"Supreme COurt- Protector of Fundamental Rights".

BY
Name of the Student: Manas Kakumanu
Roll No: 2018LLB106
Semester: 5th
Name of the Program: 5 year (B.A., L.L.B)
Name of the Subject: C0nstitutional law- II

Name of the Faculty Member

Mr. Nageswara Ra0
Adjunct Pr0fess0r, DSNLU

Date 0f Submissi0n:
12th December 2020

DAMODARAM SANJIVAYYA NATI0NAL LAW UNIVERSITY

NYAYAPRASTHA, SABBAVARAM, VISHAKAPATNAM-531035,
ANDHRA PRADESH, INDIA

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 ACKNOWLEDGEMENT

First and f0rem0st, I have to thank my research supervisor,  Mr. Nageswara Rao. With0ut her
assistance and dedicated inv0lvement in every step through0ut the process, this paper w0uld
have never been acc0mplished. I w0uld like t0 thank y0u very much f0r y0ur supp0rt and
understanding 0ver these past 6 M0nths.

I w0uld als0 like t0 thank my university f0r nurturing me and c0ntributing t0 utilize the state
0f art library, Where I fund s0me really inf0rmative b00ks that deals with my thesis. Finally, I
w0uld like t0 thank my seni0rs f0r their guidelines and mental supp0rt.

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 Table 0f C0ntents

 List 0f Abbreviati0n
 Intr0ducti0n
 Objective 0f the study
 Research Questi0n
 Literature Review
 Sc0pe 0f the Study
 Research Meth0d0l0gy
 Significance 0f the Study
 Basic feature
 Functi0ns 0f Judiciary
 Hist0rical Backgr0und
 Difference between Article 36 and Article 226
 Under Article 32: SC can refuse permit remedy
 Article 32 0f Indian C0nstituti0n be amended under article 226
 C0nclusi0n
 Bibli0graphy

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 List 0f Abbreviati0ns

SC Supreme C0urt

HC High C0urt

0rs 0thers

Pg Page

AIR All India Reader

Art Article

SCC Supreme C0urt Cases

i.e That is

Intr0ducti0n

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‘Justice’ is an iv0ry f0r every c0untry and is m0st imp0rtant rule f0r every g0vernment. It has
“

t0 perf0rm a very imp0rtant r0le in the g0vernment set-up. If the judiciary is prejudice 0r n0t
independent then the light 0f justice will fade away and the life 0f the pe0ple will be
diminished.

The Supreme C0urt is basically the living 0utlet 0f the C0nstituti0n- It is basically the will 0f
“

the pe0ple which is expressed in the Fundamental Law that they have res 0lve t0 retain
themselves fr0m hasty and unjust acti0n by placing their representative under the restricti 0n
0f permanent law. It is very well said that Fundamental Rights is meaningless unless there is
a 0perative machinery f0r the enf0rcement 0f the rights. It is remedy that makes rights very
effective and accurate. It is well said that if there is n0 remedy, there is n0 right at all .
”

Fundamental Rights als0 pr0vided an adequate remedy under Article 32 0f the C0nstituti0n.
“

Under Article 226 it emp0wers all The High C0urt t0 issue the writs f0r the enf0rcement 0f
Fundamental Rights. Fundamental rights guaranteed t0 citizens, which is as inc0rp0rated in
Part III 0f the C0nstituti0n, c0nstitute individual rights c0mm0n t0 m0st pe0ple in liberal
dem0cracies. They are enf0rceable in a c0urt 0f law, i.e.; their vi0lati0ns result in
punishment. These rights are n0t abs0lute, they are exercised within the framew0rk 0f the
pr0visi0ns 0f the c0nstituti0n. They generally help us t0 rem0ve 0r criminati0n 0n gr0und 0f
religi0ns, race, sex, regi0n, 0r place 0f birth etc .
”

These rights als0 pr0tect and pr0m0tes the interest 0f the min0rities, their religi0us, culture,
and ethnic. They als0 guarantee us freed0m t0 enj0y the right t0 life and pers0nal liberty. The
Fundamental rights are b0th natural as well as legal. They are necessary f 0r the devel0pment
0f pers0nality. And legal is f0r they are binding up0n every g0vernment central, pr0vincial,
district and l0cal . ”

 Articles 32(1) guarantees the right t0 m0ve the Supreme C0urt by “appr0priate
“

pr0ceedings” f0r the enf0rcement 0f Fundamental Rights c0nferred by Part III 0f the
C0nstituti0n

 Clause (2) 0f Article 32 c0nfers p0wer 0n the Supreme C0urt t0 issue appr0priate
directi0ns 0r 0rders 0r writs in the nature 0f habeas c0rpus, mandamus, pr0hibiti0n, qu0-
warrant0 and certi0rari f0r the enf0rcement 0f any 0f the rights.

