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Right To Constitutional Remedies (Art 32, 33, 34 & 35)

Fundamental Rights are justiciable right. Article 32 grants right to constitutional remedies. One can approach the Supreme Court under Article 32 for enforcement of fundamental rights. Dr. Ambedkar has said that Article 32 is heart and soul of the Indian Constitution. Article 32 reads as under:

A person’s has right to approach Supreme Court for enforcement of Fundamental rights by appropriate proceedings. The Supreme Court has done liberal interpretation of the term appropriate proceedings. Even a letter addressed to the Supreme Court can be treated as writ petition. Sunil Batra lodged in Tihar Jail wrote a letter to the Supreme Court regarding torture in jail, which was treated writ petition.

What are powers of the Supreme Court to issue writs under Article 32 ?

The Supreme Court has been given wide powers under Article 32. The supreme Court can issue any direction, order or writs including that of habeus corpus, mandamus, prohibition, quo warranto and certiorari.  These writs have theor origin in English Law. These writs were issued by Court of Kings Bench.

 Habeus Corpus means “to have the body of”. By writ of habeus corpus a person who is confined without legal justification may secure a release from confinement. Once the writ is issued such detained person has to be produced before the Court. Thus habeus corpus writ is essential safeguard to personal liberty.

Certiorari

Certiorari  means  “to be certified of”. Writ of Certiorari is an order to inferior courts/tribunals   to transmit it the record of proceedings pending with them for scrutiny and if necessary quashing the same. This writ is issued when the inferior court acts in access of its authority.

Prohibition

Prohibition means “to forbid”. Writ of Prohibition commands the court or the tribunal to whom it is issued to refrain from doing something which it is about to do. It prevents a tribunal possessing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction which it does not possess. Thus, the writ lies both for excess of jurisdiction and absence of jurisdiction.

Mandamus

Mandamus means “we command”. Mandamus is a judicial remedy, which is in the form of an order form a superior court to any government, court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, which is in nature of pubic duty and in certain cases a statutory body.

Quo Warranto

Quo Warranto means “by what authority or warrant”. The object of this writ is to prevent a person who has wrongfully usurped an office form continuing that office. The writ calls upon the holder of the office to show to the court under what authority he holds the office.

Public Interest Litigation

Generally, a person who is aggrieved can seek a remedy under law. A person has to prove his locus standi i.e. right to bring an action to the Court before getting any relief. This principle has been relaxed in case of Public Interest Litigation. The Supreme Court in S. P. Gupta Vs. Union of India (AIR 1982 SC 149) discussed in detail the need for relaxation of locus standi for maintaining rule of law, furthering cause of justice and accelerating the pace of realization of the constitutional objectives.

The Supreme Court in Bandhua Mukti Morcha Vs. Union of India (1984) 3SCC 161 observed that where a person or a class of persons to whom legal injury is caused by reason of violation of a fundamental right is unable to approach the court for judicial redress on account of poverty disability or socially or economically disadvantaged position, any member of public acting bonafide can move to the court for relief under Article 32.

Are Fundamental Rights applicable on Armed Forces ?

Parliament under Article 33 can specify the extent to which Fundamental Rights will be applicable in case of the following :

  • 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 orgnisations established by the State for purposes of intelligence or counter intelligence
  • persons employed in , or in connection with telecommunication system set-up for the purposes of any Force, bureau or aforesaid orgnisations

What restrictions are can be placed on FR in case of Martial Law ?

Parliament by law can indemnify any person in service of Union and State or any other person in respect of any act done by him in connection with maintenance or restoration of order in any area where martial law was in force. Parliament by law can also validate any sentence, punishment, forfeiture of any other acts done under martial law.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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