THE ICFAI UNIVERSITY, JAIPUR

SESSION: 2021-2026

LEGAL INTERNSHIP PROGRAM

PROJECT REPORT
May – july 2023

1
 “supreme court as a guardian of fundamental
rights: a comment”

Project Report Submitted By

Anjali meena
Ballb(hons)
Batch 2021-26

Under Supervision of

Ms. Ameesha Singh

Academic Coordinator & Assistant Professor

Legal internship program

May – july 2023

THE ICFAI UNIVERSITY, JAIPUR

SESSION: 2021-2026

2
 ACKNOWLEDGEMENT

It is a matter of great pleasure for me to submit this project report on “Supreme court as a

guardian of fundamental rights :- a comment” at ICFAI Law School, The ICFAI

University, Jaipur. I am thankful to my project report guide Ms. Ameesha Singh Assistant

Professor,The ICFAI University, Jaipur for his constant encouragement, invaluable

supervision, timely suggestions and inspired guidance. I would also like to thank the whole

staff of library for providing access to all the relevant books and materials from the library.

My thanks are also due to my friends for their support and suggestions. At last but not the

least, I take this opportunity to express my deep sense of gratitude towards those, who have

helped me directly or indirectly involved in the successful completion of this project work

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 DECLARATION BY AUTHOR

I hereby declare that this research project is my own original work and has not been

submitted before to any institution for assessment purposes. Further, I have acknowledged all

sources used and have cited these in the reference section.

Signature:- Anjali meena

Enrollment no.: ILS21207

Date :- 31th july 2023

TABLE OF CONTENT
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S.N CONTENT PAGE
. NUMBER

1. SCOPE OF STUDTY 6

2. RESEARCH OBJECTIVE 6

3. RESEARCH HYPOTHESIS 7

4. RESEARCH METHODOLOGY 7

5. ABSTRACT 8

6. INTRODUCTION 9- 11

7. BASIC FEATURE 12 - 14

8. JURISDICTION OF THE SUPREME COURT 14 - 18

9. FUNCTION OF THE JUDICIARY- 18 - 21

10. ROLE OF JUDICIARY IN PROTECTING FUNDAMENTAL 22 - 23

RIGHTS

11. HISTORICAL BACKGROUND 24 - 26

12. ARTICLE 32 AND ARTICLE 226. 27 - 35

13. CONCLUSION 36

14. BIBELIGRAPHY 37

SCOPE OF STUDY

1. Constitutional Framework: Understanding the constitutional provisions related to

fundamental rights in the specific country under consideration.

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 2. Role of the Supreme Court: Analyzing the role and powers vested in the Supreme
Court with respect to protecting and interpreting fundamental rights.

3. Judicial Review: Exploring the concept of judicial review, which allows the Supreme
Court to review the constitutionality of laws and government actions.

4. Landmark Cases

5. Balancing Rights and Interests: Investigating how the Supreme Court deals with cases
where fundamental rights may conflict with other interests, such as public order,
national security, or the rights of others. The court often has to strike a balance in such
situations.

6. Evolution of Interpretation: Tracing the evolution of the court's interpretation of

fundamental rights over time.

RESEARCH OBJECTIVE

The main objective of this research is to comprehensively investigate and analyze the role of
the Supreme Court as the guardian of fundamental rights in the context of a specific
jurisdiction. The study aims to achieve the following specific objectives:

1. Understanding the Concept of Fundamental Rights.

2. Historical Evolution

3. Analyzing Judicial Precedents

4. Checks and Balances

5. Public Perception and Impact

6. Comparative Analysis

7. Identifying Limitations

RESEARCH HYPOTHESIS

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The Supreme Court effectively acts as the guardian of fundamental rights in the legal system,
ensuring their protection and preservation through judicial interpretation and enforcement.

In this hypothesis, we are suggesting that the Supreme Court plays a crucial role in
safeguarding fundamental rights within the legal framework. The hypothesis implies that the
Court's decisions, interpretations, and application of the law are instrumental in upholding the
rights enshrined in the constitution. To prove or disprove this hypothesis, empirical evidence,
case studies, historical analysis, and legal precedents can be examined to assess the Supreme
Court's impact on fundamental rights protection over time

RESEARCH METHODOLOGY

1. Introduction: This section will provide an overview of the topic, the significance of
the study, and the research objectives.

2. Research Design: The research will adopt a qualitative research design. The study
will utilize secondary sources, such as scholarly articles, case law, legal
commentaries, and relevant books, to build a comprehensive analysis.

3. Research Approach: The research will employ a doctrinal approach.

4. Data Collection

5. Data Analysis: a Content Analysis

6. Scope and Limitations: Limitations may include the availability of relevant case laws
and recent changes in legal interpretations that may not be covered due to the
knowledge cutoff.

7. Conclusion

8. References: A list of all the sources cited in the research will be included in the
bibliography .

1
ABSTRACT

1
C.A.D Vol. VII at 953.

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While doing this research, the researcher found many facts related to Article 32 and Article

226.The purpose of this research is to know, why supreme court is a protector and guarantor

of fundamental rights. It is very interesting to know role of article 32 in our constitution.

During this research, the researcher followed various types of research – doctrinal and

analytical research, to use facts and information which are already available. Here researcher

also gathered many information from primary and secondary data like sources, book,

journals, newspaper and preliminary proceeding. This research is very helpful in enhancing

my knowledge about article 32 and some facts about article 226. Here the researcher wants to

discuss that article 32 is a fundamental right and it empowers supreme court to issue writs

whereas article 226 empowers high court to issue writs for enforcement of fundamental

rights. Fundamental rights also provided the remedy for the enforcement of the right under

article 32 of the Indian Constitution. The researcher discussed about function of the judiciary

like Administration of Justice, Application of Law, Making of Law, Interpretation of

Constitution, Guardian of the constitution, Protector or Individual Right and Render Advice.

It is also mentioned in research that under article 32 when supreme Court can refuse to permit

remedy. And it also interesting to know Whether Article 32 of Indian Constitution be

amended under Article 368.The most important point that Fundamental Right is applicable on
the citizen of India.

KEYWORDS

Administration of Justice, Making of Law, Render Advice, Supreme Court as Protector and
Guarantor of Fundamental Right. “If I was asked to any particular Article in this Constitution
as the most important- an Article without which this Constitution would be a nullity- I could
not refer to any other Article except this one…. It is very soul of the Constitution and the
very heart of it,”

1 Dr. B.R.
Ambedkar.

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 INTRODUCTION

Bryce says that “If the law be dishonestly administered, the salt has lost its flavor.” It means
if a lamp of justice goes out the judiciary gives a gloried about the importance, intendment
and necessity of the judiciary in a government particularly in a democratic. It is legitimate
said that the excellence of a country’s judiciary is a measure of the excellence of its
government.

‘Justice’ is an ivory for every country and is most important rule for every government. It has
to perform a very important role in the government set-up. If the judiciary is prejudice or not
independent then the light of justice will fade away and the life of the people will be
diminished.