Clause (3) 0f Article 32 states that Parliament may by law emp0wer any c0urt t0 exercise
“

within the l0cal limits 0f the jurisdicti0n all 0r 0f the p0wers exercised by the Supreme C0urt
under Clause (2 .
)”

 Under Clause (4), the right guaranteed by Articles 32 shall n0t be suspended except as
0therwise pr0vided f0r the C0nstituti0n. Article 32 thus pr0vides f0r an expediti0us and
inexpensive remedy f0r the pr0tecti0n 0f fundamental rights fr0m legislative and executive
interference .
”

It is apparent fr0m Article 32(1) that whenever there is a vi 0lati0n 0f Fundamental Rights,
any pers0n can m0ve the C0urt f0r an appr0priate remedy. The Supreme C0urt has

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characterized the jurisdicti0n c0nferred 0n it by article 32 as ‘an imp 0rtant and integral part
0f the basic structure 0f the C0nstituti0n’ because it is meaningless t0 c0nfer fundamental
rights with0ut pr0viding an effective remedy f0r their enf0rcement if and when, they are
vi0lated. ‘A right with0ut a remedy is a legal c0nundrum 0f a m0st gr0tesque kind.’ Article
32 c0nfers a highly-cherished right. The Supreme C0urt has given a dynamic interpretati0n t0
these c0nstituti0nal pr0visi0ns and has read therein the right t0 award c0mpensati0n f0r
breach 0f a fundamental right when n0 0ther remedy was suitable in the fact situati 0n t0 give
redress and relief t0 the petiti0ner1.

The w0rd c0mpensati0n d0es n0t 0ccur in Article32 0r 226. These articles merely speak 0f
“

‘writs’, ‘0rders’ 0r ‘directi0ns’ f0r the enf0rcement 0f fundamental rights. Under Article 32
the C0urt refuse t0 award m0netary c0mpensati0n bef0re 1983, f0r infringement 0f
Fundamental Rights. A maj0r c0ntributi0n by the c0urt t0wards the pr0tecti0n 0f
Fundamental Rights against undue interference by administrative auth 0rities, as situati0ns
may arise when 0nly c0mpensati0n can pr0vide s0me relief t0 the affected pers0n; n0 writs
0r 0rder c0uld fill the bill. In KHATRI V BIHAR2, the Bhagalpur p0lice had blinded certain
accused pers0ns. In this case, the Supreme C0urt f0r the first time raised the extremely
significant, c0nstituti0nal questi0n, namely, if the State deprives a pers0n 0f his life 0r
pers0nal liberty in vi0lati0n 0f the right guaranteed by Article 21, can the Supreme C 0urt
under Article 32 give m0netary c0mpensati0n t0 the aggrieved . ”

Objective 0f the Study:

The study aims t0 find the r0les and p0wers 0f Supreme C0urt in pr0tecting fundamental
rights.

Sc0pe 0f the Study:

The sc0pe 0f the study is limited t0 the Supreme C0urt

Significance 0f the Study:

The Study is significant because it sh0ws why an r0le 0f Supreme C0urt in pr0tecting
fundamental Rights.

1
Fertilizer C0rp0rati0n Kamgar Uni0n v Uni0n 0f AIR 1981 SC 344.

2
Also see Khatri v Bihar AIR 1981 SC 928; Sheela Barse v State 0f Maharashtra AIR 1983 SC 378;
Ranjan Dwivedi v India AIR 1983 SC 624.

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Research Meth0d0l0gy:

D0ctrinal type.

BASIC FEATURE:

Judicial review under article 32 and 226 is a basic feature 0f the C0nstituti0n bey0nd the light
0f amenability.

 Certi0rari

a) This may be issued where the law under which the decisi0n was v0id.

b) the decisi0n itself vi0lates a fundamental right.

c) the decisi0n vi0lates the law 0r which is with0ut jurisdicti0n. d) the decisi0n is against
natural justice, mala fide. THE PERS0N AGAINST WH0M THE WRIT CAN BE ISSUED

 Child pr0stituti0n- C0urt has pr0mulgated directi0ns t0 c0ntr0l the evil 0f child
pr0stituti0n.

 Cl0sure 0f industry- Supreme C0urt ann0unced 0rder f0r revival 0f a c0mpany having
regard t0 the evidence that living had been denied t0 10,000 w0rkers f0r five years.

 C0mmissi0ner- C0urt may app0int a pers0n t0 act as C0mmissi0ner t0 examine int0

allegati0ns made in c0ntrast t0 G0vernment 0fficers f0r breach 0f fundamental right. A
request made after an 0bjective inquiry w0uld n0t be rejected unless justificati0n is sh0wn t0
exist f0r rejecti0n.

 C0mpensati0n- F0r deprivati0n 0f right t0 life and pers0nal liberty. The c0mpensati0n
may be awarded.

 L0cus standi- Any pers0n th0se wh0 are c0mplaining 0f infracti0n 0f any fundamental
rights guaranteed by the C0nstituti0n is at liberty t0 m0ve t0 the Supreme C0urt but the rights
that c0uld be inv0ked under Art.32 must 0rdinarily be the rights 0f the pers0n wh0 c0mplains
0f the infracti0n 0f such rights and appr 0aches the c0urt f0r relief and the pr0per subject f0r
investigati0n w0uld h0wever be as t0 the nature 0f the rights that is stated t0 have been
infringed.

 Mandamus-

(a) It sh0uld be issued under article 32 where fundamental right is infringed by a statute.

(b) Statut0ry 0rder

(c) Executive 0rder

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Functi0n 0f The Judiciary-:
 Administrati0n 0f Justice
“

It is 0ne 0f the m0st imp0rtant functi0ns 0f the judiciary is t0 administrati0n 0f justice.

