Right to Constitutional Remedies in India

Right to constitutional remedies in the part third of the Indian Constitution deals with fundamental rights. These rights secure the people of India the most basic human rights. These rights have been declared essential rights for the all-round development of the individual.

Fundamental rights represent the most valuable rights which are cherished by the people of this country from the Vedic period. These rights are made to protect the dignity of individual.

The original fundament right may be traced to the 13th century in England, the king in England was made by the people to give reorganization to certain rights of the Subject. This right cannot be overridden by the king or sovereign on whom all the power rides.

These fundamental rights are of no use if there is no law that gives enforcement power to them. Right to constitutional remedies provides enforcement to these fundamental rights through Articles 32 of the Indian constitution and 226 of the Indian Constitution. Where the fundamental rights run from Article 12 to 36. The State of India has no religion of its own, and it is Secular in the matter of religion but it does provide the people of its country to practice any religion by framing this as the fundamental right of people right to freedom of religion under 15 articles of the constitution. There are many other fundamentals given some of them are right to freedom, right to equality, right to property, and right against exploitation.

Right to Constitutional remedies, let’s learn about it –

 Article 32 of the Indian Constitution confers the most essential right to the people of India. This right empowers the Supreme Court to enforce the fundamentals by moving to the Supreme court of India.

These constitutional remedies enforcement is the most important and integral part of the basic structure of the Constitution. This simply means that it cannot be violated by any law, rule, legislation, by rule, Act, etc in from.

The Significance of this right can be known from the fact that Dr. Bhim Rao Ambedkar had observed.

If someone asks me which is one of the most important articles in the entire constitution of India, it will be a nullity.  I could not refer to any other article except right to constitutional remedies. It is the very soul of the Constitution and the very heart of it.

In the case of Prem Chand Garg vs Excise Commissioner, article 32 has been described as the corner Stone of the democratic edifice raised by the Constitution.

Legal Provision of Article 32 of the Constitution, Right to Constitutional Remedies.

The Provision reads as under –

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by part III of the constitution.
• The power vests with the Supreme Court of India to issue directions, orders, or writs such as a writ of habeas corpus, writ of quo warranto, writ of prohibition, writ of mandamus, and writ of certiorari.
• The writ is to be issued depending upon the appropriateness for the enforcement of right to constitutional remedies.
• The power has been conferred on the Parliament of India to confer power provide under clauses 1 and 2 of article 32 on any other court for exercising them within the local limits of its Jurisdiction without prejudice to the power of the supreme court.
• The guaranteed right of this article cannot be violated in any condition except the grounds provided by the Constitution.

What do we mean by the term Writ? The Right to Constitutional Remedies

According to Merriam Webster writ is a formal document that is mandatory and is issued by the sovereign or court of law commanding the person to whom it has been issued from the act or has been directed to refrain from performing the act.

The Britannica Dictionary describes the word writ as a document from the court ordering someone to do something or not to do something.

Legal Provision of Writ Within Article 32 of the Constitution for the Right to Constitutional Remedies

The power of the supreme court under article 32 of Indian constitution is confined in nature to that given under article 226 of Indian constitution.  

The constitution of India gives its citizen the right to approach the judiciary to get their fundament right enforced. They are basic human rights that give the people right to live with dignity.

The which are fundamentals are the right related to freedom, the right to equality, the property right, the right against exploitation, right to freedom of religion.

For the enforcement of them, provision has been made, in the shape of writ jurisdiction of the High court and Supreme Court. 

The writ which is commonly issued by the court is the name writ of habeas corpus, writ of quo warranto, writ of prohibition, and writ of certiorari, these all are rights to constitutional remedies and enforcement tools for the people of India.

Provisions 32 are Made as the Right to Constitutional Remedies

The right to move the Supreme Court by the appropriate procedures for the enforcement of fundaments rights.

The power is given to the apex court by the provision to direct, order or issue writs, according to the appropriateness of the matter for the enforcement of fundamental rights.

Clause 3 of 32 says that power has been vested in the parliament of India to confer this power on any other court, to be exercised within the local jurisdiction of that Court. This will be without any prejudice to the power given to the Supreme Court.

The right guaranteed by this article cannot be suspended, except on the grounds mentioned in the Constitution.

Provisions of Article 226, The right to constitutional remedies .

The scope writ jurisdiction conferred by this article is much wide than 32. The High courts have been given the power to issue the writs not only for the enforcement of the fundamental right but for another purpose.

The concept of writs in India has been borrowed from English law, but techniques of these are not followed.  The writs are commonly used in that matters where the ordinary legal remedy is not sufficient, or we can put it like these are issued in exceptional circumstances.

