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Since the right to approach the SC is itself guaranteed under Art.

32, once the petitioner has,


prima facie, established by his affidavit the breach of a fundamental right, the court is bound to
hear the application on the merits. The court would not be justified to reject a petition under Art.
32 on the simple ground that it involved a determination of disputed question of facts1.

The writ of mandamus would issue under Art.32 to cancle an order of an administrative or
statutory public authority or the government itself where it violates a fundamental right. E.g Art.
142

In L. Chandra Kumar Vs Union of India1, the Supreme Court held that Henry J.
Abrahams definition of judicial review in the American constitution is, subject to a few
modifications, equally applicable to the concept as it is understood in Indian constitutional
law. Broadly speaking judicial review in India comprises three aspects. Judicial review of
legislative action, judicial review of judicial decisions and judicial review of administrative
action.3

Though the constitution makers of India have inserted a specific provision under Article 32 of
the constitution to go directly to the Supreme Court regarding legislative lapses concerned with
infringement of Fundamental Rights. Article 32 itself is the fundamental right and according to
Dr Ambedkar it is the soul of the constitution as without which there would be no meaning of
inserting the other fundamental rights in the constitution.But there has been no any specific
provision in the constitution to move the Supreme court direct on the unconstitutionality arising
out of the violation of the constitutional mandate relating to distribution of powers or separation
of powers or other constitutional restrictions which is equally vital. If the issue does not involve
infringement of fundamental rights guaranteed under part III of the constitution, the aggrieved
party has to move first the High court under article 226 and then only in appeal he can go to the
Supreme Court if relief is not given by the High Court.
Mandamus is a command issued by a court to an authority directing it to perform a public duty
imposed on it by law. Mandamus can be issued when the government denies to itself a
jurisdiction which it undoubtedly has under the law4 or where an authority vested with a power
improperly refuses to exercise it.5 Mandamus is employed to enforce a duty the performance of
which is imperative and not optional or discretionary with the authority concerned. 6 Writ of
mandamus can be issued to a public officer it is shown that the officer has failed to discharge his
statutory duties7.

1
Kochunni v. State of Madras, AIR 1959 SC 725 (734)
2
Ram Krishna Dalmia v. Tendolkar Justice, S.R., AIR 1958 SC 538 (544, 553); Bhagwanti v. Union of India, AIR
1989 4 scc 397.
3
(AIR 1997 SC 1125)
4
E.A. Co-operative Society v. State of Maharashtra, AIR 1966 SC 1449
5
Corborandum Universal v. India, AIR 1966 Mad. 365;
6
Chingleput Bottlers v. Majestic Bottling Co., AIR 1984 SC 1030.
7
Suseela v. State of Kerala, AIR 2009 (NOC) 377 (Ker) (DB)
To maintain a petition for mandamus, the petitioner must show that he has a right to compel the
government to act in a particular manner. In the absence of any such right cannot be granted. The
existence of such right is the sine quo non for the issuance of the writ8.

Article 14 guarantees equality before law9. It embodies the concept of equality. The courts have
interpreted Art.14 as outlawing unreasonableness in administration. The courts argue that an
unreasonable rule denies equality.

Article 32(1) says: The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this part is guaranteed. The word appropriate does not
refer to any form but to the purpose of the proceeding and, therefore, so long as the purpose of
the proceeding is enforcement of a fundamental right, it is appropriate.10

Clause (2) of Article 32 empowers the Supreme Court to issue directions or orders or writs,
including the 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
part III of the Constitution. The power of the court is not only injunctive in ambit, that is
preventing the infringement of a fundamentl right, but it is also remedial in scope and provides
relief against a breach of a fundamental right already committed.11

In the exercise of that wide power, the court has directed the state to pay compensation and
exemplary costs12 for the violation of fundamental rights.

It means that the right to move the Supreme Court guaranteed under Article 32(1) can be
excercised only through Appropriate proceedings.

8
Hochtief Gammon v. State of Orissa, AIR 1975 SC 2226; Mani Subrat v. State of Haryana AIR 1977 SC 276;
Secy., State of Karnataka v. Uma Devi AIR2006 SC 1806.

10
Bandha Mukti Morcha v. Union of India, AIR 1984 SC 802, 813- 814.
11
M.C.Mehta v. Union Of India, AIR 1987 SC 1086, 1091
12
Rudal Sah v. State of Bihar, AIR 1983 SC 1086; Bhim Singh v. State of J&K, AIR 1986 SC 494; M.C.Mehta v.
Union Of India, AIR 1987 SC 1086, 1091; Supreme court Legal Aid Committee v. State of Bihar, (1991) 3 SCC
482.