ABSTRACT

The Constitution of India has granted us several Fundamental Rights as well as safeguards
against their violations. The citizens get to exercise these rights with an option of taking the help
of judiciary in case their rights are violated. Since enlistment of rights (no matter how
meticulously they are explained in the Constitution) is not always enough, the Right to
Constitutional Remedies ensures that these fundamental rights are respected and valued.

Article 32 of the Indian Constitution – The Concept & Purpose

According to Article 32, when an individual feels that he has been “unduly deprived” of his
fundamental rights, he can move the Supreme Court and seek justice. Since the apex court is
considered “the protector and guarantor of the Fundamental Rights”, it is given the authority to
issue directions or orders for the enforcement of any of the rights conferred by the Constitution.

Under Article 32, the Parliament can also empower any other court to exercise the power of
Supreme Court “within the local limits of its jurisdiction”. The right to constitutional remedies
guaranteed by this Article can’t be suspended unless by some constitutional amendments. To
sum up the benefits of Article 32 for citizens, it must be said that the law provides an assured
remedy for enforcing the Fundamental Rights as the person can directly approach the Supreme
Court without having to follow a lengthier process of moving lower courts.

Role of Supreme Court and High Courts

Apart from the Supreme Court, the High Courts also have the power to protect fundamental
rights. Like the apex court, they also can issue writs for the enforcement of fundamental rights of
the citizens. In case of rights violation, the both courts can issue five different writs – Certiorari,
Habeas Corpus, Mandamus, Prohibition, and Quo Warranto.

Under Certiorari writ, the apex court or the high courts can quash the order passed by a lower
court. It happens when a court passes an order acting against the ‘natural justice’ or there’s an
error of judgment. The Habeas Corpus writ is issued to prevent arbitrary arrest and detention.
Under this writ, the detained person must be produced before a court. The Mandamus (meaning
‘command’) is issued mainly for the public servants who are accused of “dereliction of duty.” To
prevent inferior courts from overstepping their jurisdiction, the Prohibition writ is issued by the
Supreme Court or the High Courts. Quo warranto (meaning ‘by what right’) is issued to
determine the legality of a person’s claim to a public office. In cases of usurpation, the courts can
announced the office to be vacant.

While Supreme Court can issue writs only in case of infringement of a fundamental right
mentioned in the part III of the Constitution, the High Courts’ power to issue writs extends to
cases of breaching of ordinary law. Hence, High Courts enjoy a larger ambit. Alternatively, their
power of issuing writs is limited to their jurisdiction, which is not the case with the Supreme
Court.

Amendments to Article 32
The 42ndAmendment Act had included ‘Anti-Freedom’ clauses in Article 32. It was the time of
internal emergency when such an amendment was passed to curtail “both directly and directly”
the jurisdiction of the Supreme Court and the High Courts to review the enforcement of
fundamental rights. Immediately after the emergency was revoked, the Article 32A was repealed
by passing the 43rdamendment of the Indian Constitution. Following the amendment, the
Supreme Court regained power to quash state laws. The amendment also empowered the High
Courts to question constitutional validity of Central Laws.

Limitations of Article 32
During certain circumstances, the privileges that citizens ought to get under Article 32 are
negated. The right to constitutional remedies is denied when the President of India proclaims
emergency. According to Article 352, the fundamental rights to the citizens remain suspended.
Similarly, the Article 358 gives Parliament the authority to curtail the rights guaranteed by the
Constitution.

Submitted by :-

Mohit Jain

18LLB101