Through its power of judicial review, the Supreme Court possesses the authority to examine
the constitutionality of legislative and executive actions, scrutinizing their compatibility with
the fundamental rights enshrined in the constitution. By meticulously analyzing the
constitution's language and intent, the Court serves as a crucial check against any attempts to
curtail or violate the sacred rights that underpin the democratic fabric of a nation.

Throughout history, landmark decisions by the Supreme Court have played an instrumental
role in advancing civil rights, social justice, and individual freedoms. From promoting racial
integration to upholding freedom of speech, religion, and privacy, the Court has continuously
navigated complex legal terrain to balance the state's legitimate interests with the preservation
of citizens' essential rights.

The notion of the Supreme Court as the guardian of fundamental rights is not limited to
specific jurisdictions; rather, it extends to various democratic nations worldwide. Each
country may have its own distinct legal framework and constitutional provisions, but the
overarching objective remains the same: to uphold the principles of justice, equality, and
human dignity through the protection of fundamental rights.

In this exploration of the Supreme Court's role as the guardian of fundamental rights in legal
terms, we will delve into its historical significance, its impact on pivotal cases that shaped
societies, and the intricate process of constitutional interpretation that guides its decisions.
Through this analysis, we aim to illuminate the vital role played by the Supreme Court in

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preserving the bedrock of democratic values and ensuring that fundamental rights endure as
an unassailable foundation for generations to come

The Supreme Court is basically the living outlet of the Constitution- It is basically the will of
the people which is expressed in the Fundamental Law that they have resolve to retain
themselves from hasty and unjust action by placing their representative under the restriction
of permanent law2. It is very well said that Fundamental Rights is meaningless unless there is
an operative machinery for the enforcement of the rights. It is remedy that makes rights very
effective and accurate. It is well said that if there is no remedy, there is no right at all.
Fundamental Rights also provided an adequate remedy under Article 32 of the Constitution.
Under Article 226 it empowers all The High Court to issue the writs for the enforcement of
Fundamental Rights.

Fundamental rights guaranteed to citizens, which is as incorporated in Part III of the

Constitution, constitute individual rights common to most people in liberal democracies.
They are enforceable in a court of law, i.e.; their violations result in punishment. These rights
are not absolute, they are exercised within the framework of the provisions of the
constitution. They generally help us to remove or crimination on ground of religions, race,
sex, region, or place of birth etc. These rights also protect and promotes the interest of the
minorities, their religious, culture, and ethnic. They also guarantee us freedom to enjoy the
right to life and personal liberty.

The Fundamental rights are both natural as well as legal. They are necessary for the
development of personality. And legal is for they are binding upon every government-
central, provincial, district and local.

 Articles 32(1) guarantees the right to move the Supreme Court by “appropriate
proceedings” for the enforcement of Fundamental Rights conferred by Part III of the
Constitution.
 Clause (2) of Article 32 confers power on the Supreme Court to issue appropriate
directions or orders or writs in the nature of habeas corpus, mandamus, prohibition,
quo-warranto and certiorari for the enforcement of any of the rights.

2
Bryce, James, American Commonwealth( London: The Macmillan Co.; 1960,p.68.

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  Clause (3) of Article 32 states that Parliament may by law empower any court to
exercise within the local limits of the jurisdiction all or of the powers exercised by the
Supreme Court under Clause (2).
 Under Clause (4), the right guaranteed by Articles 32 shall not be suspended except
as otherwise provided for the Constitution. Article 32 thus provides for an expeditious
and inexpensive remedy for the protection of fundamental rights from legislative and
executive interference3.

It is apparent from Article 32(1) that whenever there is a violation of Fundamental Rights,
any person can move the Court for an appropriate remedy.

The Supreme Court has characterized the jurisdiction conferred on it by article 32 as ‘an
important and integral part of the basic structure of the Constitution’ because it is
meaningless to confer fundamental rights without providing an effective remedy for their
enforcement if and when, they are violated.

‘A right without a remedy is a legal conundrum of a most grotesque kind.’ Article 32 confers
a highly-cherished right.4 The Supreme Court has given a dynamic interpretation to these
constitutional provisions and has read therein the right to award compensation for breach of a
fundamental rights when no other remedy was suitable in the fact situation to give redress
and relief to the petitioner. The word compensation does not occur in Article32 or 226. These
articles merely speak of ‘writs’, ‘orders’ or ‘directions’ for the enforcement of fundamental
rights.

Under Article 32 the Court refuse to award monetary compensation before 1983, for
infringement of Fundamental Rights. A major contribution by the court towards the
protection of Fundamental Rights against undue interference by administrative authorities, as
situations may arise when only compensation can provide some relief to the affected person;
no writs or order could fill the bill. In KHATRI V BIHAR5, the Bhagalpur police had
blinded certain accused persons. In this case, the Supreme Court for the first time raised the
extremely significant, constitutional question, namely, if the State deprives a person of his

3
Ibid.
4
Fertilizer Corporation Kamgar Union v Union of AIR 1981 SC 344.
5
Also see Khatri v Bihar AIR 1981 SC 928; Sheela Barse v State of Maharashtra AIR 1983 SC 378; Ranjan
Dwivedi v India AIR 1983 SC 624.

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life or personal liberty in violation of the right guaranteed by Article 21, can the Supreme
Court under Article 32 give monetary compensation to the aggrieved.

BASIC FEATURE:

Judicial review under article 32 and 226 is a basic feature of the Constitution beyond the light
of amenability. It refers to the power of the judiciary to review and, if necessary, invalidate
actions taken by the legislative and executive branches of government that are deemed
unconstitutional. This authority plays a fundamental role in maintaining the balance of power
and upholding the rule of law within the country's legal system.

There are some features of supreme court

1. Constitutional Interpretation: The Supreme Court has the authority to interpret the
Constitution of the country. It can examine laws, regulations, and actions of the
government to determine whether they align with the principles and provisions set
forth in the Constitution. This ensures that the government operates within the
boundaries established by the nation's foundational legal document.

2. Unconstitutional Actions: If the Supreme Court finds that a law, executive action, or
governmental policy violates the Constitution, it can declare it unconstitutional and,
as a result, nullify or strike down the measure. This declaration holds the force of law,
rendering the action in question legally invalid and unenforceable.

3. Marbury v. Madison: In the United States, the concept of judicial review was
established through the landmark case of Marbury v. Madison in 1803. Chief Justice
John Marshall asserted that the Supreme Court had the authority to review acts of
Congress and determine their constitutionality. This decision set the precedent for
judicial review and solidified the role of the Supreme Court as the ultimate arbiter of
constitutional matters.

4. Checks and Balances: The concept of judicial review creates a system of checks and
balances within a government. It allows the judiciary to act as a check on the other
branches, preventing any one branch from accumulating too much power or

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 overstepping its constitutional boundaries. This helps ensure a separation of powers
and safeguards against potential abuses of authority.

5. Preserving Fundamental Rights: One of the essential functions of judicial review is

protecting the rights and liberties of individuals. By examining laws and government
actions, the Supreme Court can safeguard fundamental rights guaranteed by the
Constitution, such as freedom of speech, religion, and due process, among others.

6. Limitations on Judicial Review: While judicial review is a crucial aspect of the

Supreme Court's authority, there are some limitations to this power. The Court can
only review cases and controversies that come before it through proper legal channels.
Additionally, the Court generally avoids rendering advisory opinions or intervening in
political questions without a concrete legal dispute to address.

