nd Amendment) Act, 1976, attempted to
circumvent Kesavananda Bharati by making
Parliamentary power unlimited. The Court in this
case struck down the amendment on the ground
that the judicial review of Parliamentary
enactments, and the limitation of Parliamentary
power to amend the Constitution, were themselves
part of the basic structure of the Constitution.

 From 1975 onwards, the courts have interpreted and
expanded the doctrine to include judicial review of
decisions by the High Court and Supreme Court under
Articles 226 and 32, secularism and federalism, the
freedoms under Article 19, judicial independence,
and recently, judicial primacy in the judicial
appointment process to the basic structure and
framework of the Constitution.
 However, it was not until much later that the
Supreme Court ruled on the question of whether an
addition to the Ninth Schedule would make the listed
statute immune from the requirement of not
infringing on a fundamental right.
 In I.R. Coelho v State of Tamil Nadu the Supreme
Court held that all laws were subject to the test of
being consistent with fundamental rights, which are a
part of the basic structure.

PUBLIC INTEREST LITIGATION
 The introduction of social action litigation popularly
known as Public Interest Litigation (or)
 Though PIL, supreme court shows its Judicial Activism
 The court has entertained the complaints made through
letters address to it by public spirited citizens of the
violation of the rights of disadvantages, dispossessed
and deprived persons (or)
 group of persons who because of their future (or)
socially (or) economically disadvantaged position unable
to approach the court for itself the trade rule of locus
standi has been relaxed.

 In PIL, the strict rule of locus standi approved to private
litigation is relaxed and a broad rule is evolved which gives the
right of locus standi to any member of the public acting bonfire
and having sufficient interest in instituting an action for
reducing of public wrong
 The PIL jurisdiction forged by supreme court is an extension of
its jurisdiction under Article 32 of the constitution.
 PIL is not in the nature of adversary litigation, but it is a
challenge and an opportunity to the government and its officers
to take basic human rights meaningful to the deprived and
vulnerable sections of the community and to assure them socio
and economic Justice which is the signature tune of our
constitution.
 The important innovation in the matter of PIL is relaxation
regarding locus standi. Though no hard and fast rules have been
laid down in this regard, in S.P.Gupta and others Vs U.O.I and
others, popularly known as Judges transfer case the supreme
court elaborately stated the rule in this regard.

Hussainara Khatoon v. State of Bihar
 Many have regarded this case as the first PIL in
India as well. In this case, the attention of the
Court focused on the incredible situation of
under-trials in Bihar who had been in detention
pending trial for periods far in excess of the
maximum sentence for their offences.
 The Court not only proceeded to make the right
to a speedy trial the central issue of the case,
but passed the order of general release of close
to 40,000 under-trials who had undergone
detention beyond such maximum period.

Parmanand Katara v. Union of India
 Parmanand Katara, a human rights activist, filed a writ petition in
the Supreme Court. His basis was a newspaper report concerning
the death of a scooterist after an accident with a speeding car.
Doctors refused to attend to him. They directed him to another
hospital around 20 km. away that could handle medico-legal
cases. Based on the petition, the Supreme Court held that:
 Preservation of human life is of paramount importance.
 Every doctor, at a government hospital or otherwise, has the
professional obligation to extend his/her services to protect life.
 There should be no doubt that the effort to save the person
should receive top priority. This applies not only to the legal
profession, but also to the police and other citizens part of the
matter.

M.C. Mehta v. Union of India
 The judgement delivered on January 12, 1988 lashed out at civic
authorities for allowing untreated sewage from Kanpur’s
tanneries to make its way into the Ganges.
 The court passed three landmark judgments and a number of
Orders against polluting industries, numbering more than 50,000
in the Ganga basin, from time to time. In this case, apart from
industries, more than 250 towns and cities also had to set
up sewage treatment plants.
 600 tanneries operated in a highly congested residential area of
Kolkata. The ruling shifted them out of the city and relocated
them to a planned leather complex in West Bengal. The Court
closed down several industries, allowing them to reopen only
after setting up effluent treatment plants and controlled
pollution. As a result, millions of people escaped air and water
pollution in the Ganga basin, covering eight states in India.