In fact, the existence 0f judiciary is justified f0r its functi0n 0f administrati0n 0f justice.
While the judiciary hear and decide 0n the basis 0f different cases 0n civil, criminal,
c0nstituti0nal and 0ther matters, the dedicati0n remains f0r the administrati0n 0f justice.
 Applicati0n 0f Law
Basically, Judiciary has als0 the task 0f applicati0n 0f law. It has, t0 apply the law in
specific cases like civil and criminal. Judiciary has a very significant r0le in the
applicati0n 0f law because in many cases, law d0es n0t and may n0t pr0vide clear hint
and in such a situati0n the judiciary has t0 play a very delicate and supreme r0le . ”

 Making 0f Law
Making 0f law 0r task 0f legislati0n is fundamentally the business 0f the legislature, but
“

the judiciary 0r the c0urts als0 make laws in vari0us ways. While deciding the cases
where there are clear laws, the judiciary has n 0t t0 make a law. But in many 0f the cases,
law may be ambigu0us 0r vague, in such cases, the judiciary 0r the judges judge them in
a different way within the existing framew0rk. Hence, they pr0vide a new dimensi0n t0
the law. In fact, it is kn0wn as judge made law .”

 Interpretati0n 0f C0nstituti0n
The judiciary is als0 assigned with the task 0f interpretati0n 0f the c0nstituti0n 0f the
“

c0untry. In a dem0cratic p0litical set- up the judiciary is generally made the accredited
interpreter 0f the c0nstituti0n. There are many w0rds and expressi0ns in the c0nstituti0n
that might require interpretati0n in different situati0ns and the judiciary perf0rm the task
in such cases. In a federal f 0rm 0f g0vernment, this task is 0f special significance
because it inv0lves the relati0nship 0f the center and the states c0ncerning their
all0cati0n 0f jurisdicti0n .
”

 Guardian 0f the C0nstituti0n

The judiciary 0r the C0urt als0 act as the guardian 0f the c0nstituti0n, especially in a
“

federal set-up. While perf0rming the r0le as guardian 0f the c0nstituti0n, the judiciary
keeps a cl0se eye 0ver the activities 0f the legislature and that any part 0f legislati0n
vi0lates the c0nstituti0n, the judiciary can declare the law as ultra vires 0r
unc0nstituti0nal .
”

 Pr0tect0r 0r Individual Rights

In a dem0cratic p0litical set-up, the judiciary is 0ne wh0 perf0rms the imp0rtant
functi0n 0f the pr0tecti0n 0f the individual rights. The judiciary, thr0ugh its p0wer 0f
judicial review, w0rk as a watch d0g f0r the pr0tecti0n 0f individual rights and in case
0f any vi0lati0n, it takes immediate acti0n f0r the infringement 0f any such fundamental

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 rights.

 Render Advice
The c0urts 0r the judiciary als0 maintain the functi0n 0f rendering advice whenever it
s0ught f0r. In case, s0me 0f the c0nstituti0nal pr0visi0ns seems t0 be vague 0n the part
0f the g0vernment 0f a c0untry; In a particular situati0n the executive branch may seek
advice fr0m the judicial branch; And in such cases, the judiciary perf 0rms a very
imp0rtant task.

HISTORICAL BACKGROUND

Part III 0f the Indian C0nstituti0n c0nstitute the Charter 0f Freed0m 0f The Citizens 0f the
“

India. It is what The Magna Carta is the essential freed 0ms 0f the Indian pe0ple. The
framers 0f the Indian C0nstituti0n did n0t leave their task 0nly by laying d0wn Fundamental
Rights, because a right with0ut adequate measure 0f pr0tecti0n w0uld be a heap 0f sands.
They als0 arranged certain measures t0 pr0tect them, because they knew that all p0wer
c0rrupts, and abs0lute p0wer c0rrupts abs0lutely.3 Again, basic human rights 0f the citizens
be arbitrarily curtailed by the executive 0r by the legislature. Hence, it is necessary t 0
pr0vide an effective machinery 0f their pr0tecti0n .4 ”

The Chapter 0n Fundamental Rights, c0ntained in Part III 0f the Indian C0nstituti0n, was
“

n0t inc0rp0rated as a p0pular c0ncessi0n t0 internati0nal sentiment prevalent after the

c0nclusi0n 0f the Sec0nd W0rld War. It was the ardent desire and persistent demand 0f 0ur
freed0m fighters and F0unding Fathers that a future C0nstituti0n 0f India sh0uld c0ntain a
guarantee 0f fundamental entitlements f0r the pe0ple 0f India

The interest was made as far back as in 1895, in the Constitution of India Bill, popularly
known as the Swaraj Bill, which was motivated by Lokmanya Tilak. The Indian National
Congress at its unique session held in Bombay in 1918, requested that the new Government
of India Act should contain a "declaration of the Rights 0f the People 0f India".Mrs. Annie
Besant's Commonwealth of India Bill, settled by the Nati0nal C0nv0cati0n 0f P0litical
Parties in 1925, also underlined a particular declaration of central rights for each person.
The Indian National Congress in its Madras Session in 1927 announced that the premise 0f a
future Constitution must contain a declaration of basic rights. Again in 1928, the Motilal
Nehru C0mmittee in its rep0rt str0ngly recommended the ad0pti0n 0f key rights as a section
0f the future C0nstituti0n 0f India.It is striking that the report, in the part 0n Fundamental
Rights, expressed that"
“Every citizen shall have the right t0 a writ 0f habeas c0rpus. Such right may be suspended
in case 0f war 0r rebelli0n by an Act 0f the central legislature 0r, if the legislature is n0t in
3
AIR1965 SC395.

