Article 32: Heart and Soul of the Constitution

Fundamental Right to Constitutional Remedies

Article 32 of the Constitution of India provides the right to move the Supreme Court for the enforcement of Fundamental Rights. It is a fundamental right itself, guaranteeing the right to constitutional remedies.

Provision:

Article 32(1) states: "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed." This means that if any of the Fundamental Rights (contained in Part III of the Constitution) are violated, an aggrieved person can directly approach the Supreme Court for a remedy.

Article 32(4) states that the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. This refers to the suspension of the enforcement of certain Fundamental Rights during a National Emergency, as provided under Article 359 (subject to the limitations introduced by the 44th Amendment excluding Articles 20 and 21).

Significance:

Dr. B. R. Ambedkar famously called Article 32 the "most important Article of the Constitution—an Article without which this Constitution would be a nullity. It is the very soul of the Constitution and the very heart of it."

Its significance lies in the fact that it makes the Fundamental Rights real and effective by providing a guaranteed remedy for their enforcement. Without this right to constitutional remedies, the Fundamental Rights would be mere declarations without any means of ensuring their respect and implementation.

Power of Supreme Court to issue Writs

Article 32(2) empowers the Supreme Court to provide the remedy for the enforcement of Fundamental Rights by issuing directions, orders, or writs.

Article 32(2) states: "The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part."

This grants the Supreme Court original jurisdiction in matters involving the violation of Fundamental Rights. It is the first court that can be approached for such cases, although High Courts also have concurrent writ jurisdiction under Article 226.

The Supreme Court has held that the power conferred on it by Article 32 is an integral part of the basic structure of the Constitution and cannot be taken away even by a constitutional amendment.

Furthermore, the Supreme Court cannot refuse to exercise its jurisdiction under Article 32 on the ground that the applicant should first approach a High Court under Article 226. This is because Article 32 itself is a Fundamental Right, and the Supreme Court is the guarantor of Fundamental Rights.

Types of Writs

Article 32(2) lists five types of prerogative writs that the Supreme Court is empowered to issue for the enforcement of Fundamental Rights. These writs are borrowed from English law.

Habeas Corpus

Literal meaning: 'To have the body of'.

Issued by the court to a person who has detained another person, directing the detainer to produce the body of the latter before the court. The court then examines the cause and legality of the detention. If the detention is found to be illegal, the court orders the release of the detained person.

It is a bulwark of individual liberty against arbitrary detention, whether by the State or by private individuals. It is issued to secure the release of a person unlawfully detained.

Mandamus

Literal meaning: 'We Command'.

Issued by the court as a command to a public official, public body, corporation, inferior court, tribunal, or government, directing them to perform a specific public duty that they are legally required to perform but have failed or refused to do. It is a command to act.

It is used to enforce the performance of public duties by public authorities and ensures that they act according to law.

Prohibition

Literal meaning: 'To forbid'.

Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or from usurping a jurisdiction that it does not legally possess. It is issued during the pendency of proceedings in the lower court.

It is a preventive writ, aimed at stopping the lower court from acting beyond its legal authority.

Certiorari

Literal meaning: 'To be certified' or 'To be informed'.

Issued by a higher court to a lower court, tribunal, or quasi-judicial authority to quash (cancel) the order passed by the latter, or to transfer a case pending before it to the higher court. It is issued after the lower court has made a decision.

It is a corrective writ, used to correct errors of jurisdiction or errors of law apparent on the face of the record made by the lower court/tribunal. Originally limited to judicial and quasi-judicial bodies, its scope was extended to administrative authorities affecting the rights of individuals.

Quo Warranto

Literal meaning: 'By what authority or warrant'.

Issued by the court to inquire into the legality of the claim of a person to a public office. It prevents illegal usurpation of a public office by a person.

It is issued against a person holding a public office of a substantive nature created by a statute or the Constitution.

It is used to determine whether a person is legally entitled to hold the office they occupy.

