Introduction 

One of the defining principles of Common Law is “Ubi Jus, Ibi Remedium”. This maxim means “where there is a right, there is a remedy”. The right to a remedy has been acknowledged as a fundamental right in all legal systems historically.

Under Article 32 of the Indian constitution, every citizen of India has been given the right to seek constitutional remedy from the Supreme Court if they have been deprived of their fundamental rights. The Supreme Court is responsible for the administration of justice and also acts as the guardian of the constitution and the protector of fundamental rights. It would be meaningless to grant fundamental rights but not provide remedies for the enforcement of the rights if they are violated. 

This article discusses various aspects of Article 32, including historical and philosophical grounds, as well as the latest developments.

Historical background

The Indian Constitution in Part III (Article 12 to 35) contains the Fundamental Rights. It is the charter of freedom of the citizens of India. It is what the Magna Carta was; it contains the essential freedoms of the people of India. Article 32 is a constitutional safeguard for these rights. Dr B.R Ambedkar had referred to it as “the very soul of the Constitution and the very heart of it” during the Constituent Assembly debates.

H. M Seervai, the learned senior advocate and jurist in his works H.M. Seervai’s Constitutional law of India, noted that “it is not surprising that the Constituent Assembly found in these writs the most effective means of enforcing a fundamental right.”. Seervai further noted that – as long as these rights are not amended, the powers conferred by them cannot be taken away, any such law would be void under Article. 13. 

Constitutional philosophy of writs

If an administrative action arbitrarily violates fundamental rights, the remedy can be sought by approaching the courts. Writ jurisdiction is conferred through Article 32 and Article 226 respectively upon the Supreme Court and High Courts.
The right to constitutional remedy was considered by Dr. Bhim Rao Ambedkar as the heart and soul of the constitution. M. Patanjali Sastri, the 2nd CJI opined that the Supreme Court should regard itself “as the protector and guarantor of fundamental rights,” and should declare that “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection..”

Justice Gajendragadkar In the case Prem Chand Garg v Excise Commissioner said “Court has to play the role of a ‘sentinel on the qui vive’ and it must always regard it as its solemn duty to protect the said Fundamental Rights ‘zealously and vigilantly’.
In his judgment, in the case of Bandhua Mukti Morcha vs Union Of India & Others 1984 AIR 802, Justice P.N. Bhagwati highlighted the constitutional philosophy of the right to constitutional remedies – “the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress but would have the power to issue any direction, order or writ..”

Nature and scope of Article 32

Writs are prerogative remedies. Article 32 is itself a Fundamental Right and the Supreme Court’s jurisdiction under article 32 is mandatory by nature and not discretionary. The writ jurisdiction of High Courts are discretionary and intrinsic for other purposes. The Scope of Article 32 in comparison to Article 226 is limited. The Supreme Court can’t be approached for any other legal right other than fundamental rights. An important feature of Article 32 is that it is not found alongside other articles that define the Supreme Court’s General Jurisdiction (Article 124-147). 

A palpable question arises, can writs be maintainable against a party that ceases to act as a private entity and takes up roles of public nature? In the case of the Board of Control For Cricket vs Cricket Association Of Bihar, the Supreme Court examined the nature of public duties and functions, opening that BCCI as an organization performed “clearly public functions” as the nature of functions and duties undertaken were inherently public. 

Types of writs

Five types of writs are provided under the Indian Constitution which can be issued by the Courts. They are:

Habeas Corpus

The Writ of Habeas Corpus is issued in such cases by the courts when a person is detained illegally. The literal meaning of Habeas Corpus is ‘You have the body.” Providing a remedy against illegal detention is considered as most effective. By the Writ of Habeas Corpus, the Court can command to present before the court such a person who has been detained. The Court asks to provide the grounds for detention and failure to provide reasonable and valid grounds can lead to release immediately.

Rules related to the writ of Habeas Corpus

• Habeas corpus is filed by the detainee and the family members but the court may allow such applications by strangers as well. 

Landmark judgments

Mandamus 

The literal meaning of the word mandamus is command. The Writ of Mandamus is issued for the rightful performance of mandatory and purely ministerial duties and is issued by a superior court to a lower court or government officer to do an act or to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation, or any other type of administrative authority.
This Writ of Mandamus can be issued on the following grounds:

The Courts can refuse to issue the Writs in the following cases:

Landmark judgments 

Prohibition

This writ is as old as common law. The writ of prohibition means ‘to forbid or to prevent’. It is only available during the pendency of the proceedings and is not an often issued writ. It is an extraordinary remedy by which a Superior Court can direct an inferior court or tribunal or a quasi-judicial body to stop them from deciding upon a case because of lack of jurisdiction. If the court or tribunal lacks jurisdiction and still adjudicates the case, it will be considered invalid because it will be in excess of the sanction of law. The rigidity of writ has liberalized over time, and may also be issued on grounds of natural justice against anybody.
The writ of prohibition can be issued on these grounds:

 (i) The inferior court or tribunal has overstepped its jurisdiction;

 (ii) The court or tribunal is acting against natural justice;

 (iii) Unconstitutionality of a Statute;