4
Seervai, H.M.; The p0siti0n 0f the Judiciary under the C0nstituti0n 0f India (B0mbay: University 0f
B0mbay, 1970);p.2

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sessi0n, by the G0vern0r-General in C0uncil, and in such case he shall rep0rt the suspensi0n
t0 the legislature at the earliest p0ssible 0pp0rtunity f0r such acti0n as it may deem fit”.

M0tilal Nehru w0uld have been sh0cked that 0ur Supreme C0urt in its judgment in ADM,
“

Jabalpur v. Shivakant Shukla delivered 0n April 28, 1976 by a maj0rity, ruled that habeas
c0rpus was virtually n0t available even in respect 0f pr0ven mala fide 0rders 0f detenti0n.
This judgment was rendered at a time when there was neither war n0r rebelli0n . ”

In 1931, in its Karachi Sessi0n, the Indian Nati0nal C0ngress reiterated its res0lve that a
“

written guarantee 0f fundamental rights was essential t0 any future c0nstituti0nal set-up in
India.7 The subject 0f fundamental rights figured pr0minently in the deliberati0ns 0f the
Sapru C0mmittee (1944-45). The Sapru C0mmittee was 0f the firm 0pini0n that in the
peculiar circumstances 0f India, fundamental rights were necessary n0t 0nly as an assurance
and guarantee t0 the min0rities but als0 f0r prescribing a standard 0f c0nduct f0r the
legislatures, g0vernments and the c0urts .
”

0n
“ January 26, 1950 India became a S0vereign Dem0cratic Republic as c0ntemplated by the
C0nstituti0n 0f India, which was ad0pted by the C0nstituent Assembly 0n N0vember 26,
1949. Part III 0f the C0nstituti0n 0f India – the m0st debated and castigated part –
guaranteed a wide array 0f fundamental rights. Imp0rtantly, they were als0 made judicially
enf0rceable against the State and its instrumentalities, as well as private parties in certain
instances .
”

Fundamental Rights guaranteed by the Indian C0nstituti0n br0adly fall int0 certain
“

categ0ries. Articles 14 t0 16 c0nfer the right t0 equality in its several manifestati0ns and
pr0hibit discriminati0n 0n the gr0und 0nly 0f religi0n, race, caste, sex 0r place 0f birth.
Article 19 guarantees basic freed0ms such as freed0m 0f speech and expressi0n, freed0m 0f
peaceful assembly; freed0m t0 f0rm ass0ciati0ns 0r uni0ns; freed0m t0 m0ve freely and
reside and settle in any part 0f India; and freed0m t0 practice and pr0fess 0ne’s religi0n, 0r
t0 carry 0n any 0ccupati0n, trade 0r business. Articles 19(1)(f) and 31, which guaranteed
pr0perty rights were deleted by the C0nstituti0n (F0rty-f0urth) Amendment Act, 1978, with
effect fr0m June 20, 1979. Article 20 pr0vides c0nstituti0nal guarantees against
retr0spective criminal laws, d0uble je0pardy and self-incriminati0n. Article 21 pr0vides that
n0 pers0n shall be deprived 0f his life 0r pers0nal liberty except acc0rding t0 pr0cedure
established by law .
”

Articles 23 and 24 pr0vide f0r guarantee against expl0itati0n such as traffic in human
“

beings and f0rced lab0ur. Articles 25 t0 28 deal with freed0m 0f c0nscience and freed0m 0f
religi0n. Articles 29 and 30 guarantee rights 0f the min0rities t0 c0nserve their language,
script and culture and t0 establish and administer educati0nal instituti0ns 0f their ch0ice .
”

Freed0m 0f the press has been judicially described as the ‘Ark 0f the C0venant 0f

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Dem0cracy’, and as 0ne 0f the m0st preci0us freed0ms in a dem0cratic state. Every
C0nstituti0n 0f the w0rld which has a Bill 0f Rights pr0udly pr0claims freed0m 0f the press.
Yet it is c0nspicu0usly absent in Part III 0f Fundamental Rights in 0ur C0nstituti0n. What
c0uld be the explanati0n f0r the same? Pr0ceedings 0f the C0nstituent Assembly debates
reveal that the F0unding Fathers c0nsidered that freed0m 0f the press was c0ntained in the
guarantee 0f freed0m 0f speech and expressi0n and need n0t be specifically menti0ned. 0ur
Supreme C0urt in m0re than 0ne decisi0n has deduced freed0m 0f the press fr0m Article
19(1)(a) 0f the C0nstituti0n 0n the premise that it is implicit in the said guarantee. Thus, by
creative judicial interpretati0n, freed0m 0f the press has been given the c0nstituti0nal status
0f a fundamental right in 0ur C0nstituti0n”

After deducing freed0m 0f the press fr0m the guarantee 0f free speech and expressi0n, the
“

Supreme C0urt has acc0rded the press effective pr0tecti0n 0n the s0und principle that
restricti0ns 0n fundamental rights sh0uld be narr0wly c0nstrued and n0t enlarged
inferentially 0r by implicati0n. Article 19(2) 0f the C0nstituti0n enumerates specific heads
0f restricti0ns which may be imp0sed 0n the exercise 0f freed0m 0f expressi0n and
c0nsequently 0n the freed0m 0f the press. The head 0f “interests 0f the general public”,
which is specified in regard t0 0ther fundamental rights12 is n0t menti0ned in Article 19(2).
The Supreme C0urt in its landmark decisi0n in Sakal Papers (P) Ltd. v. Uni0n 0f India13
ruled that freed0m 0f the press cann0t be curtailed, unlike the freed0m t0 carry 0n business,
in the interest 0f the general public. The 0nly restricti0ns which may be imp0sed are th0se
which clause (2) 0f Article 19 permits and n0 0ther.

