A right without a remedy does not have much of a substance. The Fundamental Rights guaranteed by the Constitution would have been nothing if it had not provided with effective mechanism for its enforcement. Art. 32 confers Supreme Court to enforce our Fundamental Rights. Where Art. 32(1) talks about the appropriate proceedings, Art. 32(2) talks about empowering the Supreme Court to issue orders or directions or writs including writs of nature such as, Habeas corpus, Mandamus, Prohibition, Quo warranto and Certiorari, whichever is appropriate for enforcement of petitioner’s rights. Writs do not lie to create or establish a legal right, but to enforce a Fundamental Right that has already been established.
- Habeas Corpus
- Mandamus
- Prohibition
- Quo Warranto
- Certiorari
(a) Habeas Corpus – The basic aim of the writ of Habeas Corpus is to secure the release of a person who has been detained unlawfully or without legal justification. The great value of this is that it enables an immediate determination of person’s Right to freedom. Because the court regards personal liberty as one of the most cherished values of mankind, the Supreme Court in Icchu Devi v. UOI 1held that, in case of application of this writ, the court does not as a matter of practice, follow strict rules of pleading. Even a post card by a detenu from jail is sufficient to let the court enter into legality of detention.
(b) Mandamus – Mandamus is a command issued by a court commanding a public authority to perform a public duty concerning its office. It is issued to enforce performance of public duties by authorities of all kinds. The object is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and where justice despite demanded has not been granted. It can be granted only when a legal duty is imposed on the authority in question and the petitioner has a legal right to compel the performance of this duty which it is be imperative and not discretionary.
(c) Prohibition – Writ of prohibition is issued to an inferior tribunal prohibiting it from carrying on with the proceeding on the ground that it is in exclusion or exceeding its jurisdiction or contrary to the laws of the land, statutory.
(d) Quo Warranto – The writ lies only in respect of public office of a substantive character. To file a petition for a Quo Warranto, it is not necessary that he should have suffered a personal injury himself, or should seek to redress a personal grievance.
(e) Certiorari – It is issued to quash a decision after it is taken by a lower tribunal. The Supreme Court has emphasized that a writ of such a nature is wholly in appropriate relief to ask for when the constitutional validity of legislative measure is being challenged. The proper relief in such a case would be a declaration that a particular law is unconstitutional and void.
Art. 32 being a Fundamental Right itself has a broad canvas and cannot be diluted or whittled down by any law. It can be invoked even when a law declares a particular administrative action as final (Gopalan v. State of Madras, Prem Chand v. Excise Comm.). This means that power of the Supreme Court under Art. 32 is plenary and not fettered by any legal constraints. If in exercise of these powers, the court commits a mistake, court has the plenary power to correct it (S. Nagaraj v. State of Karnataka).
Art. 32(2) confers power on the court in its widest term.
“It is not confined to issuing the high prerogative writs”, but “it is much wider and includes within its matrix power to issue any direction, orders or writs which may be appropriate for enforcement of fundamental right in question”(AIR 1984 SC 814).
VIEW OF THE SUPREME COURT
The Supreme Court has diluted the efficacy of Article 32 as a technique to challenge a decision by Quasi Judicial Body. In Ujjam Bai v. State of U.P., the court has held that an assessment of sales tax by Quasi Judicial Authority, acting within its jurisdiction and under an intra vires law, could not be challenged under Article 32 on ground that it has misconstrued or misinterpreted the law, because no breach of any Fundamental Right was involved in such a situation. Such an error can be corrected by way of appeal to Supreme Court.
The court has power to decide disputed questions of an act arising in writ petition if it so desires (K. K. Kochunni Moopil Nayar v.State of Madras). The reason for this judicial stance is that disputed question of fact can be decided properly by examining the pleadings raised by the parties and by taking evidence and such a course not possible in a summary proceeding like that of a writ petition under Article 32.
Laches or inordinate delay on the part of the petitioner may disentitle him to move writ petition under Art.32 to enforce his fundamental right. The court refuses relief to the petitioner on the ground of laches. Because of several consideration unless there is reasonable explanation of the delay. The aggrieved party should, therefore, file the petition at the earliest possible time. But there can be exceptional situation where doctrine of laches may not be taken into account. Each case must depend on its own facts (R.S. Deodhar v. State of Maharashtra). Therefore, there is no fixed period of limitation applicable. The Apex Court thus applies the rule of Laches in a flexible and not a rigid manner.
By and large fundamental rights are enforceable against the State. The term State has been defined in Art.12. There are few fundamental rights such as under Arts.17, 21, 23 or 24 which are also available against private persons. In case of violation of any such rights, the court can make appropriate orders against violation of such rights by private persons.
Over a period of time, the Supreme Court has been taking a liberal view of locus standi. Art.32 confers a good deal on freedom on the SC to involve its own rules of locus standi. The petition for a writ of Habeas Corpus which can be made not only by the person who is imprisoned or detained but by any person provided he is not a complete stranger for liberating a person from illegal imprisonment (Subramaniam Swamy v. JJ Board). The rule of standing is also relaxed in case of petition for quo warranto.
Why are Fundamental Rights not being enforced?
Fundamental rights constitute a significant part of the Constitution of India. Fundamental rights are justiciable and guarantee that if one’s right has been violated, he may approach the court for its enforcement using Article 32 which is again a Fundamental Right itself.
This is important since a Fundamental Right cannot be abridged or repealed even by the way of a constitutional amendment, if it is considered to be a basic feature of the Constitution. The petitioner has a choice to move up to the High Court or Supreme Court under Art. 226 and Art 32, respectively. While discretion of the High Court is wider in terms of writ power, Supreme Court has to limit its power to contravention of Fundamental Rights.
As it is well known that Article 32 was called the “soul of the constitution and very heart of it” by Dr. B.R. Ambedkar, it is embedded by the Supreme Court in its structural doctrine.
Art. 32 makes Supreme Court the defender and guarantor of the Fundamental Rights by giving the power to issue writs under the Original Jurisdiction which otherwise is not a thing if not done by the means of appropriate procedure as under Art 32(1). One would have to struggle for urgency and important matters from the ladder below which might take them unforeseeably long.
If the Fundamental Rights are enforced then there would not be any difference between the lower courts and the apex court. The writ petitions have to be filed when there are no other remedies and when your Fundamental Right is violated. The Supreme Court has been given special powers by means of writs to protect your basic rights and being the apex of all, the crucial matters have to be handled with efficacy. If there are matters lined up in case there is no provision of Art 32 to enforce other Fundamental Rights, it would create a ruckus in the present scenario where many file false cases and cases just for the sake of it.
Here's video of writs under Indian Constitution-
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