7. Evolving Interpretation: Over time, the interpretation of the Constitution may evolve,
and the Court's rulings can reshape legal precedents. As society and the understanding
of constitutional principles change, the Court's interpretations can adapt to reflect the
evolving values of the nation.

 Certiorari
i) This may be issued where the law under which the decision was void.
ii) the decision itself violates a fundamental right.
iii) the decision violates the law or which is without jurisdiction.
iv) the decision is against natural justice, mala fide.

THE PERSON AGAINST WHOM THE WRIT CAN BE ISSUED

 Child prostitution- Court has promulgated directions to control the evil of child
prostitution.
 Closure of industry- Supreme Court announced order for revival of a company having
regard to the evidence that living had been denied to 10,000 workers for five years.
 Commissioner- Court may appoint a person to act as Commissioner to examine into
allegations made in contrast to Government officers for breach of fundamental right.

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 A request made after an objective inquiry would not be rejected unless justification is
shown to exist for rejection.
 Compensation- For deprivation of right to life and personal liberty. The
compensation may be awarded.
 Locus standi- Any person those who are complaining of infraction of any fundamental
rights guaranteed by the Constitution is at liberty to move to the Supreme Court but
the rights that could be invoked under Art.32 must ordinarily be the rights of the
person who complains of the infraction of such rights and approaches the court for
relief and the proper subject for investigation would however be as to the nature of the
rights that is stated to have been infringed.
 Mandamus
i) It should be issued under article 32 where fundamental right is infringed by a
statute.
ii) Statutory Order
iii) Executive Order
 Natural Justice- The Court can go under article 32 or article 226 refuse to exercise its
direction of striking down the order. If such striking down will result in restoration of
another order passed earlier in favor of the petitioner or against the opposition party
for violation of principles of natural justice which is otherwise not in accordance with
law.

JURISDICTION OF THE SUPREME COURT

The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original
jurisdiction extends to any dispute between the Government of India and one or more
States or between the Government of India and any State or States on one side and one or
more States on the other or between two or more States, if and insofar as the dispute
involves any question (whether of law or of fact) on which the existence or extent of a legal
right depends. In addition, Article 32 of the Constitution gives an extensive original
jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is
empowered to issue directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme
Court has been conferred with power to direct transfer of any civil or criminal case from

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one State High Court to another State High Court or from a Court subordinate to another
State High Court. The Supreme Court, if satisfied that cases involving the same or
substantially the same questions of law are pending before it and one or more High Courts
or before two or more High Courts and that such questions are substantial questions of
general importance, may withdraw a case or cases pending before the High Court or High
Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act,
1996, International Commercial Arbitration can also be initiated in the Supreme Court .

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by
the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect
of any judgement, decree or final order of a High Court in both civil and criminal cases,
involving substantial questions of law as to the interpretation of the Constitution. Appeals
also lie to the Supreme Court in civil matters if the High Court concerned certifies : (a) that
the case involves a substantial question of law of general importance, and (b) that, in the
opinion of the High Court, the said question needs to be decided by the Supreme Court. In
criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal
reversed an order of acquittal of an accused person and sentenced him to death or to
imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial
before itself any case from any Court subordinate to its authority and has in such trial
convicted the accused and sentenced him to death or to imprisonment for life or for a
period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the
Supreme Court. Parliament is authorised to confer on the Supreme Court any further
powers to entertain and hear appeals from any judgement, final order or sentence in a
criminal proceeding of a High Court.

The Supreme Court has also a very wide appellate jurisdiction over all Courts and
Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under
Article 136 of the Constitution from any judgment, decree, determination , sentence or order
in any cause or matter passed or made by any Court or Tribunal in the territory of India.

The Supreme Court has special advisory jurisdiction in matters which may specifically be
referred to it by the President of India under Article 143 of the Constitution.

Under Articles 129 and 142 of the Constitution, the Supreme Court has been vested with
power to punish for contempt of Court including the power to punish for contempt of itself.

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In case of contempt other than the contempt referred to in Rule 2, Part-I of the Rules to
Regulate Proceedings for Contempt of the Supreme Court, 1975, the Court may take action
(a) Suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or (c) on
a petition made by any person, and in the case of a criminal contempt with the consent in
writing of the Attorney General or the Solicitor General.

 PUBLIC INTEREST LITIGATION

Although the proceedings in the Supreme Court arise out of the judgments or orders made
by the Subordinate Courts including the High Courts, but of late the Supreme Court has
started entertaining matters in which interest of the public at large is involved and the Court
can be moved by any individual or group of persons either by filing a Writ Petition at the
Filing Counter of the Court or by addressing a letter to Hon'ble the Chief Justice of India
highlighting the question of public importance for invoking this jurisdiction. Such concept
is popularly known as 'Public Interest Litigation' and several matters of public importance
have become landmark cases. This concept is unique to the Supreme Court of India only
and perhaps no other Court in the world has been exercising this extraordinary jurisdiction.
A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and
processed as such. In case of a letter addressed to Hon'ble the Chief Justice of India the
same is dealt with in accordance with the guidelines framed for the purpose.

 PROVISION OF LEGAL AID

If a person belongs to the poor section of the society having annual income of less than Rs.
5,00,000/- or belongs to Scheduled Caste or Scheduled Tribe, a victim of natural calamity,
is a woman or a child or a mentally ill or otherwise disabled person or an industrial
workman, or is in custody including custody in protective home, he/she is entitled to get
free legal aid from the Supreme Court Legal Aid Committee. The aid so granted by the
Committee includes cost of preparation of the matter and all applications connected
therewith, in addition to providing an Advocate for preparing and arguing the case. Any
person desirous of availing legal service through the Committee has to make an application
to the Secretary and hand over all necessary documents concerning his case to it. The
Committee after ascertaining the eligibility of the person provides necessary legal aid to

16
him/her.

 HIGH COURTS

The High Court stands at the head of a State's judicial administration. There are 25 High
Courts in the country, three having jurisdiction over more than one State

Each High Court has power to issue to any person within its jurisdiction directions, orders,
or writs including writs which are in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari for enforcement of Fundamental Rights and for any other
purpose. This power may also be exercised by any High Court exercising jurisdiction in
relation to territories within which the cause of action, wholly or in part, arises for exercise
of such power, notwithstanding that the seat of such Government or authority or residence
of such person is not within those territories.

Each High Court has powers of superintendence over all Courts within its jurisdiction. It
can call for returns from such Courts, make and issue general rules and prescribe forms to
regulate their practice and proceedings and determine the manner and form in which book
entries and accounts shall be kept.

 ADVOCATE GENERAL

There is an Advocate General for each State, appointed by the Governor, who holds office
during the pleasure of the Governor under Article 165 of the Constitution of India. He must
be a person qualified to be appointed as a Judge of High Court. His duty is to give advice to
State Governments upon such legal matters and to perform such other duties of legal
character, as may be referred or assigned to him by the Governor. The Advocate General
has the right to speak and take part in the proceedings of the State Legislature without the
right to vote.