Rupa Ashok Hurra v. Ashok Hurra, (2002) 4
SCC 388 : AIR 2002 SC 1771
 The question before a Constitution Bench in this case was
whether an aggrieved person is entitled to any relief
against a final judgment/order of the Supreme Court,
after dismissal of review petition (under Article 137 of the
Constitution), either under Article 32 of the Constitution
or otherwise. It was held that:
 A final judgment/order passed by Supreme Court cannot be
assailed in an application under Article 32 of the Constitution of
India by an aggrieved person whether he was a party to the case
or not.
 The jurisdiction of Supreme Court under Article 32 of the
Constitution cannot be invoked to challenge the validity of a final
judgment/order passed by this Court after exhausting the remedy
of review under Article 137 of the Constitution read with Order
XI, Rule 1 of the Supreme Court Rules, 1966.

 It was pointed out above that Article 32 can be invoked only for
the purpose of enforcing the fundamental rights conferred in
Part III and it is a settled position in law that no judicial order
passed by any superior court in judicial proceedings can be said
to violate any of the fundamental rights enshrined in Part III. It
may further be noted that the superior courts of justice do not
also fall within the ambit of State or other authorities under
Article 12 of the Constitution.
 Though Judges of the highest Court do their best, subject of
course to the limitation of human fallibility, yet situations may
arise in the rarest of the rare cases, which would require
reconsideration of a final judgment to set right miscarriage of
justice complained of. In such case it would not only be proper
but also obligatory both legally and morally to rectify the error.
Therefore, the duty to do justice in these rarest of rare cases
shall have to prevail over the policy of certainty of judgment as
though it is essentially in public interest that a final judgment
of the final Court in the country should not be open to
challenge yet there may be circumstances, as mentioned above,
wherein declining to reconsider the judgment would be
oppressive to judicial conscience and cause perpetuation of
irremediable injustice.

 Therefore, it was held that the Supreme Court, to prevent abuse of
its process and to cure a gross miscarriage of justice, may
reconsider its judgments in exercise of its inherent power. This
was allowed by way of a curative petition.
 It was held that except when very strong reasons exist, the Supreme
Court should not entertain an application seeking reconsideration of
an order of the Court which has become final on dismissal of a review
petition. It is neither advisable nor possible to enumerate all the
grounds on which such a petition may be entertained. Nevertheless, a
petitioner is entitled to relief if he establishes (1) violation of
principles of natural justice in that he was not a party to the lis but
the judgment adversely affected his interests or, if he was a party to
the lis, he was not served with notice of the proceedings and the
matter proceeded as if he had notice and (2) where in the
proceedings a learned Judge failed to disclose his connection with the
subject-matter or the parties giving scope for an apprehension of bias
and the judgment adversely affects the petitioner.
 Detailed procedure for filing of curative petition was laid down in this
case, inter alia, including, that the curative petition shall contain a
certification by a Senior Advocate with regard to the fulfilment of the
requirements for filing the curative petition.

DIFFERENCE BETWEEN 32 AND 226
 The rights guaranteed by Article 32 can only be exercised for
the enforcement of fundamental rights only whereas the
rights conferred under Article 226 of the constitution can be
exercised not only for the enforcement of fundamental
rights but for ‘any other purpose’. The expression ‘and for
any other purpose’ in Article 226 will include the
enforcement of ordinary legal right which do not amount to
fundamental rights.
 Thus the power under Article 226 are wider than those under
Article 32.
 The order under Article 32 will Supersede the order passed
by the High Court under Article 226 of the Constitution
previously.
 An application under Article 226 may always be made first to
Supreme Court since Article 32 is itself a Fundamental Right.
It is Substantive right not a mere procedural right. There is
no need to resort to High Court Before Approaching to the
Supreme Court under Article 32.

Article 32,226

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Article 32,226