Provisions under article 32
Remedies for enforcement of rights conferred by this Part
- The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
- The Supreme Court shall have the 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.
- 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)
- The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
Analysis of article 32
- Only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights and so on.
- Article 32 can only be invoked when legislation or executive order directly infringe any of the fundamental rights. Article 32 cannot be invoked to simply to determine the constitutionality of an executive order or legislation.
- Rights under Article 32 cannot be suspended except under procedure established by article 359.
- Article 32 can only be invoked to get a remedy for violation of fundamental rights enshrined under part III of the constitution (Article 12-35). In other words, it cannot be invoked for the enforcement of legal rights or other constitutional rights.
- Supreme Court’s jurisdiction under article 32 is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226. It means in case of violation of fundamental rights a person has the option to move High Court or directly to the Supreme Court.
- Supreme Court may not act under article 32 if the party has already exercised its rights under article 226 i.e. writ application is being heard at High Court.
Significance of article 32:
- Ambedkar called the rights under article 32 as soul and very heart of the constitution.
- This article makes the Supreme Court both the guarantor and defender of fundamental rights.
- This article provides right to anyone to approach the Supreme Court or High Court for a remedy against the breach of fundamental rights (for herself or anyone else).
Present examples of writ usage Petition for writ of habeas corpus was filed by Jagdish Arora wife of Prashant Kanojia. He was arrested by the UP police in a defamation case for posting a tweet against UP CM. In this case, the Supreme Court ordered his immediate release on bail and underlined that fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21… are non-negotiable.
- Habeas Corpus
It is a Latin term which literally means ‘to have the body of’.
- It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it.
- The court then examines the cause and legality of the detention.
- It would set the detained person free if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention.
- It can be issued against both public authorities as well as private individuals.
- Limitations: The writ is not issued where the: (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court. [ie. A particular H.C.]
- Habeas Corpus is rendered ineffective if the detenu is produced before Judicial Magistrate.
Compensation for the wrongful detention: A new dimension to Habeas Corpus was added by the case Rudul Sah v. the State of Bihar. A person wrongfully detained by the state can seek compensation from the state. Who can file an application? Any person on behalf of prisoner or detenu or the prisoner/ detenu himself can file a writ of Habeas Corpus. In the case of Sunil Batra v. Delhi Administration, a prisoner has written to a Supreme Court judge about the inhuman torture of fellow judge. This application was treated as Habeas corpus by the judge and issued appropriate actions. In ADM Jabalpur v. Shivakant Shukla case, also known as Habeas Corpus case, it was held that writ of Habeas Corpus cannot be suspended even during the emergency under article 359.
- Mandamus: It literally means ‘we command’.
- It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform or has wrongfully performed.
- Examples- For every action having a legal authorization
- Asking D.C. to provide Compensation for Land Acquisition
- Asking the State to consult Gram Sabha before felling of Trees in certain areas
- Timely payment of Widow pensions
- Elimination of Manual Scavenging
- It can also be issued against any public body, a corporation, an inferior court, a tribunal or government itself [i.e. not only against officers] for the same purpose.
- Before the issue of the writ of Mandamus, the petitioner has to prove that he has a right to enforce public duty in his favor. i.e. petitioner’s legal rights must be involved
The writ of mandamus cannot be issued:
- against a private individual or body;
- to enforce departmental instruction that does not possess statutory force;
- when the duty is discretionary and not mandatory;
- to enforce a contractual obligation;
- against the president of India or the state governors; and
- against the chief justice of a high court acting in a judicial capacity.
The Court in C.G. Govindan v. the State of Gujarat, case refused to issue the mandamus writ against the governor to approve the fixation of salaries of the court staff by the Chief Justice of High Court under Article 229. Mandamus, in general, cannot be issued against a private individual or body except in the case where the state is in collusion of that private party. It was held in The Praga Tools Corporation v. C.V. Manual, and Sohanlal v. Union of India case. Note: Mandamus is a discretionary remedy and High Courts may refuse to grant it where some alternate remedy is available.
- However, in the matters of enforcement of Fundamental Rights, the availability of an alternative remedy does not weigh so much.
- It is issued when one or the other organization from Judiciary, Executive or Legislature refuses to exercise its jurisdiction. If S.H.O of as particular Police Station refuses to arrest a criminal politician accused of rape or other heinous crime.
- High Courts can issue these writs even for violation of Ordinary rights.
- Mandamus can be issued even negatively, to direct a public official not to implement a law which is unconstitutional. So, Mandamus works both ways: Positively as well as negatively
- The Courts are normally reluctant to issue any direction to Govt for making a Law Recently former Law Minister moved S.C. to issue directions to Govt to enact a Law against Torture. But S.C. refused.
- Prohibition: Literally, it means ‘to forbid’. [negative connotation]
- It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
- Thus, unlike mandamus that directs activity, the prohibition directs inactivity.
- The writ of prohibition can be issued only against judicial and quasi-judicial authorities.
- In can be issued before the judicial authority has passed its order. Thus, the nature of this writ is preventive.
- It can be issued when there is absence or excess of jurisdiction or the Violation of the principles of natural justice.
- In all cases, where the party aggrieved may have ample remedy by an appeal from the order or judgment of the Inferior Court, the prohibition will not lie.
- Limitation: It is not available against administrative authorities, legislative bodies, and private individuals or bodies.
Supreme Court in Bengal Immunity Co. Ltd held that the writ can be used in the cases where inferior tribunals are exercising jurisdiction in excess of their authority. In East India Commercial Co. Ltd v. Collector of Customs, an inferior tribunal was prohibited from continuing with a proceeding, where it appeared that the tribunal was exceeding its jurisdiction.
- In the literal sense, it means ‘to be certified’ or ‘to be informed’.
- It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
- It is issued on the grounds of the excess of jurisdiction or lack of jurisdiction or error of law.
- Till recently, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorities.
- However, in 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals.
- Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.
- Certiorari is always available against inferior courts and not against the equal or higher court.
Difference between Prohibition and Certiorari
The main difference lies in the stage, where the writs can be issued. Writ of prohibition can be issued by the Superior Court when a tribunal takes up a matter for hearing over which it has no jurisdiction. The order of the superior court will forbid the tribunal from continuing the proceedings. The writ is of preventive in nature. Writ of 'certiorari" can be issued by the Superior Court also after the Court/tribunal has issued a decision. The order will quash the decision of the court. This writ is both preventive and curative in nature. Case study The Supreme Court, in Isha Beevi's case (supra), ruled that in order to substantiate a right to obtain a writ of prohibition from a High Court or from this Court, an applicant has to demonstrate the total absence of jurisdiction to proceed on the part of the officer or authority complained against.
- It means ‘by what authority or warrants’.
- It is issued by the court to inquire into the legality of the claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.
- The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.
- It cannot be issued in cases of ministerial office or private office.
- Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.
In Jamalpur Arya Samaj v. Dr. D. Ram case, the writ was denied on the ground that writ of quo warranto cannot lie against an office of a private nature. Also, the office must be pf substantive in nature.