 (iv) Violation of Fundamental Rights

Landmark judgments

Certiorari 

Certiorari is a Latin word that means “to certify”. The writ of Certiorari is correct in nature. ‘Certiorari’ is a judicial order issued by the Supreme Court to an inferior Court or quasi-judicial or any administrative body to transfer to the Court of records for their inspection and decide on the legality and validity and if the decision is in contravention of the law. The purpose of this writ is also to take affirmative action, it is both of preventive and curative nature.
The conditions necessary for the issue of the writ of certiorari are:-

Grounds for writ of certiorari:

Landmark judgments

Quo Warranto

‘Quo Warranto’ means ‘by what authority‘. The Writ of ‘Quo Warranto’ inquires into the legality of the holder of a public office and their authority. The writ of Quo Warranto is a method to review the proceedings of the actions of administrative authorities who have been appointed to public office. If it is held that the office holder has no valid title, then the writ of Quo Warranto is issued to oust the office holder. Equally, it also protects anybody holding a public office from being deprived of their legal right. This writ can also be filed by who is not the aggrieved person.
Conditions for Writ of Quo Warranto to be issued:

Landmark judgments

When Supreme court can refuse remedy

The right to move to the Supreme Court is a Fundamental Right under Article 32 whenever there is an infringement of the rights. The Supreme Court has a duty to protect and guard the fundamental rights guaranteed by the Constitution. However, there are some conditions under which the Supreme Court may refuse to grant the remedy:

• However, Habeas Corpus is an exception to this principle but it can’t be filed on the same facts more than once. 
• If a petition is malicious and if it is so found out, it may be liable to be dismissed.
• Petition can be dismissed at any stage, if the petitioner is found to have a misrepresentation of material facts.
• The existence of an alternate remedy is not an absolute Rule of Law and there can be valid exceptions. 32.

Article 32 and Article 226

Article 32 is a Fundamental Right, in comparison Article 226 is a constitutional right that gives the High Court’s discretionary powers. Article 226 clearly states that the High Court’s effectiveness is 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. The scope of Article 226 is broader than Article 32 as legal rights other than fundamentals can also be enforced through it.

Grounds of difference	Article 32	Article 226
Right	Article 32 is a fundamental right under Part III.	Not a fundamental right, it is a constitutional right.
Suspension	Can be suspended if an emergency has been declared by the President under Article 359.	Cannot be suspended even at the time of emergency under Article 359.
Scope	Limited scope and applicable only for remedy if fundamental rights are violated.	Article 226 has a broader scope and is applicable if either a fundamental right or a legal right has been violated.
Territorial Jurisdiction	Pan India Territorial Jurisdiction.	Empowers the High Court to issue a writ within its local jurisdiction and has a narrower territorial jurisdiction.
Discretion Power	Rights and remedies under it can’t be refused by the Supreme Court.	Article 226 gives the High Court’s Discretionary power, hence it is up to the wisdom of the high court to issue a writ or not.

Amendment of Article 32 under Article 368

Article 32 cannot be amended as it is a part of the basic structure of the constitution. In Kesavananda Bharati v. State of Kerala, the Supreme Court established the doctrine of basic structure and stated that the ‘basic’ can’t be amended. In L. Chandra Kumar vs Union Of India and Others, the bench declared Article 32 was an integral part of basic structure. Hence, Article 368 does not apply to Article 32. If it is arbitrarily amended it will be subject to judicial review and will be rendered null and void.

Article 32A was inserted into the constitution by the 42nd Amendment in 1976. Article 32A barred reviewing of State laws unless constitutional validity of Central laws was also an issue. Subsequently, the 43rd amendment repealed Article 32A after the end of the emergency.

Public Interest Litigation under Article 32

Citizens can file a Public Interest Litigation in the interest of public welfare in the Supreme Court under Article 32. PIL under Article 32 can also be taken up suo moto by the court itself. PIL cases do not have to be cases where the rights have been violated personally. PILs give power to the public to approach the courts for remedies through judicial activism. The petition filed by the petitioner filed in the public interest must be backed by satisfactory facts and grounds, else it may be considered frivolous.

The Rule of Locus Standi in cases of PILs are moderately applied when the petitioner is supposedly acting in a bona fide manner. A PIL must be in the larger public interest and not for motives of making pecuniary benefit or politically motivated or based on mala fide intent.

Supreme Court’s recent observations on Article 32

The supreme court in Siddique Kappan case of 2021, made an oral observation asking the petitioner’s reasons for not approaching the High Court first. The same Bench directed another petitioner to approach the High Court first. In a petition filed for relief of bail by P. Hemalatha owing to the health conditions of her husband, the Supreme Court directed the Bombay High Court to hear the bail plea. 

The Supreme Court in a contempt notice to the Assistant Secretary of the Maharashtra Legislative Assembly expressly mentioned that the right to approach the Supreme Court is a fundamental right and that “there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India would amount to serious and direct interference in the administration of justice in the country”. 

The procedure of filing writs petitions

For the filing of writ petitions in the Supreme Court under Article 32 the following procedure needs to be followed:

Conclusion

The Supreme Court is made the protector and guarantor of fundamental rights. It is provided with power and controls to provide remedies if these rights are infringed upon by Article 32 of the constitution. Dr. Ambedkar rightly heralded it as the ‘Heart and Soul of the constitution. From the above-cited facts, it can be understood that Article 32 stands for the equitable principle of natural justice. Furthermore, the writs allow Public Interest Litigations to be recorded for the larger interest of the public. A People’s Constitution based on the principle of a welfare state must limit arbitrary use of power. The Writs are one of the first essentials of constitutional democracy.