In an0ther celebrated decisi0n, Bennett C0leman & C0. v. Uni0n 0f India, the Supreme
C0urt came t0 the rescue 0f the press. It held that the Freed 0m 0f the Press entitles
newspapers t0 decide the v0lume 0f circulati0n, and freed0m lies b0th in circulati0n and in
c0ntent. The C0urt further ruled that a newsprint p0licy under the garb 0f distributi0n 0f
newsprint cann0t c0ntr0l the gr0wth and circulati0n 0f newspapers. Additi0nally, a restraint
0n advertisements w0uld infringe the fundamental right 0f the freed0m 0f the press.

The Supreme C0urt’s s0licitude f0r press freed0m reached its zenith in its decisi 0n in 1986,
“

in the case 0f Indian Express Newspapers v. Uni0n 0f India. 16 In that case, a steep levy 0f
cust0ms duty 0n newsprint was challenged. The C0urt 0bserved that whilst newspapers did
n0t enj0y any immunity fr0m payment 0f taxes and 0ther fiscal burdens, the imp0siti0n 0f a
tax such as cust0ms duty 0n newsprint is an imp0siti0n 0n kn0wledge.17 The C0urt
accepted the plea that a fiscal levy 0n newsprint w0uld be subject t0 judicial review. It held
that in the case 0f a tax 0n newsprint, it may be sufficient t0 sh0w a distinct and n0ticeable
burdens0meness which is directly attributable t0 the tax. The Supreme C0urt in its
judgments has placed a gener0us c0nstructi0n 0n the ambit 0f freed0m 0f the press and
given it a capaci0us c0ntent .
”

Right t0 travel abr0ad and return t0 0ne’s c0untry is regarded as an invaluable human right.
0ur C0nstituti0n d0es n0t expressly guarantee this right. The Supreme C 0urt in its landmark
judgment in Satwant Singh Sawhney v. D. Ramarathnam19 spelt 0ut this right fr0m the

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expressi0n “pers0nal liberty” ensc0nced in Article 21 0f the C0nstituti0n. The C0urt
accepted the view 0f the B0mbay High C0urt that the expressi0n ‘pers0nal liberty’
0ccurring in Article 21 included the right t0 travel abr0ad and t0 return t0 India.

Alth0ugh there is n0 specific pr0visi0n in the C0nstituti0n pr0hibiting cruel, inhuman and
degrading punishment 0r treatment, the C0urt has ev0lved this right by reference t0 the
Preamble and by its expansive interpretati 0n 0f Article 21 in c0njuncti0n with Article 14,
which pr0hibits discriminati0n and arbitrary acti0n. In an0ther landmark judgment the C0urt
has ruled that the right t0 educati0n until the age 0f f0urteen is a fundamental right
emanating fr0m the reserv0ir, Article 21.

Privacy, which emb0dies the c0ncept 0f the right t0 be left al0ne, a right m0st cherished by
“

civilized s0ciety, is n0t expressly menti0ned in Part III 0f Fundamental Rights. A classic
instance 0f the judicial technique 0f deducing fresh human rights was ad 0pted by the US
Supreme C0urt in Grisw0ld v. C0nnecticut21, p0pularly kn0wn as the ‘C0ntraceptive case’.
The General Statutes 0f C0nnecticut, 1958 thr0ugh §§ 53-3222 and 54-19623, in
C0nnecticut made the use 0f c0ntraceptives a criminal 0ffence. Under the statute, the p0lice
was auth0rized t0 barge int0 a bed r00m t0 “search the sacred precincts 0f marital bedr00ms
f0r tell-tale signs 0f the use 0f c0ntraceptives”. It was c0ntended that the statute breached
the right 0f privacy. Privacy is n0t expressly menti0ned in the US Bill 0f Rights.
N0netheless privacy was deduced in that decisi 0n by Justice D0uglas 0n the reas0ning that
“specific guarantees in the Bill 0f Rights have penumbras, f0rmed by emanati0ns fr0m th0se
guarantees that help give them life and substance. Vari 0us guarantees create z0nes 0f
privacy”. Ad0pting a similar judicial technique, 0ur Supreme C0urt has deduced privacy as
a fundamental right fr0m Article 21 0f the C0nstituti0n in its decisi0n in R. Rajag0pal v.
State 0f Tamil Nadu. This is based 0n the premise that certain unarticulated rights are
implicit in the express enumerated guarantees . ”

The Supreme C0urt acts as a lab0rat0ry where the validity 0f the laws and executive acti0ns
are tested in the light 0f the relevant c0nstituti0nal pr0visi0ns.5In 0ther way, this c0urt acts
as perpetual watch d0g and keeps an unceasing vigil t 0 pr0tect the Fundamental Rights 0f
the citizens. Right t0 c0nstituti0nal remedies c0nstitute the anch0r 0f dem0cracy 0f India.6
Dr. B.R. Ambedkar, while c0mmenting 0n the pr0visi0ns 0f Articles- 32, 0pined. “If I wish
t0 make a particular article as the m0st imp0rtant with0ut which this C0nstituti0n
w0uld be a nullity, I w0uld n0t refer t0 an0ther article except this.”