These five writs are powerful instruments in the hands of the judiciary to ensure the protection and enforcement of Fundamental Rights against violation by the State.

Article 226: Power of High Courts

Jurisdiction of High Courts to issue Writs

Article 226 empowers the High Courts to issue writs, similar to the Supreme Court, but with a broader scope.

Provision:

Article 226(1) states: "Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation 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, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."

This means that High Courts can issue the same five writs as the Supreme Court.

Territorial Limits

The power of a High Court to issue writs is confined to its territorial jurisdiction. The High Court can issue writs against a person or authority residing or located within its territorial limits or against a government if its seat is within those limits.

However, the 15th Amendment Act, 1963, expanded this territorial limit. A High Court can now also exercise jurisdiction in relation to a government, authority, or person located outside its territorial jurisdiction if the cause of action wholly or partly arises within its territorial jurisdiction.

Difference between Article 32 and Article 226

While both articles provide for writ jurisdiction, there are key differences:

Feature	Article 32 (Supreme Court)	Article 226 (High Court)
Scope	Only for the enforcement of Fundamental Rights.	For the enforcement of Fundamental Rights and for 'any other purpose' (i.e., for enforcing any other legal right).
Nature of Right	It is a Fundamental Right itself. The Supreme Court cannot refuse to exercise this power for FR enforcement.	It is a constitutional right but not a Fundamental Right. The High Court may refuse to exercise this power (e.g., if an effective alternative remedy is available).
Jurisdiction	Original and exclusive for guaranteed enforcement of FRs.	Original and concurrent (shared with SC for FRs).
Territorial Reach	Covers the entire territory of India.	Limited to the territorial jurisdiction of the High Court (subject to the cause of action arising within its territory).

The power of the High Court under Article 226 is wider in scope (covering all legal rights) but not in territorial reach (except for cause of action) and not in the nature of obligation (not a guaranteed fundamental right to approach HC).

Scope and Limitations

The writ jurisdiction of the High Court under Article 226 is very broad but is not absolute and is subject to certain limitations.

Scope:

Enforcement of Fundamental Rights: High Courts are concurrent with the Supreme Court in the power to issue writs for the enforcement of Fundamental Rights.
Enforcement of Ordinary Legal Rights: The High Court can also issue writs for the enforcement of any other legal right which may arise under ordinary law, statute, or other legal source. This makes its jurisdiction wider than the Supreme Court's under Article 32.
Against Authorities: Writs can be issued against any person or authority, including the government (Central or State), within its territorial jurisdiction.
Territoriality: As discussed, the power is limited by territory, subject to the 'cause of action' exception.

Limitations:

Discretionary Power: Unlike the Supreme Court's obligation under Article 32, the High Court's power under Article 226 is discretionary. The High Court may refuse to exercise its writ jurisdiction, for instance, if an effective alternative remedy is available to the petitioner (e.g., appeal to a tribunal or lower court).
Not to Interfere with Domestic Tribunals: Generally, High Courts do not interfere with the internal proceedings of domestic tribunals or private bodies unless they are performing a public function or duty.
No Appeal against Interim Orders: In some cases, appeals against certain interim orders of High Courts in writ petitions may be restricted.
Res Judicata: Principles of res judicata may apply, preventing repeated filing of the same petition after it has been finally decided.
Doctrine of Laches: Unreasonable delay in filing a writ petition may lead to the High Court refusing to entertain it.

Despite these limitations, the writ jurisdiction of the High Court is a powerful tool for judicial review and the protection of rights, both fundamental and ordinary legal rights, and plays a crucial role in the administration of justice at the state level.

Writs in Detail: Conditions for Issuance and Grounds for Refusal

Habeas Corpus

Habeas Corpus is the most fundamental writ for safeguarding personal liberty.

When it is issued

Issued when a person is illegally detained by the State or by a private individual.
The detention must be unlawful (e.g., detention without authority of law, detention beyond the period prescribed by law, detention for an invalid reason).
It can be sought by the detained person or by any other person on their behalf (e.g., relative, friend).