 LOK ADALATS

Lok Adalats which are voluntary agencies is monitored by the State Legal Aid and Advice
Boards. They have proved to be a successful alternative forum for resolving of disputes
through the conciliatory method.

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The Legal Services Authorities Act, 1987 provides statutory status to the legal aid
movement and it also provides for setting up of Legal Services Authorities at the Central,
State and District levels. These authorities will have their own funds. Further, Lok Adalats
which are at present informal agencies will acquire statutory status. Every award of Lok
Adalats shall be deemed to be a decree of a civil court or order of a Tribunal and shall be
final and binding on the parties to the dispute. It also provides that in respect of cases
decided at a Lok Adalat, the court fee paid by the parties will be refunded

FUNCTION OF THE JUDICIARY-

 Administration of Justice
It is one of the most important functions of the judiciary is to administration of
justice. In fact, the existence of judiciary is justified for its function of administration
of justice. While the judiciary hear and decide on the basis of different cases on civil,
criminal, constitutional and other matters, the dedication remains for the
administration of justice.
 Application of Law
Basically, Judiciary has also the task of application of law. It has, to apply the law in
specific cases like civil and criminal. Judiciary has a very significant role in the
application of law because in many cases, law does not and may not provide clear
hint and in such a situation the judiciary has to play a very delicate and supreme role.
 Making of Law
Making of law or task of legislation is fundamentally the business of the legislature,
but the judiciary or the courts also make laws in various ways. While deciding the
cases where there are clear laws, the judiciary has not to make a law. But in many of
the cases, law may be ambiguous or vague, in such cases, the judiciary or the judges
judge them in a different way within the existing framework. Hence, they provide a
new dimension to the law. In fact, it is known as judge made law.
 Interpretation of Constitution
The judiciary is also assigned with the task of interpretation of the constitution of the
country. In a democratic political set- up the judiciary is generally made the
accredited interpreter of the constitution. There are many words and expressions in

18
 the constitution that might require interpretation in different situations and the
judiciary perform the task in such cases. In a federal form of government, this task is
of special significance because it involves the relationship of the center and the states
concerning their allocation of jurisdiction. It determines the constitutionality of laws,
executive actions, and government policies, ensuring that they comply with the
fundamental principles and rights enshrined in the constitution
 Guardian of the Constitution
The judiciary or the Court also act as the guardian of the constitution, especially in a
federal set-up. While performing the role as guardian of the constitution, the judiciary
keeps a close eye over the activities of the legislature and that any part of legislation
violates the constitution, the judiciary can declare the law as ultra vires or
unconstitutional.
 Protector or Individual Rights
In a democratic political set-up, the judiciary is one who performs the important
function of the protection of the individual rights. Through its interpretations of the
constitution, the Supreme Court protects individual rights and liberties. It has played
a vital role in landmark cases related to civil rights, privacy, freedom of speech, and
other fundamental rights The judiciary, through its power of judicial review, work as
a watch dog for the protection of individual rights and in case of any violation, it
takes immediate action for the infringement of any such fundamental rights.
 Render Advice
The courts or the judiciary also maintain the function of rendering advice whenever it
sought for. In case, some of the constitutional provisions seems to be vague on the
part of the government of a country; In a particular situation the executive branch
may seek advice from the judicial branch; And in such cases, the judiciary performs a
very important task.
 Promotion of Legal Consistency and Predictability
As the highest court, the Supreme Court sets legal standards and principles that
lower courts follow, promoting consistency, fairness, and predictability in the legal
system.
 Resolving Conflicts

19
 The Supreme Court resolves conflicts between different federal or state courts on
issues of law. This function ensures uniformity in legal interpretation and prevents
inconsistent judgments across the country
 Final Appellate Authorit
The Supreme Court serves as the highest court of appeal in the country. It reviews
and decides appeals from lower courts, ensuring uniformity and consistency in the
interpretation and application of laws across the nation

List of the fundamental rights and there specification

In India, the fundamental rights are enshrined in Part III of the Constitution. These rights
provide citizens with basic guarantees and protections against arbitrary actions by the state,
ensuring their dignity, freedom, and overall well-being. Let's take a detailed look at each of
the fundamental rights:

1. Right to Equality (Articles 14-18): a. Article 14: Right to Equality before the Law - It
ensures that all individuals are equal in the eyes of the law and that there should be no
discrimination on grounds of religion, race, caste, sex, or place of birth. b. Article 15:
Prohibition of Discrimination - It prohibits the state from discriminating against any
citizen on the basis of religion, race, caste, sex, or place of birth. It also empowers the
state to make special provisions for women and children and for socially and
educationally backward classes. c. Article 16: Equality of Opportunity in Public
Employment - It guarantees equality of opportunity for all citizens in matters of
public employment, and it prevents discrimination on the grounds of religion, race,
caste, sex, descent, place of birth, or residence. d. Article 17: Abolition of
Untouchability - It abolishes the practice of untouchability in any form and forbids its
practice in any public place. e. Article 18: Abolition of Titles - It prohibits the state
from conferring any titles except for military or academic distinctions and prevents
citizens from accepting titles from foreign states.
2. Right to Freedom (Articles 19-22): a. Article 19: Protection of Certain Rights
Regarding Freedom of Speech, etc. - It guarantees the right to freedom of speech and
expression, the right to assemble peacefully, the right to form associations or unions,
the right to move freely throughout the country, and the right to reside and settle in

20
 any part of India. b. Article 20: Protection in Respect of Conviction for Offences - It
provides protection against double jeopardy (being tried twice for the same offense),
self-incrimination, and retrospective punishment (punishment for an act that was not
an offense when committed). c. Article 21: Protection of Life and Personal Liberty - It
ensures that no person shall be deprived of his/her life or personal liberty except
according to the procedure established by law. d. Article 21A: Right to Education -
The right to education was added through the 86th Amendment Act, making
education a fundamental right for children between the ages of 6 and 14 years. e.
Article 22: Protection against Arrest and Detention - It provides safeguards against
arrest and detention, including the right to be informed of the grounds of arrest, the
right to legal representation, and the right to be produced before a magistrate within
24 hours.
3. Right against Exploitation (Articles 23-24): a. Article 23: Prohibition of Traffic in
Human Beings and Forced Labor - It prohibits human trafficking and forced labor. It
also bans the employment of children in hazardous jobs. b. Article 24: Prohibition of
Child Labor - It prohibits the employment of children below the age of 14 years in
any hazardous occupation or employment.
4. Right to Freedom of Religion (Articles 25-28): a. Article 25: Freedom of Conscience
and Free Profession, Practice, and Propagation of Religion - It guarantees the freedom
of individuals to follow any religion of their choice and to practice, profess, and
propagate it. b. Article 26: Freedom to Manage Religious Affairs - It provides
religious communities with the freedom to manage their religious affairs and maintain
institutions for religious purposes. c. Article 27: Freedom from Paying Taxes for
Promotion of a Particular Religion - It ensures that no person shall be compelled to
pay taxes for the promotion or maintenance of any particular religion. d. Article 28:
Freedom from Religious Instruction in Educational Institutions - It prohibits religious
instruction in educational institutions wholly funded by the state.
5. Cultural and Educational Rights (Articles 29-30): a. Article 29: Protection of Interests
of Minorities - It protects the educational and cultural interests of minorities by
allowing them to establish and administer educational institutions of their choice. b.
Article 30: Right of Minorities to Establish and Administer Educational Institutions -
It grants religious and linguistic minorities the right to establish and administer
educational institutions of their choice.

