Right To Constitutional Remedies in Indian Constitution: Overview and Limitations

Right To Constitutional Remedies in Indian Constitution: Overview and Limitations

Question: Violation of fundamental rights such as free speech is being challenged in court in recent times. Provide an overview of the constitutional provisions for rights to constitutional remedies and their limitations.

Overview

• Article 32 of the Constitution of Indian provides for constitutional remedies against violation of fundamental rights

• Fundamental rights are of greatest importance to individuals

• Clause 2 of A32 has also provided for SC to issue writs and act as the protector and guarantor of fundamental rights

• The right to constitutional remedy is in itself a fundamental right

• Apart from the SC, the HC also protects fundamental rights

• Writs can be issued for enforcement of fundamental rights under A226 of the constitution

• SC can issue writs in case of infringement of fundamental rights; HC was given wider powers but less territorial jurisdiction to issue writs

• There are 5 types of writs which the HC and SC can issue:

- Habeas Corpus: Writ is a protection against violation of personal liberty and freedom; it protects against arbitrary arrest and detention

- Mandamus: This writ calls upon public servants to fulfil their duties

- Prohibition: Writ is issued by higher court to prevent lower court from overstepping its jurisdiction

- Certiorari: It compels lower courts to submit proceedings recordings to higher courts

- Quo warranto: Writ determines legality of person’s claim to public office

Limitations

• Right to constitutional remedies under A32 are not without limits

• Exceptions to A32 include the following:

- A33 empowers the Parliament for applying fundamental rights in a modified manner to police and armed forces to enable effective discharge of their duties

- A34 holds that under operation of Martial law in areas, parliament can indemnify persons in service of centre or state to act for law and order restoration and maintenance of the same

- Fundamental rights such as right to constitutional remedies are suspended during the proclamation of emergency under A352

- A359 empowers the President to suspend the right to move court for restoration of fundamental rights i.e it suspends A32 of the constitution

- But the Parliament has the right to disprove such a presidential order as well

Facts and Stats

• A32 was referred to as the “very soul of the constitution and the very heart” of it by B. R. Ambedkar

• The following 4 sections of A32 are important:

- Article 32(1): Guarantee to remedy
- Article 32(2) : Power of SC and HC to issue writs
- Article 32(3) : Power of parliament to confer the power to issue writs to other courts
- Article 32(4) : Suspension of Fundamental Rights.

• A32 uses the power of original jurisdiction of the SC