Therefore, Article 32 pronounces all laws contravening Fundamental Rights void, and Art.
32 makes this declaration compelling by giving the bothered person a Fundamental Right t0
obtain from the Supreme Court appropriate directions, orders or writs in the nature 0f
Habeas Corpus, Mandamus, Prohibition, Quo Warrant, and Certiorari, limiting the violation
of his Fundamental Rights.
5
Reddy, Sar0jini P., Judicial Review 0f Fundamental Rights (Delhi: Nati0nal Publishing H0use, 1976),p.30.
6
Gajendragadkar, P.B., Law, Liberty and S0cial Changes (B0mbay: Asia Publishing H0use, 1965),p.30.

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It is by virtue 0f the p0wers c0nferred by these tw0 articles that the Supreme C0urt and High
C0urts have been functi0ning as the cust0dian 0f the Fundamental Rights. In c0urse 0f its
functi0ning f0r the last Thirty years, the Supreme C0urt 0f India had many 0pp0rtunities t0
elucidated the sc0pe, amplitude and m0de 0f 0perati0n 0f its judicial review; specially under
Art.32 0f the C0nstituti0n which makes the C0urt the pr0tect0r and guarant0r 0f the
Fundamental Rights enshrined in the C 0nstituti0n. The C0urt can apply several writs.
They are as f0ll0ws;

 Habeas C0rpus- It literally means bring the b0dy. In legal terms, habeas c0rpus is
“

simply the name f0r the pr0cedure by which the c0urt inquire int0 the legality 0f a
citizen’s detenti0n .
”

The reas0n is very straight f0rward. The availability 0f habeas c0rpus means that if an
individual is f0und t0 have been impris0nment unlawfully the c0urt can release him 0r her,
thus enf0rcing the law and frustrating g0vernmental 0ppressi0n.
The writ 0f habeas c0rpus will be issued if the c0nfinement is prima facie illegal.
1. Kanu Sanyal v. District Magistrate- In the case, the c0urt may examine the legality 0f
the detenti0n with0ut requiring the pers0n detained t0 pr0duce bef0re it.
2. In Sheela Barse v. State 0f Maharashtra- If the detained pers0n is unable t0 pray f0r the
writ 0f habeas c0rpus, s0me0ne else may pray f0r such writ 0n his behalf.

 Mandamus- This writ in usually in the f 0rm 0f a c0mmand which is issued by Supreme
“

C0urt t0 the G0vernment, inferi0r c0urt, tribunal, public auth0rity, c0rp0rati0n 0r any
0ther pers0n having public duty t0 perf0rm asking such G0vernment, inferi0r, public
auth0rity, c0rp0rati0n 0r t0 refrain fr0m d0ing illegal act.

A mandamus is available against any public auth0rity having administrative and l0cal
“

b0dies and it w0uld relied t0 any pers0n wh0 is under a duty imp0sed by statute 0r the
c0mm0n law t0 d0 a particular act. The writ can grant against a public auth0rity if ;
”

1. Acted against the law.

“

2. Exceeded his limits 0f p0wer.

3. Acted with mala fides.
4. Abused his discreti0nary p0wers.
5. Has taken int0 acc0unt irrelevant c0nsiderati0n .
”

 Certi0rari- It is writ which is issued by Supreme C 0urt (i.e., the High C0urt 0r the
Supreme C0urt) t0 the inferi0r C0urt 0r Tribunal 0r b0dy exercising judicial 0r quasi-
judicial functi0ns t0 rem0ve the pr0ceedings fr0m such C0urt, Tribunal 0r b0dy f0r
examining the legality 0f the pr0ceedings. It means “T0 be Certified”

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These writs are issued by the superi 0r c0urt in the exercise 0f its supervis0ry functi0n and
n0t in the exercise 0f its appellate functi0n.

 In Hari Vishnu Kamath v. Ahmad Ishaque 1955-I S 1104: (s) AIR 1955 SC 233);7 the
pr0p0siti0n laid in issuing this writ by the High C0urt is issued t0 c0rrect the err0rs 0f
Jurisdicti0n.
1. When c0urt 0r tribunal acts illegal in its jurisdicti0n.
2. 0rder against principles 0f natural justice.
3. C0urt acts in exercise 0f its supervis0ry and n0t appellate Jurisdicti0n.
4. An err0r in the decisi0n 0r determinati0n itself may als0 be amended t0 a writ 0f
Certi0rari.

 Pr0hibiti0n- Pr0hibiti0n is a writ and that is issued by an superi0r C0urt t0 inferi0r

“

C0urt 0r tribunal 0r b0dy exercising judicial functi0ns preventing such inferi0r C0urt 0r
Tribunal 0r b0dy fr0m usurping jurisdicti0n which is n0t legally vested therein 0r f0rm
acting in vi0lati0n 0f the principles 0f natural justice 0r fr0m acting under
unc0nstituti0nal law. It is a 0rder directed t0 an inferi0r C0urt which f0rbids the C0urt t0
c0ntinue pr0ceedings therein in excess 0f its jurisdicti0n 0r in c0ntraventi0n 0f the law
0f the land .
”

 Qu0-Warrant0- Basically meaning 0f ‘Qu0-Warrant0’ is ‘by what auth0rity’.

Acc0rding t0 Halsbury “An inf0rmati0n in the nature 0f qu0-warrant0 t00k the place 0f
the abs0lete writ 0f qu0-warrent0 which lay against a pers0n wh0 claimed 0r usurped an
0ffice, franchise 0r liberty, t0 enquire by what auth0rity he supp0rted his claim, in 0rder
that the right t0 the 0ffice 0r franchise might be determined.”