21
 6. Right to Constitutional Remedies (Article 32): Article 32 empowers individuals to
approach the Supreme Court of India directly for the enforcement of fundamental
rights. The Supreme Court can issue writs, including habeas corpus, mandamus,
certiorari, prohibition, and quo warranto, to protect these rights.

These fundamental rights are the backbone of the Indian Constitution, ensuring that every
citizen enjoys certain basic liberties and protections. The Constitution also allows for
reasonable restrictions on some of these rights in the interest of public order, morality,
security, and the sovereignty and integrity of India. Overall, the fundamental rights play a
crucial role in upholding the democratic values and ensuring justice and equality for all
citizens of India.

ROLE OF JUDICIARY IN PROTECTING FUNDAMENTAL RIGHTS

1. The judiciary protects fundamental rights through various means such as writs, public
interest litigation (PIL), and judicial review.

2. Interpreting and Enforcing the Constitution:

 The judiciary plays a key role in interpreting and enforcing the Constitution,
which serves as the supreme law of the land and provides for the protection of
fundamental rights.
 The courts are empowered to strike down laws or government actions that
violate constitutional provisions, including those related to fundamental rights

3. Providing Remedies for Violations of Fundamental Rights:

 The judiciary also provides remedies for violations of fundamental rights,

including the issuance of writs such as habeas corpus, mandamus, and
certiorari, which can be used to protect against unlawful detention, compel
government action, or review decisions of lower courts.
 The courts can award damages or other forms of relief to individuals whose
fundamental rights have been violated.

22
 4. Protecting Minorities and Marginalized Groups:

 The judiciary plays a critical role in protecting the rights of minorities and
marginalized groups, who may be particularly vulnerable to violations of
fundamental rights. For example, the courts can strike down laws or
government actions that discriminate on the basis of race, religion, or other
characteristics protected by fundamental rights provisions.

5. Upholding International Human Rights Standards:

 The judiciary may also look to international human rights standards and
treaties, which may be incorporated into domestic law, when interpreting and
enforcing fundamental rights provisions.
 This can provide additional protections for individuals whose fundamental
rights are at risk of being violated.

6. Serving as an Independent Check on Government Power:

 The judiciary serves as an independent check on government power, ensuring

that the executive and legislative branches do not overstep their constitutional
authority and infringe on fundamental rights.

Examples where Judiciary Protected Fundamental Rights:

 The judiciary has delivered several landmark judgments that have strengthened the
protection of fundamental rights, such as the Kesavananda Bharati case (established
the doctrine of basic structure of the Constitution), Puttaswamy judgment (right to
privacy).
 ADM Jabalpur case:
The Supreme Court in the ADM Jabalpur case (1976) upheld the government's
right to detain citizens without trial during the Emergency, which was a
blatant violation of fundamental rights.

23
  NALSA Case:
The judiciary has played a significant role in protecting the rights of
marginalized communities, such as the transgender community, through
judgments such as the National Legal Services Authority (NALSA) v. Union
of India case (2014), which recognized transgender persons as a third gender
and granted them equal rights and protection under the law.

 Shreya Singhal case:

The judiciary has also protected the freedom of speech and expression through
landmark judgments such as the Shreya Singhal case (2015), which struck
down Section 66A of the Information Technology Act, 2000, which was used
to suppress free speech on the internet

HISTORICAL BACKGROUND

Part III of the Indian Constitution constitute the Charter of Freedom of The Citizens of the
India. It is what The Magna Carta is the essential freedoms of the Indian people. The framers
of the Indian Constitution did not leave their task only by laying down Fundamental Rights,
because a right without adequate measure of protection would be a heap of sands. They also
arranged certain measures to protect them, because they knew that all power corrupts, and
absolute power corrupts absolutely.6 Again, basic human rights of the citizens be arbitrarily
curtailed by the executive or by the legislature. Hence, it is necessary to provide an effective
machinery of their protection.7

The Supreme Court acts as a laboratory where the validity of the laws and executive actions
are tested in the light of the relevant constitutional provisions. 8 In other way, this court acts as
perpetual watch dog and keeps an unceasing vigil to protect the Fundamental Rights of the
citizens. Right to constitutional remedies constitute the anchor of democracy of India. 9

Dr. B.R. Ambedkar, while commenting on the provisions of Articles- 32, opined. “If I wish
to make a particular article as the most important without which this Constitution
would be a nullity, I would not refer to another article except this.”

Therefore, Article 32 declares all laws contravening Fundamental Rights void, and Art. 32
makes this declaration effective by giving the aggrieved person a Fundamental Right to

6
AIR1965 SC395.
7
Seervai, H.M.; The position of the Judiciary under the Constitution of India( Bombay: University of Bombay,
1970);p.2.
8
Reddy, Sarojini P., Judicial Review of Fundamental Rights ( Delhi: National Publishing House, 1976),p.30.
9
Gajendragadkar, P.B., Law, Liberty and Social Changes ( Bombay: Asia Publishing House, 1965),p.30.

24
obtain from the Supreme Court appropriate directions, orders or writs in the nature of Habeas
Corpus, Mandamus, Prohibition, Quo Warrant, and Certiorari, restraining the violation of his
Fundamental Rights.

It is by virtue of the powers conferred by these two articles that the Supreme Court and High
Courts have been functioning as the custodian of the Fundamental Rights. In course of its
functioning for the last Thirty years, the Supreme Court of India had many opportunities to
elucidated the scope, amplitude and mode of operation of its judicial review; specially under
Art.32 of the Constitution which makes the Court the protector and guarantor of the
Fundamental Rights enshrined in the Constitution. The Court can apply several writs.
They are as follows;

 Habeas Corpus- It literally means bring the body. In legal terms, habeas corpus is
simply the name for the procedure by which the court inquire into the legality of a
citizen’s detention.
The reason is very straight forward. The availability of habeas corpus means that if an
individual is found to have been imprisonment unlawfully the court can release him or
her, thus enforcing the law and frustrating governmental oppression.

The writ of habeas corpus will be issued if the confinement is prima facie illegal.

1. Kanu Sanyal v. District Magistrate- In the case, the court may examine the legality of the
detention without requiring the person detained to produce before it.

2. In Sheela Barse v. State of Maharashtra- If the detained person is unable to pray for the
writ of habeas corpus, someone else may pray for such writ on his behalf.

 Mandamus- This writ in usually in the form of a command which is issued by

Supreme Court to the Government, inferior court, tribunal, public authority,
corporation or any other person having public duty to perform asking such
Government, inferior, public authority, corporation or to refrain from doing illegal
act. A mandamus is available against any public authority having administrative and
local bodies and it would relied to any person who is under a duty imposed by statute
or the common law to do a particular act. The writ can granted against a public
authority if;

25
1. Acted against the law.

