This article has been written by kumari sheetal , a 4^th year  BALLB student  from SRMS college of law , Bareilly MJP Rohelkhand University .

Right to constitutional remedies  

Introduction 

The constitution of India gives some fundamental rights which are very essential for overall development of individual .but what if these rights taken away from you by any state or individual? What will you do in that case? in order to deal with such situations our constitution of India gives us right to constitutional remedies, which Is 6^th fundamental right given in the constitution of India which includes article 32 according to which one can approach to supreme court and high court under article 226 we have borrowed  this from English law.

Article 32 of constitution of India 

The article 32 of Indian constitution basically deals with right to constitutional remedies. This article protects other fundamental rights. One can directly reach to the supreme court in the violation of any of the fundamental right including article 32 for enforcement under article 32 and that’s why dr. br. Ambedkar called this article as the heart and soul of the Indian constitution. 

This article consists of 4 provisions 

• One can directly approach the supreme court in case of violation of the fundamental rights 
• The supreme court can issue directions , orders and writs to protect fundamental rights 
• The parliament can authorize any other court for issuing writs to protect the fundamental rights
• Right to move to the court can be suspended during emergency by president under article 359 

the article 32 is basic feature of Indian constitution .the supreme court has called this article as defender of the constitution of India . 

 article 32 of the Indian constitution states that :-

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 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

Article 32 is itself a fundamental right 

 In Assam public works v. union of India AIR 2015 SC 783 it was held that Article 32 of the constitution guarantees the right to move the supreme court for the enforcement of all or any of the fundamental rights conferred by part 3 of the constitution . this article is therefore , itself a fundamental right 

The following the different types of writs issued by the court 

 Habeas corpus

this writ is issued when a person has been detained illegally. So if a person thinks that he have no committed any wrong and the police have detained him for no reason then he can approach the court for issuance of this writ which actually means to bring the body . the term habeas corpus is a latin word  means TO HAVE THE BODY OF  so the court orders the authorities to produce the body of the person who has been detained before the court . this writ can be issued against both private and public individuals .this writ cannot be issue in following cases – 

• When the detention is lawful
• The detention is outside the jurisdiction of the court 
• The person have contempted the court or legislature 
• Any court has given order to detain the particular person 

Rules related to the writ of Habeas Corpus

• The applicant should be in the custody of another
• Habeas corpus is filed by the detainee and the family members but the court may allow such applications by strangers as well. 
• The courts can take Suo moto cognizance of information received from any source and act accordingly in the public interest.
• The writ cannot be successively made to different judges of the same court. 
• Habeas Corpus will apply if procedures, as required by law, are not followed in arrests made by the police.

 Mandamus 

Mandamus means WE COMMAND . so  this writ of mandamus is issued by a superior court to an inferior court to ask them to do something or abstain from doing something . for example it is the duty of the judge to follow the principles of natural justice and if he is not doing the same he could be commanded by the superior court to follow those principles while delivering the judgment.

This Writ of Mandamus can be issued on the following grounds:

• The right must be recognized by law.
• There must have been an infringement of the right of the petitioner.
• The petitioner must have demanded the performance duty but there has been non-performance. 
• There is an absence of an effective alternative remedy.
• The petitioner can show duty is owed to him by the authority and hasn’t been performed.
• On the date of the petition, the right must be subsisting.
• The writ of Mandamus is not issued for anticipatory injury

Quo warranto 

when any private individual assumes an office to which he has no right then the writ of quo – warranto . quo –warranto basically means – BY WHAT AUTHORITY  so when an private individual assumes such office in which he has no power no right then the court can ask him and question him about that . for example if an person imposing the duty of inspector on him and functions accordingly the court can stop him from doing so and ask him under what authority he is doing so .

Conditions for Writ of Quo Warranto to be issued:

• The office must be a public office to which has been wrongfully assumed.
• The office was created by a statute or by the constitution itself.
• The duties which arise from this office are public in nature.
• The term of the office should be of permanent nature and it shouldn’t be terminable by any person or authority’s pleasure. 
• The person against whom the Writ is to be issued, should be in possession of the office.

Prohibition 

The writ of prohibition is issued when a superior court feels that the lower court does not have the jurisdiction to hear a case . for example there is a high court order , the appeal against high then can’t be heard by a district court in this case the district court will be prohibited to hear appeal against high courts decision  the meaning of prohibition is TO FORBID .

the writ of prohibition can be issued on these grounds:

1. The inferior court or tribunal has overstepped its jurisdiction;
2. The court or tribunal is acting against natural justice;
3. Unconstitutionality of a Statute;
4. Violation of Fundamental Rights

certiorari

the writ of certiorari is issued when a superior court finds the order of lower court having violated principles of natural justice or there is some error in the procedure . in the case the superior court can quash the order of the lower court . for example if district court is hearing a case and there is a decision that has been given and the high court feels that this decision is not proper when it hears it in a appeal then it can quash the order of the lower court . certiorari means TO BE CERTIFIED. 

The conditions necessary for the issue of the writ of certiorari are:-

1. The body or person has legal authority; 
2. The action must be affecting the rights of the people.;
3. Having the duty to act judicially;
4. The action must be in excess of their jurisdiction.

Grounds for writ of certiorari:

1. Error of jurisdiction 
2. Lack of jurisdiction
3. Excess of jurisdiction
4. Abuse of jurisdiction
5. Error of law apparent on the face of the record
6. Violation of principles of natural justice

scope of article 32 

cases illustrating proposition about the scope of article 32 are the following –

1. Haji esmail noor mohammad and co. v. competent officer , lucknow AIR 1967 SC 1244
2. Kuriakose v. state of kerala AIR 1977 SC 1509

In rajasthan state road transport corporation v. santosh AIR 2013 SC 2150 it was held that it is permissible for court in exercise of power under article 32 of the constitution to issue directions if the law does not provide a solution of problems , as an interim measure .

Conclusion

Hence it can be concluded from the above discussion that as fundamental rights are justiciable in court of law and are justciable in nature so when the fundamental rights are taken away from someone , one can move to the supreme court . article 32 of the Indian constitution make sure this .court may issue writs to make sure the fundamental rights are not violated .hence fundamental rights are protected by the right to constitutional remedies .

 References

The CONSTITUTION OF INDIA bare act by PM BAKSHI 17^th edition universal lexis nexis 

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