Clause 1 of the article says that it can be issued by the high courts to the person or authority within those territories about which it exercises jurisdiction.

Clause 2 speaks that High Courts can issue them to any authority located outside the limits of the territorial jurisdiction of the High courts, if the cause of action, wholly or in part, arises within its jurisdiction.

Right to Constitutional Remedies Under Writ Jurisdiction of Court.

The writ judication of the Supreme Court is provided under article 32 and of high courts under 226 which is discretionary, but this discretion is guided by certain factors. Which are as follows –

• Principal of Locus Standi – the meaning of this phrase is the right to bring an action in the court of law.
• Availability of Alternative Relief –The remedies which are there in common law provision.
• Principal of Res Judicata –  The term means the case if decided once cannot be heard again.
• Involvement of question of fact –  The dispute which involves the fact of law or fact of question.
• Laches –  means a delay in getting the remedy.

Types of writs, for enforcing the right to Constitutional remedies.

Different writ to enforcing includes: 

• Habeas Corpus –

The term Habeas Corpus means “you may have the body”. The writ is issued in the form of an order issued by the High Courts by which a person is called to produce the detainee before the court. This writ is described as the ex debito justiae.

The object of this is to give a quick remedy to the person whose detention is illegal or not by the procedure established by the law.

To make it better to understand we are taking illustrations to under the right to constitutional remedies .

A is wrongfully detained by the police officer. The place of detention and reasons for the same has not to be made clear either to the detainee nor to the family of the detainee. Therefore, the wife of A has approached the High Court of the place where there resides by way of getting filed the writ of Habeas Corpus.

Let’s learn some rules about the right to constitutional remedies –

• The person must be in custody or detention
• Generally, an application for issuing this writ is filed by the family or the detainee himself, but the court does allow strangers to get it issued in certain circumstances.
• The manner of getting it issued can be formal or informal application, the court will accept it on the merit of the case. In the case of Sunil Batra vs Delhi Administration, the prisoner himself enforce his right to constitutional remedies through the postcard written by the detenue which is converted into a petition of habeas corpus by the court as the right to remedies.
• If the application of writ is rejected by the court you cannot move it to the other judge of the same court.
• This writ will be applied in case of an arrest made by the police when the essential formalities and procedures are not followed during the arrest.

Writ of Mandamus like the Right to Constitutional Remedies

The term Mandamus means “the Order”. This is writ is like a command issued by the Court, asking a public authority to perform the duties cast on them.

The essence of the mandamus, in English law, is the royal command, which directs the public to perform a public duty.

This writ is public law remedy, and it can be issued against a private body. The Mandamus is issued, in the case in which legal duty is imposed on the public authority, and in the performance of those duties, the petitioner has the legal right. It usually lies when there is a failure of performance of duty on the part of public authority.

In the case of Union of India vs C Krishna Reddy, that reward to the government servant for the seizure of contraband declared under the scheme or policy of the government of India cannot be considered as a matter of right and no mandamus can lie to the government to give the amount.

Continuing Mandamus –

The issues of the mandamus are of no use if the authorities are merely asked to perform their task. So that it is assured that authorities do their work expeditiously, the court of apex has found a tool in the name of Continuing habeas corpus mandamus prohibition certiorari for constitutional remedies.

These orders are issued on time-to-time bases, by which agencies are required to report the progress of the investigation or to monitor the progress of the matter.

Writ of Quo Warranto –

The meaning of the Quo Warranto is “What is your authority” or Warrant your Authority”

The writ is issued for the holder of the public authorities calling upon him to show by what authority he is holding the office.

The whole object of the writ is to confer jurisdiction upon the judiciary to control the executive action in the making of the appointments to public officers.

The writ of quo Quaranto lies-

• When the office is questioned is public
• It applies to offices that are substantive in nature, an independent office.
• The holder is not legal y entitled to the position

For instance, in the case of GD Karkare vs  TL Shaved – the writ of quo warranto is issued against the advocate general, who is found to be ineligible to hold the office, this writ is used as the right to constitutional remedies.

Writ of Prohibition –

The literal meaning of the word is “to prohibit” this writ is issued primarily for the subordinate courts. when they exceed the jurisdiction or in the matter when they had acted contrary to the provision of the law.

This writ is jurisdictional, it prevents the court’s form from bypassing its jurisdictional powers.

Writ of Certiorari –

The Certiorari means to certify. This writ orders the inferior court or tribunal to transmit the record pending before it for security. The writ lies against the judicial and quasi-judicial bodies.

Conclusion

Right to constitutional remedies is the golden rule of constitutional law. When there is a violation of the fundamental right or legal right of the person he/ she can move to the supreme court or high court for the enforcement of rights.

 

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