2. Exceeded his limits of power.

3. Acted with mala fides.

4. Abused his discretionary powers.

5. Has taken into account irrelevant consideration.

 Certiorari- It is writ which is issued by Supreme Court (i.e., the High Court or the
Supreme Court) to the inferior Court or Tribunal or body exercising judicial or quasi-
judicial functions to remove the proceedings from such Court, Tribunal or body for
examining the legality of the proceedings. It means “To be Certified”
These writs are issued by the superior court in the exercise of its supervisory function
and not in the exercise of its appellate function10
 In Hari Vishnu Kamath v. Ahmad Ishaque 1955-I S 1104: (s) AIR 1955 SC
233); the proposition laid in issuing this writ by the High Court is issued to
correct the errors of Jurisdiction.
1. When court or tribunal acts illegal in its jurisdiction.
2. Order against principles of natural justice.
3. Court acts in exercise of its supervisory and not appellate Jurisdiction.
4. An error in the decision or determination itself may also be amended to a
writ of Certiorari.
 Prohibition- Prohibition is a writ and that is issued by a superior Court to inferior
Court or tribunal or body exercising judicial functions preventing such inferior Court
or Tribunal or body from usurping jurisdiction which is not legally vested therein or
form acting in violation of the principles of natural justice or from acting under
unconstitutional law. It is an order directed to an inferior Court which forbids the

Court to continue proceedings therein in excess of its jurisdiction or in contravention of the

law of the land.11

 Quo-Warranto- Basically meaning of ‘Quo-Warranto’ is ‘by what authority’.

According to Halsbury “An information in the nature of quo-warranto took the place
10
Hari Vishnu v. Sayed Ahmed, (1950) 1 SCR 1104.
11
East India Commercial Co. v. Collector of Customs, AIR 1962 SC 1893.

26
 of the absolete writ of quo-warrento which lay against a person who claimed or
usurped an office, franchise or liberty, to enquire by what authority he supported his
claim, in order that the right to the office or franchise might be determined.”

The procedure of quo-warranto confers jurisdiction and authority on the judiciary to control
executive action in the matter of appointment to public office against the relevant statutory
provision.12

Article 32 and Article 226.

Article 32: Safeguarding Fundamental Rights and Its Enormous Significance

In the democratic framework of a nation, the protection and preservation of fundamental

rights are paramount. These rights are the bedrock of individual liberty, dignity, and equality.
In the Indian Constitution, one provision that stands as a bulwark for safeguarding these
rights is "Article 32." This crucial article plays a pivotal role in upholding the fundamental
rights of citizens, ensuring that they are not violated or undermined by any authority. Its
significance lies in empowering citizens to seek justice directly from the highest court, the
Supreme Court of India, making it an indispensable element of the Indian democratic
structure.

Understanding Article 32:

Article 32 of the Indian Constitution falls under Part III, which deals with Fundamental
Rights. It confers upon every citizen the "right to move the Supreme Court" to seek redressal
for the violation of their fundamental rights. This means that if an individual feels that their
fundamental rights have been encroached upon, they can directly approach the apex court,
bypassing lower courts and various judicial hierarchies. Article 32 acts as a fundamental right
itself, making the Supreme Court a defender of citizens' liberties.

Key Features and Importance:

1. Protector of Fundamental Rights: Article 32 acts as a "guarantor" of fundamental

rights by enabling the Supreme Court to issue "writs" to enforce these rights. Writs

12
University of Maysore v. Govind Rao, AIR 1965 SC 491.

27
 like Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto can be
issued under Article 32 to protect the citizens from arbitrary actions and ensure that
the government and its agencies function within the bounds of the Constitution.

2. Direct Access to Justice: This article empowers citizens with the right to directly
approach the Supreme Court, thereby eliminating delays and bureaucratic obstacles. It
ensures speedy justice for victims whose rights have been violated, often preventing
further harm or injustices.

3. Guardian of the Constitution: Article 32 empowers the Supreme Court to act as the
guardian of the Constitution. By providing a mechanism to challenge legislative
actions, executive decisions, and administrative orders, it ensures that all actions by
the government adhere to the principles laid down in the Constitution.

4. Checks and Balances: The provision of Article 32 acts as a critical check on the
powers of the government and its agencies. It restrains the authorities from taking
arbitrary actions, thereby maintaining a balance between individual liberties and the
needs of the state.

5. Preventing Tyranny: In times of emergency or during periods when fundamental

rights may be at risk, Article 32 serves as a vital safeguard against potential tyranny or
abuse of power. It strengthens the democratic fabric and acts as a bulwark against any
authoritarian tendencies that might arise.

6. Ensuring Social Justice: Article 32 is not limited to protecting the rights of

individuals; it also serves as a potent tool for ensuring social justice. It enables
marginalized and disadvantaged sections of society to seek legal recourse and fight
against discrimination, oppression, and exploitation.

7. Symbol of Democratic Values: Article 32 embodies the core democratic values of

the Indian Constitution. It reflects the founders' commitment to creating a just and
equitable society that upholds the dignity and rights of every citizen.

Article 226

Article 226 of the Constitution of India is of paramount importance as it empowers

the High Courts of the various states to issue certain writs for the enforcement of

28
 fundamental rights and for other purposes. This provision plays a crucial role in
safeguarding the rights and liberties of citizens and upholding the rule of law. Here
are the importance and specifications of Article 226:

1. Upholding Fundamental Rights: One of the primary objectives of Article 226 is to

ensure the protection of fundamental rights guaranteed to Indian citizens under Part
III of the Constitution. The High Courts can issue writs such as habeas corpus,
mandamus, prohibition, certiorari, and quo warranto to safeguard these rights. This
gives individuals an avenue to seek legal remedies in case their fundamental rights are
violated by any authority, including the government.

2. Judicial Review: Article 226 confers upon the High Courts the power of judicial
review. This means that the High Courts can examine the legality, validity, and
constitutionality of actions taken by the executive and other subordinate authorities. If
any action is found to be arbitrary, unconstitutional, or against the principles of
natural justice, the High Court can quash or set aside such action through the
appropriate writ.

3. Control over Administrative Authorities: Article 226 enables the High Courts to
exercise control over the actions of administrative and other public authorities. This
ensures that these authorities act within the bounds of their powers and do not misuse
or abuse their authority. If any administrative decision is found to be unjust or in
violation of the law, the High Court can intervene and provide relief to the affected
parties.

4. Writ Jurisdiction: The writ jurisdiction granted to the High Courts under Article 226
is wider than that of the Supreme Court, which can issue writs only for the
enforcement of fundamental rights under Article 32. In contrast, the High Courts can
issue writs for not only fundamental rights but also for any other purpose. This makes
Article 226 a significant tool for seeking justice and ensuring the rule of law at the
state level.

5. Quicker Remedies: Article 226 empowers the High Courts to issue writs promptly and
effectively, allowing for quicker resolutions to disputes and grievances. This is
especially important in cases where immediate action is required to protect
fundamental rights or prevent irreparable harm.