When it is not issued

Where the detention is lawful.
Where the proceeding is for contempt of a Legislature or a court.
Where the detention is by a competent court.
Where the detention is outside the jurisdiction of the court.

The purpose is to immediately check whether the person is legally detained or not. It is a swift and summary remedy for illegal confinement.

Mandamus

Mandamus is a command issued to compel public authorities to perform their duties.

When it is issued

Issued to a public official, public body, corporation, inferior court, tribunal, or government.
Requires the authority to perform a public duty or a statutory duty that is mandatory for them to perform.
The applicant must have a legal right to the performance of the public duty.
The public authority must have refused or failed to perform the duty.

When it is not issued

Against a private individual or body (unless performing a public function).
To enforce a departmental instruction that does not have statutory force.
When the duty is discretionary and not mandatory.
To enforce a contractual obligation.
Against the President or the Governors (Article 361 provides immunity).
Against the Chief Justice of a High Court acting in a judicial capacity.

Mandamus is primarily used to compel the executive to act according to law and fulfil its public obligations.

Prohibition

Prohibition is a preventive writ issued by a higher court to a lower court or tribunal.

When it is issued

Issued by a higher court to a lower court or tribunal.
Issued to prevent the lower court/tribunal from exceeding its jurisdiction or acting without jurisdiction.
Issued only when the lower court/tribunal is in the process of hearing a case but has not yet delivered the final judgment.
Issued on grounds like lack of jurisdiction, excess of jurisdiction, violation of principles of natural justice, or unconstitutionality of a law being applied.

When it is not issued

Against administrative authorities (unless they are exercising quasi-judicial functions).
When the lower court/tribunal has already completed the proceedings and delivered the judgment (in such cases, Certiorari is the appropriate remedy).

Prohibition is purely a preventive writ, aimed at keeping judicial and quasi-judicial bodies within the bounds of their lawful authority.

Certiorari

Certiorari is a corrective writ issued by a higher court to a lower court, tribunal, or quasi-judicial authority.

When it is issued

Issued by a higher court to a lower court, tribunal, or quasi-judicial authority.
Issued to quash (cancel) the order passed by the lower court/tribunal or to transfer a case pending before it to the higher court.
Issued on grounds such as lack of jurisdiction, excess of jurisdiction, error of law apparent on the face of the record, violation of principles of natural justice.
Issued after the lower court/tribunal has already made a decision.

When it is not issued

Against legislative bodies or private individuals/bodies.
To correct a mere error of fact or a decision on the merits.

Difference between Prohibition and Certiorari

Feature	Prohibition	Certiorari
Stage of Proceeding	Issued during the pendency of the proceeding (Preventive).	Issued after the order is passed (Corrective).
Object	To prevent a lower court from exceeding jurisdiction.	To quash an order passed by a lower court exceeding jurisdiction or having error of law.

Both are issued against judicial and quasi-judicial bodies, but Prohibition stops the proceedings, while Certiorari reviews and quashes the final order.

Originally, Certiorari was only against judicial and quasi-judicial authorities, but its scope has been extended to administrative authorities affecting rights since the Ghaio Mal & Sons v. State of Delhi (1959) case.

Quo Warranto

Quo Warranto is used to inquire into the legality of a person's claim to a public office.

When it is issued

Issued to inquire into the legality of the claim of a person to a public office.
Prevents illegal usurpation of a public office.
The office must be a public office created by statute or the Constitution, and of a substantive character.
The person must be holding the office.
It can be sought by any interested person and is not limited to the aggrieved person.

When it is not issued

In respect of a private office or an office of a nominal nature.
Where the appointment is purely administrative.

Quo Warranto is a vital tool for ensuring that appointments to public offices are made in accordance with the law and the Constitution.

The writs collectively empower the higher judiciary to enforce constitutional limitations and protect the rights of individuals against illegal or arbitrary state action.