Analysis of Article 32 of the Constitution of India: Right to constitutional remedies

January 26, 2022

Analysis of Article 32 of the Constitution of India: Right to constitutional remedies

INTRODUCTION

Individuals have the right under Article 32 of the Indian Constitution to petition the Supreme Court for justice if they believe their rights have been “unduly denied.” As the “protector and guarantee of Fundamental Rights,” the Supreme Court is granted the jurisdiction to make directions or instructions for the implementation of any of the rights endowed by the constitution.

According to Article 32, the parliament may also appoint any other court to exercise the power of the Supreme Court if it is within its jurisdiction. Furthermore, until the Constitution is amended, the rights granted by this Article cannot be suspended. As a result, we can say that this article guarantees an assured right to individuals for the enforcement of fundamental rights because the law gives an individual the right to directly approach the Supreme Court without going through the lengthy process of moving to lower courts first, as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of Fundamental Rights.

Right to constitutional remedies

Dr. Ambedkar referred to Article 32 as the “spirit of the constitution and exceptionally heart of it.” Preeminent Court has incorporated it in essential structural regulation. Furthermore, it is underlined that the right to petition the Supreme Court cannot be stopped, with the exception of the generally granted by the Constitution. This implies that, under Article 359, this prerogative is suspended during a national crisis.

Article 32 designates the Supreme Court as the protector and guarantor of fundamental rights. Furthermore, the Apex Court retains original jurisdiction over the power to issue writs. This means that an individual may approach SC directly for a cure rather than through an appeal.

Article 32 can only be invoked to get redress for basic rights established in Articles 12-35. It does not exist for any other legal right for which many laws are available.

What is WRIT?

A precept in writing, couched in the form of a letter, issuing from a court of justice, and sealed with its seal, addressed to a sheriff or other officer of the law, or directly to the person whose action the court desires to command, either as the commencement of a suit or other proceeding, or as incidental to Its progress, and requiring the performance of a specified act, or giving authority and commission to have it performed. See the following titles for the names and descriptions of several specific writs.

According to old English law. An Instrument In the form of a letter; a letter of attorney. This is a very old meaning of the term.

In the old literature, “writ” is comparable to “activity,” hence writs are sometimes classified as genuine, personal, or mixed.

According to Scots law. Writing; a written instrument such as a deed, bond, contract, etc.

Constitutional Philosophy of Writ Jurisdiction

An individual whose privilege (Fundamental Right) has been violated by an unreasonable administrative action may seek redress from the Court. According to Article 32(2) of the Indian Constitution, “the Supreme Court will have the capacity to issue bearings or requests or writs, including writs in the concept of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the requirement of any of the rights granted by this Part.” Article 32 is a fundamental right enshrined immediately in Part III of the Constitution. Under this Article, the Supreme Court has the authority to relax the traditional Locus Standi criteria and allow the general public to intervene in cases in the name of public interest litigation (PIL).

Comparative Analysis of Article 32 & 226

Article 32 is not to be invoked for encroachment on an individual right of the agreement (contract), nor is it to be invoked for unresolved issues that are transferable under other laws. According to Article 226(1) of the Indian Constitution, “notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises 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,

As is clear from the exposed language, this Article allows a person to petition the High Court for the execution of basic rights as well as the implementation of any other lawful right. Article 226 confers broad authority on the High Courts. It serves as a key reservoir of legal authority to regulate an organisation. Its capacity under Article 226 cannot be reduced by legislation. As a result, forces provided by High Courts under Article 226 are more extensive as compared to forces provided by the Supreme Court under Article 32 of the Indian Constitution.

Type of Writs

The Constitution empowers the Supreme Court and High Courts to issue orders or writs.

The types of writs are:

Habeas Corpus
Certiorari
Prohibition
Mandamus
Quo Warranto

Habeas Corpus: Habeas Corpus is a writ that is used to protect an individual’s fundamental right to liberty from unlawful detention. This writ orders a public authority to bring a detained individual before the court and establish sufficient reasons for the confinement. This writ, however, cannot be issued if the procedure is for contempt of a legislature or a court.

Certiorari: A writ of certiorari is given to a lower court directing that a matter be transferred for review, generally to overturn the lower court’s verdict. In the event that a lower court’s judgement is challenged by a party, the Supreme Court issues a writ of certiorari. It is issued if the higher court determines that there is an issue of over jurisdiction or lack of jurisdiction.

Prohibition: A prohibition writ is a writ issued by a higher court to a subordinate court to compel inactivity within the jurisdiction. It only occurs when the higher court determines that the matter is outside the lower court’s jurisdiction. Only judicial and quasi-judicial authority can be served with a Writ of Prohibition.

Mandamus: A writ of mandamus is issued to a subordinate court, a government authority, or a corporation or other institution requiring the execution of certain acts or tasks.

Mandamus, unlike Habeas Corpus, cannot be awarded against a private individual.

The writ of mandamus can be used to order the completion of a work or, in some situations, the cessation of an activity.

Quo-Warranto: A person who claims or usurps a public position is granted a quo warranto. The court uses this writ to determine ‘by what authority’ the individual supports his or her claim.

The court investigates the legitimacy of a person’s claim to a public office using this writ. This writ prohibits an individual from illegally assuming public office.

CONCLUSION

PIL in India has taken on a complex character in the hands of the Supreme Court. The deeply ingrained ill-advised structure has been bypassed. With the advent of legal activism, letters, paper reports, dissensions by open lively individuals, social activity groups transmitting to the Court in regards to violation of main rights were handled as writ petitions, and pay relief was also permitted through writ jurisdiction.

Article 32 grants the subjects extraordinary powers with immediate effect. Furthermore, when PILs are recorded, writs are often summoned against the state and issued. The Constitution’s Writ Jurisdictions, on the other hand, contain privilege restrictions and are discretionary in nature, but they are unbounded in their breaking points. In any event, the vigilance is exercised in accordance with legal norms.

REFERENCE

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

Do follow me on Facebook, Twitter Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com

In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

January 26, 2022