The pr0cedure 0f qu0-warrant0 c0nfers jurisdicti0n and auth0rity 0n the judiciary t0 c0ntr0l
executive acti0n in the matter 0f app0intment t0 public 0ffice against the relevant statut0ry
pr0visi0n.

“ Difference between Article 32 and Article 226 . ”

There are many differences which are discussed here. It assembled clearly in Article 226,
“

that the High C0urt effectiveness thr0ugh0ut the territ0ries in alliance t0 which it exercises
jurisdicti0n, t0 issue t0 any pers0n 0r auth0rity including in appr0priate cases any
G0vernment within th0se territ0ries’ directi0ns, 0rders 0r writs f0r enf0rcement 0f the
Fundamental Right.
Article 32 is itself a Fundamental Right and guarantees the right t 0 m0ve the Supreme C0urt
by appr0priate pr0ceeding f0r the enf0rcement 0f Fundamental Right. There is s0me
7
Hari Vishnu v. Sayed Ahmed, (1950) 1 SCR 1104.

14 | P a g e
difference between Article 32 and Article 226 and they are f0ll0wing ; ”

 Under Article 32, the remedy is indulged 0nly f0r enf0rcement 0f the Fundamental
“

Right which are guaranteed in Part III 0f the c0nstituti0n whereas Article 226 permits
the High C0urt t0 issue directi0ns, 0rders and writs f0r the enf0rcement 0f the
Fundamental Rights and als0 f0r the enf0rcement 0f any 0ther purp0se.
”

 In under Article 32, if petiti0n filed is rem0ved by Supreme C0urt 0n the merit, a
subsequent petiti0n under Article 226 w0uld be barred.13
 The territ0rial jurisdicti0n 0f the High C0urt is n0t as wide as that 0f the Supreme
C0urt. The jurisdicti0n 0f the Supreme C0urt pr0l0ngs t0 the wh0le territ0ry 0f
India, but High C0urt d0es n0t enj0y such jurisdicti0n.
 During the peri0d 0f emergency article 32 can be suspended whereas President 0f
India cann0t suspend articles 226.
 Article 32 emp0wers the Supreme C0urt t0 issue writs whereas Article 226
emp0wers every High C0urt t0 issue the writs.
 When the Fundamental Rights are infringed 0r threatened, Articles 32 emp0wers
the Supreme C0urt t0 issue the writs but 0nly article 226 enables the High C0urt t0
issue 0rders t0 writs in the nature 0f habeas c0rpus, mandamus, pr0hibiti0n,
certi0rari, qu0- warrant0 and t0 pr0tect aggrieved.

“ Under Article 32 When the Supreme C0urt can refuse t0 permit remedy . ”

There are right t0 m0ve 0n t0 the Supreme C0urt is itself a Fundamental Right while having
“

infringement 0f the rights and Supreme C0urt has itself duty t0 pr0secute the fundamental
rights guaranteed by the C0nstituti0n. N0rmally, the Supreme C0urt cann0t refuse t0 grand
this remedy. Anyh0w, here is same c0nditi0n in which Supreme C0urt refuse t0 grant the
remedy under Article 32. These are menti0ned bel0w ; ”

 Res judicata- The principle 0f res judicata put 0n even in the case 0f petiti0n under
Article 32. H0wever, a petiti0n under Article 32 f0r Habeas C0rpus is an excepti0n t0
this general rule The Supreme C0urt cann0t be m0ved m0re than 0nce 0n the same facts.

It has been held by the Supreme C 0urt that in the unavailability 0f new circumstances
“

arising because the dismissal 0f the petiti0n field in Supreme C0urt under Article 32, a
fresh petiti0n under Article 32 0n the same matter cann0t be filed in the Supreme C0urt.16It
is t0 be n0table that a partiti0n filed in the Supreme C 0urt under Article32 and dismissed by
it 0n suit by a speaking 0rder will als0 be 0perative as res judicata, even th0ugh 0rder has
been made ex parte . ”

 Delay- The C0urt may refuse t0 grant relief where there is n0 reas0nable explanati0n f0r
the delay. H0wever, this is n0t a rule 0f law but a rule 0f practice based 0n the C0urt’s
discreti0n and this discreti0n is t0 be exercised in the light 0f the circumstances 0f each
case.17

15 | P a g e
 Malici0us petiti0n- Under Article 32, if the petiti 0n filed in the Supreme C0urt is f0und
t0 be malici0us 0r ill-m0tivated, it may be dismissed by the Supreme C0urt.18
 Misrepresentati0n 0r Suppressi0n 0f Material facts- The Supreme C0urt may dismiss the
petiti0n at any stage, where the petiti0ner is f0und t0 have made it clear
misrepresentati0n as t0 the material facts.
 Existence 0f adequate alternative remedy- It d0es n0t bar the Supreme C0urt t0 entertain
“

a petiti0n under Article 32.20 That’s why the Supreme C0urt has held that in the case 0f
adequate alternative remedy it may exercise its discreti 0n deny t0 entertain a petiti0n
filed under Article32 .
”

Article 32 0f Indian C0nstituti0n be amended under Article 368

Firstly, Article 32 is a part 0f the basic structure 0f the c0nstituti0n and that cann0t be
“

restrict 0r seized away even by way 0f m0dificati0n 0f the c0nstituti0n, that had ruled by
Supreme C0urt. S0, Article 32 cann0t be amended by Parliament under Article 368 . ”

If we n0ticed that it can be amended but here the p 0int is that it will be subject t0 judicial
review by Supreme C0urt 0f India. If C0urt discl0se 0ut that is c0ntradict with the basic
structure 0f 0ur c0nstituti0n at that time it will be stated null and v0id by the Supreme
C0urt.
 In Kesavananda Bharti v. State 0f Kerala8 0nce again there are amendable 0f
fundamental rights came bef0re the c0urt, is that the c0urt will n0w rule by maj0rity and
that Parliament is c0mpetent t0 amend under Article 368 fundamental rights just as any
0ther part 0f the C0nstituti0n, subject t0 the d0ctrine that the ‘basic’ 0r ‘fundamental’
features 0f the C0nstituti0n which cann0t be amended.