29
 6. Wide Applicability: Article 226 is applicable not only to individuals but also to legal
entities, organizations, and even the government itself. It serves as a check and
balance on the actions of all authorities, ensuring that they act in accordance with the
principles of justice and fairness

Difference between article 32 and 226

There are many differences which are discussed here. It assembled clearly in Article 226, that
the High Court effectiveness throughout the territories in alliance to which it exercises
jurisdiction, to issue to any person or authority including in appropriate cases any
Government within those territories directions, orders or writs for enforcement of the
Fundamental Right.

Article 32 is itself a Fundamental Right and guarantees the right to move the Supreme Court
by appropriate proceeding for the enforcement of Fundamental Right. There is some
difference between Article 32 and Article 226 and they are following;

 Under Article 32, the remedy is indulged only for enforcement of the
Fundamental Right which are guaranteed in Part III of the constitution
whereas Article 226 permits the High Court to issue directions, orders and
writs for the enforcement of the Fundamental Rights and also for the
enforcement of any other purpose.
 In under Article 32, if petition filed is removed by Supreme Court on the
merit, a subsequent petition under Article 226 would be barred.13
 The territorial jurisdiction of the High Court is not as wide as that of the
Supreme Court. The jurisdiction of the Supreme Court prolongs to the whole
territory of India, but High Court does not enjoy such jurisdiction.
 During the period of emergency article 32 can be suspended whereas
President of India cannot suspend articles 226.
 Article 32 empowers the Supreme Court to issue writs whereas Article 226
empowers every High Court to issue the writs.
 When the Fundamental Rights are infringed or threatened, Articles 32
empowers the Supreme Court to issue the writs but only article 226 enables
13
See Workmen v. Board of Trustees, AIR 1978 SC 1283.

30
 the High Court to issue orders to writs in the nature of habeas corpus,
mandamus, prohibition, certiorari, quo-warranto and to protect aggrieved.

1. Scope of Jurisdiction:

 Article 32: The Supreme Court has exclusive jurisdiction over the enforcement of
fundamental rights.

 Article 226: The High Courts have concurrent jurisdiction with the Supreme Court,
and they can issue writs for the enforcement of fundamental rights and other legal
rights.

2. Right to Move Directly:

 Article 32: Allows individuals to directly move the Supreme Court for the
enforcement of fundamental rights, bypassing the High Court.

 Article 226: Individuals can approach the High Court directly for the enforcement of
fundamental rights and other legal rights, but they can also approach the Supreme
Court directly under Article 32 for the enforcement of fundamental rights.

3. Binding Nature:

 Article 32: Supreme Court's judgments and orders are binding on all authorities and
courts in India.

 Article 226: High Court's judgments and orders are binding within the territory of its
respective state or union territory.

Under Article 32 When the Supreme Court can refuse to permit remedy.

There are right to move on to the Supreme Court is itself a Fundamental Right while having
infringement of the rights and Supreme Court has itself duty to prosecute the fundamental
rights guaranteed by the Constitution. Normally, the Supreme Court cannot refuse to grand
this remedy. Anyhow, here is same condition in which Supreme Court refuse to grant the
remedy under Article 32. These are mentioned below;

31
  Res judicata- The principle of res judicata put on even in the case of petition under
Article 32. However, a petition under Article 32 for Habeas Corpus is an exception to
this general rule14. The Supreme Court cannot be moved more than once on the same
facts.15
It has been held by the Supreme Court that in the unavailability of new circumstances
arising because the dismissal of the petition field in Supreme Court under Article 32,
a fresh petition under Article 32 on the same matter cannot be filed in the Supreme
Court16. It is to be notable that a partition filed in the Supreme Court under Article32
and dismissed by it on suit by a speaking order will also be operative as res judicata,
even though order has been made ex parte.
 Non-Fundamental Rights Issues: Article 32 is specifically meant for the enforcement
of fundamental rights guaranteed under Part III of the Constitution. If the issue raised
in the petition does not pertain to fundamental rights, the court may not permit a
remedy under Article 32.
 Personal Disputes: The Supreme Court may refuse to entertain a petition under Article
32 if the matter is of a private or personal nature and does not involve a substantial
question of public importance or violation of fundamental rights.
 Academic or Hypothetical Questions: The court may not permit a remedy under
Article 32 for academic or hypothetical questions that do not involve any actual
infringement of fundamental rights.
 Delay- The Court may refuse to grant relief where there is no reasonable explanation
for the delay. However, this is not a rule of law but a rule of practice based on the
Court’s discretion and this discretion is to be exercised in the light of the
circumstances of each case.17
 Malicious petition- Under Article 32, if the petition filed in the Supreme Court is
found to be malicious or ill-motivated, it may be dismissed by the Supreme Court18.
 Misrepresentation or Suppression of Material facts- The Supreme Court may dismiss
the petition at any stage, where the petitioner is found to have made it clear
misrepresentation as to the material facts.19

14
Ghulam Sarwar v. Union of India, AIR 1967 SC 1335.
15
Niranjan v. State of M.P.; (1972) 2 SCC 542.
16
Lakhanpal v. Union of India, AIR 1967 SC 908.
17
Ram Chandra v. State of Maharastra, AIR 1974 SC 259.
18
Kini v. Union of India, AIR 1985 SC 893.
19
Welcome Hotel v. State of A.P., AIR 1983 SC 2237.

32
  Existence of adequate alternative remedy- It does not bar the Supreme Court to
entertain a petition under Article 32. 20 That’s why the Supreme Court has held that in
the case of adequate alternative remedy it may exercise its discretion deny to entertain
a petition filed under Article32.

Article 32 of Indian Constitution be amended under Article 368

Firstly, Article 32 is a part of the basic structure of the constitution and that cannot be restrict
or seized away even by way of modification of the constitution, that had ruled by Supreme
Court. So, Article 32 cannot be amended by Parliament under Article 368.

If we noticed that it can be amended but here the point is that it will be subject to judicial
review by Supreme Court of India. If Court disclose out that is contradict with the basic
structure of our constitution at that time it will be stated null and void by the Supreme Court.

 In Kesavananda Bharti v. State of Kerala21 once again there are amendable of

fundamental rights came before the court, is that the court will now rule by majority
and that Parliament is competent to amend under Article 368 fundamental rights just
as any other part of the Constitution, subject to the doctrine that the ‘basic’ or
‘fundamental’ features of the Constitution which cannot be amended.
Importance of keshavananda bharti case in constitution
 The Keshavananda Bharati case, formally known as Kesavananda Bharati
Sripadagalvaru v. State of Kerala (1973), is one of the most significant and
landmark judgments in the constitutional history of India. Its importance lies
in several aspects that have had a lasting impact on the interpretation and
evolution of the Indian Constitution. Here are some key reasons why the
Keshavananda Bharati case holds immense importance:
 Doctrine of Basic Structure: Perhaps the most crucial contribution of the
Keshavananda Bharati case is the establishment of the "Doctrine of Basic
20
S.H. Kachuni v. State of Madras, 1959 SCR 725.
21
Writ Petition (Civil) No. 135 of 1970, 4 SCC 225

