Article 32 and Constitutional Remedies

Article 32 allows a person to approach the Supreme Court for protection when a fundamental right is violated. It guarantees the right to move the Court by appropriate proceedings and empowers the Court to issue directions, orders or writs to enforce the rights conferred by Part III of the Constitution.

Nature and scope of the jurisdiction

Article 32 makes constitutional remedies themselves a fundamental right. The Supreme Court therefore acts as a guarantor and protector of fundamental rights.

• The Court exercises original jurisdiction: a person can approach it directly without first pursuing an appeal through lower courts.
• Its jurisdiction under Article 32 is confined to enforcing fundamental rights; a breach of an ordinary legal right alone does not justify this remedy.
• Under Article 226, High Courts can issue writs both for enforcing fundamental rights and for other purposes, making their writ jurisdiction wider in subject matter.
• Through public interest litigation, the Court has relaxed traditional standing requirements, allowing public-spirited persons to seek enforcement for people unable to approach it themselves.

Directions, orders and the five writs

Article 32(2) authorises directions, orders and writs, including the following five writs. The Court can frame appropriate relief to make enforcement effective rather than merely declare that a right exists.

• Habeas corpus requires a detained person to be brought before the court so that it can examine the detention and order release if it is unlawful.
• Mandamus commands a public authority to perform a public duty that it has failed or refused to perform.
• Prohibition prevents an inferior court or tribunal from continuing proceedings beyond its jurisdiction.
• Certiorari quashes an order of an inferior court or tribunal for defects such as lack or excess of jurisdiction or violation of natural justice.
• Quo warranto questions the legal authority by which a person occupies a public office and prevents unlawful occupation of that office.

Constitutional safeguards and qualifications

• Article 32(3) permits Parliament to empower other courts to exercise these remedial powers within their local jurisdiction, without prejudice to the Supreme Court's powers.
• Article 32(4) provides that the guaranteed right cannot be suspended except as otherwise provided by the Constitution.
• Under Article 359, during an Emergency, a presidential order may suspend the right to move any court to enforce specified fundamental rights, but it cannot cover Articles 20 and 21.