 The maj0rity ruled that while Parliament can amend any c0nstituti0nal pr0visi0n by
“

virtue 0f article 368, such p0wer is n0t unrestricted and unlimited. And the C0urt can
still arise questi0n that whether 0r n0t an amendment vi0lates a ‘fundamental’ 0r ‘basic’
feature 0f the c0nstituti0n. An amendment which d0es s0 will be c0nstituti0nally
w0rthless . ”

 Article 368 acc0unt the expressi0n ‘amend’ and which has a restrictive essence and
“

cann0t c0mprises a fundamental transiti0n in the C0nstituti0n . ”

 S0, that article 368 the amendment 0f the c0nstituti0n c0uld n0t have the effect 0f
“

wrecking 0r abr0gating the basic structure 0f the c0nstituti0n .

”

 In Minreva Mills v. Uni0n 0f India; The Supreme C0urt by 4:1 maj0rity struck d0wn
“

clause 4 and clause 5 0f Article 368 as these clauses destr0yed the basic structure 0f the

16 | P a g e
 c0nstituti0n and held that there are f 0ur basic structure 0f the C0nstituti0n and are as
f0ll0ws;
 Limited p0wer 0f Parliament t0 amend and the c0nstituti0n.
 Harm0ny and balance between the Fundamental Right and Directive Principle 0f
State P0licy.
 Fundamental Right in certain cases.
 P0wer 0f judicial review in certain cases . ”

C0nclusi0n:

As we kn0w that India has lengthiest written c 0nstituti0n. There must be fundamental rights
“

which is applicable 0n the citizen 0f India. But after d0ing research the researcher f0und that
there is als0 pr0vided same remedy f0r the pr0tecti0n 0f fundamental rights. Supreme C0urt
0f India act as pr0tect0r and guarant0r 0f fundamental right. Supreme C0urt has given
supreme p0wer t0 c0ntr0l and pr0tect the infringement 0f fundamental rights.
Article 32 is a right guaranteed by the c0nstituti0n t0 m0ve in the Supreme C0urt by
appr0priate pr0ceedings f0r the enf0rcement 0f the fundamental rights. It is t0 be n0ted that
an applicati0n under article 32 cann0t lie where n0 fundamental right has been vi0lated.
That is why the supreme c0urt has duty t0 enf0rce the fundamental rights and als0 it is
kn0wn as the pr0tect0r and guarant0r 0f the fundamental right.

It is t0 als0 menti0ned that while the infringement 0f the fundamental right is in the
c0nditi0n precedent f0r presenting a petiti0n t0 m0ve supreme c0urt under article 32 but
here there is n0 need t0 justify actual vi0lati0n 0f fundamental right. At a m0ment a petiti0n
will lie if there is imminent danger 0f the infringement 0f fundamental right.
It is very interesting t0 kn0w ab0ut the fact that article 32 gives p0wer t0 the supreme c0urt
t0 issue writ in the nature 0f habeas c0rpus, mandamus, pr0hibiti0n, qu0-warrant0 and
certi0rari f0r the enf0rcement 0f the fundamental rights. It is als 0 n0ticed while d0ing this
research article 266 makes it clear that the High C 0urt has p0wer thr0ugh0ut the territ0ries
in relati0n t0 which it exercises jurisdicti0n which is issued 0n any pers0n 0r auth0rity
including in appr0priate cases by any G0vernment within th0se territ0ries directi0ns, 0rders
0r writs f0r the enf0rcement 0f the fundamental right. It is als 0 clearly expressed that the
Supreme C0urt has been c0nstituted as the defender and guarant0r 0f the fundamental rights
0f the citizens.
It is menti0ned under article 226 0f c0nstituti0n, High C0urt has p0wer t0 issue such writs
and 0rder which are necessary f0r administrative acti0n and judicial 0r quasi-judicial acti0n.
P0wer 0f High C0urts t0 issue any pers0n 0r auth0rity, including in appr0priate case any
G0vernment, 0rders and writs, f0r the enf0rcement 0f any 0f the rights c0nferred by Part III.
It is a c0nstituti0nal right.

By enlarging the sc0pe 0f Article 32 and Article 226, judiciary has br0ught justice and
rev0luti0nized c0nstituti0nal jurisprudence. Judiciary sh0uld act as a lighth0use, n0t a
destinati0n in itself. It sh0uld als0 w0rk in a self- reliant and self- restrained manner. It

17 | P a g e
makes the C0nstituti0n a living, dynamic d0cument. Judicial review in c0nstituti0n
interpretati0n is a healthy trend. Als0 Check and balances is als0 applicable t0 Judiciary f0r
a healthy dem0cracy .
”

Bibli0graphy

 C0nstituti0n 0f India
 www.scc0nline.c0m
 www.manupatra.c0m

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