33
 Structure." The Supreme Court, in this case, held that while Parliament has
the power to amend the Constitution under Article 368, it cannot alter its
"basic structure" or "essential features." The court identified certain core
principles that form the foundation of the Constitution and declared them
immune to constitutional amendments. This doctrine serves as a safeguard
against arbitrary changes to the Constitution that might undermine its basic
tenets.
 Protection of Fundamental Rights: The case reaffirmed the significance of
fundamental rights enshrined in Part III of the Constitution. By incorporating
the basic structure doctrine, the court ensured that fundamental rights would
remain protected and immune from dilution through constitutional
amendments. This further strengthened the position of fundamental rights as
the cornerstone of the Indian democratic system.
 Judicial Review: The Keshavananda Bharati case solidified the power of the
judiciary to review and strike down constitutional amendments if they violate
the basic structure of the Constitution. This reaffirmed the role of the
judiciary as the guardian of the Constitution and the final interpreter of its
provisions.
 Preserving the Federal Character: The case emphasized the federal
character of the Indian Constitution. The court declared that any amendment
that fundamentally alters the federal structure of the Constitution would be
invalid. This decision played a crucial role in maintaining the delicate balance
between the Union and the states in India's federal system.
 Stability and Continuity: The judgment provided a degree of stability and
continuity to the Indian Constitution. By protecting its basic structure, the
court ensured that the Constitution could adapt to changing times through
amendments without losing its essential character.
 Public Trust in the Judiciary: The Keshavananda Bharati case is often cited
as an example of the judiciary's independence and willingness to safeguard
the Constitution's integrity. It bolstered public trust in the judiciary as a robust
and impartial institution

 The majority ruled that while Parliament can amend any constitutional provision by
virtue of article 368, such power is not unrestricted and unlimited. And the Court can
34
 still arise question that whether or not an amendment violates a ‘fundamental’ or
‘basic’ features of the constitution. An amendment which does so will be
constitutionally worthless.
 Maneka Gandhi v. Union of India (1978) 22: This case is a watershed moment in
Indian jurisprudence, particularly concerning the right to personal liberty (Article
21). The Supreme Court held that the procedure established by law must be fair, just,
and reasonable. This expanded the scope of Article 21 and laid down the principle
that the right to life and personal liberty cannot be deprived arbitrarily.
 Article 368 account the expression ‘amend’ and which has a restrictive essence and
cannot comprises a fundamental transition in the Constitution.
 So, that article 368 the amendment of the constitution could not have the effect of
wrecking or abrogating the basic structure of the constitution.
 ADM Jabalpur v. Shivkant Shukla (1976) (Habeas Corpus case)23: Though this
case is often criticized for upholding the suspension of the right to approach the
courts for enforcement of fundamental rights during an emergency, it also brought
attention to the importance of fundamental rights and their protection.
 Vishakha v. State of Rajasthan (1997)24: In this landmark case, the Supreme Court
formulated guidelines for preventing sexual harassment of women at the workplace.
The court filled a legislative vacuum by asserting the fundamental right to gender
equality (Article 15) and the right to live with dignity (Article 21).
 Naz Foundation v. Government of NCT of Delhi 25 (2009) (Section 377 case): The
court, in this case, held that Section 377 of the Indian Penal Code, which criminalized
consensual homosexual acts, violated the fundamental rights to equality (Article 14)
and personal liberty (Article 21). This judgment marked a significant step towards
recognizing and protecting LGBTQ+ rights in India.
 Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) (Aadhaar case): In this
landmark case, the Supreme Court upheld the right to privacy as a fundamental right
under Article 21. The judgment recognized privacy as an intrinsic part of human
dignity and personal autonomy.

22
AIR 1978 SC 597
23
AIR 1976 SC 1207
24
(1997) 6 SCC 241
25
(2009) 160 DLT 277

35
  In Minreva Mills v. Union of India 26; The Supreme Court by 4:1 majority struck
down clause 4 and clause 5 of Article 368 as these clauses destroyed the basic
structure of the constitution and held that there are four basic structure of the
Constitution and are as follows;
 Limited power of Parliament to amend and the constitution.
 Harmony and balance between the Fundamental Right and Directive
Principle of State Policy.
 Fundamental Right in certain cases.
 Power of judicial review in certain cases.
 In Golakhnath v. State of Punjab; The Supreme Court over ruled its
earlier decision. The Apex Court held that no authority including the
parliament can amend the Fundamental Rights.

CONCLUSION

As we know that India has lengthiest written constitution. There must be fundamental rights
which is applicable on the citizen of India. But after doing research the researcher found that
there is also provided same remedy for the protection of fundamental rights. Supreme Court
of India act as protector and guarantor of fundamental right. Supreme Court has given
supreme power to control and protect the infringement of fundamental rights.

Article 32 is a right guaranteed by the constitution to move in the Supreme Court by

appropriate proceedings for the enforcement of the fundamental rights. It is to be noted that
an application under article 32 cannot lie where no fundamental right has been violated. That
is why the supreme court has duty to enforce the fundamental rights and also it is known as
the protector and guarantor of the fundamental right.

It is to also mentioned that while the infringement of the fundamental right is in the condition
precedent for presenting a petition to move supreme court under article 32 but here there is no
need to justify actual violation of fundamental right. At a moment a petition will lie if there is
imminent danger of the infringement of fundamental right.

26
Minerva Mills Ltd. & Ors. v. Union of India & Ors. AIR 1980 SC 1789 (1980) 3 SCC 625

36
It is very interesting to know about the fact that article 32 gives power to the supreme court to
issue writ in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari
for the enforcement of the fundamental rights. It is also noticed while doing this research
article 266 makes it clear that the High Court has power throughout the territories in relation
to which it exercises jurisdiction which is issued on any person or authority including in
appropriate cases by any Government within those territories directions, orders or writs for
the enforcement of the fundamental right. It is also clearly expressed that the Supreme Court
has been constituted as the defender and guarantor of the fundamental rights of the citizens.

It is mentioned under article 226 of constitution, High Court has power to issue such writs
and order which are necessary for administrative action and judicial or quasi-judicial action.
Power of High Courts to issue any person or authority, including in appropriate case any
Government, orders and writs, for the enforcement of any of the rights conferred by Part III.
It is a constitutional right.

By enlarging the scope of Article 32 and Article 226, judiciary has brought justice and
revolutionized constitutional jurisprudence. Judiciary should act as a lighthouse, not a
destination in itself. It should also work in a self- reliant and self- restrained manner. It makes
the Constitution a living, dynamic document. Judicial review in constitution interpretation is
a healthy trend. Also Check and balances is also applicable to Judiciary for a healthy
democracy

BIBELIGRAPHY

1. Book: "The Supreme Court and the Idea of Constitutionalism" by Steven Kautz

2. Book: "The Supreme Court and Individual Rights" by David J. Bodenhamer

3. Article: "Guardians of Liberty: The Role of the Supreme Court in Preserving Civil
Rights and Liberties" by Kermit L. Hall

37
  This scholarly article analyzes landmark Supreme Court cases related to civil
rights and liberties and examines the Court's influence in protecting
fundamental rights.

4. Article: "The Supreme Court and Fundamental Rights" by Upendra Baxi

5. Book: "Constitutional Rights: Moral Controversy and the Supreme Court" by Michael
J. Perry

 In this book, the author discusses the moral dimensions of constitutional rights
and the Supreme Court's responsibility in interpreting and protecting them.

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