Proper to Constitutional Cures: Coronary heart and soul of the Structure

Tap to follow:

Right to Constitutional Remedies: Heart and soul of the Constitution written by Ashwin Pandey student of West Bengal National University of Juridical Sciences


Part III of the Constitution of India guarantees certain fundamental rights to all of its citizens, these rights include the right to freedom (as illustrated by article 19 ), the right to equality (as can be seen by articles 14 and 15 ), right against exploitation (as enumerated in articles 23 and 24 ), etc. These rights play a major role in helping preserve and promote the rights of the individuals, as well as promoting equality. But simply declaring these rights would not be able to ensure that they continue to exist through the trials and tribulations of political life, the makers of the Constitution realized that if these rights were to be truly made available to the people, it was crucial that it made these rights enforceable by the judiciary in order to prevent the laws from remaining mere paper laws. It is with this realization that a right without a remedy is nothing more than a meaningless formality that the right to constitutional remedies was brought about in India.
This right to constitutional remedy is talked about in article 32 of the Constitution, meaning it is a fundamental right in itself, making it a provision that is unique to the Constitution of India. Under this article, if a person believes that they have been deprived of any of their fundamental rights, they have the right to approach the supreme court in order to get the required legal remedies and get their rights enforced. Further, it gives the Supreme Court, or any other court empowered by parliament, the power to enforce these fundamental rights of the people through relevant instruments such as the issuance of writs. The right to Constitutional Remedies is something that has been described in Ram Singh V. State of Delhi as a privilege and duty of the court in order to ensure that the “rights intended to be fundamental are kept fundamental”, similar sentiments were echoed by the court in State Of Madras vs V.G. Row. It was also stated in Romesh Thappar V State of Madras that the protection of the liberties of the people lies at the very center of preserving a democratic way of life. The only exception to the right to constitutional remedies that exists is- in a situation where the President declares a national emergency under Article 352 of the Constitution then this right gets suspended for the people, this means that even if someone believes that their fundamental rights have been infringed, they will be unable to approach the Supreme Court to enforce the same.
Even though this exception has been widely criticized, the makers of the Constitution believed that it is a necessary evil because the interests of the individual cannot be allowed to interfere with, or harm, the interests of the state at large, and in pursuance of the same the right to constitutional remedy can be curtailed in such exceptional circumstances.
Article 32 can also be used by the courts to award adequate compensation, the court reasoned that by providing monetary compensation, any similar acts will be deterred in the future. The court used Article 32 to provide compensation in cases such as Rudul Shah V. Union of India and Bhim Singh V. State of Jammu and Kashmir and reiterated that if they are not allowed to do so under Article 32 then it would render the article useless in M.C Mehta.


As we have already discussed, in order to be able to enforce the fundamental rights of the people, the courts have been armed with certain instruments. The most important one of them being the power to issue writs.
A writ refers to a written order by a court with relevant jurisdiction which the court uses to command a particular body to perform a specified act or abstain from performing an act. As we have already seen, the Supreme Court retains the right to issue writs under Article 32, but this power is not exclusive to the apex court. The High Courts of appropriate jurisdiction also have the power to issue writs as provided by Article 226 of the Indian Constitution, and this power is not to be conferred to the High Courts in derogation of Article 32.
With regards to the jurisdiction of the High Court to use Article 226 to issue writs, it had initially been laid down in the Khajoor Singh case as well as the Saka Venkata Rao case that the authority or government against whom the writ is to be issued need to be located within the territorial jurisdiction of the High Court. This position was altered by the 11th Amendment of 1961 which stated that any high court within whose jurisdiction the cause of action arose would be allowed to issue writs.
The power to issue writs is wider for the High Courts than it is for the Supreme Court, this can be seen from the fact that while the Supreme Court can only use its writ jurisdiction to enforce the fundamental rights of the people, the High Courts have been given the power to issue writs to uphold not only fundamental rights but other Constitutional as well as legal rights. An instance of the High Courts using their writ jurisdiction to enforce constitutional rights can be seen in the case of Narayan Prasad V. State of Chhattisgarh when two brothers were denied No Objection Certificates for the transfer of their property by the special tribunal. They approached the High Court to enforce their right as provided by Article 300-A of the Constitution, and this was upheld by the court who stated that they ought to be granted the same since it is a constitutional right that has been granted to them.

The writs are classified into five types; these are discussed below:

  1. The Writ of Habeas Corpus: The literal translation of the writ is “to have the body”. This is used by the court to set free someone who, in the eyes of the court, has been wrongfully detained. It was held in Narayan V. Ishwarlal, that the question of whether the writ is civil or criminal would depend upon the procedures in which the detention was executed.

An important feature of the writ is that in the case of habeas corpus, the doctrine of locus standi has been relaxed. This doctrine states that only that person who has a direct connection to the case at hand shall be permitted to approach the court for relief. In the case of this writ, this doctrine was eased by the court in the case of Sheela Barse V. State of Maharashtra, this was done in court because if there is a situation where a detained person is unable to plead, any other party such as their family should be allowed to file a writ petition on their behalf.

In addition to this, even if someone who has been detained writes a letter to a judge, it can be used as sufficient grounds to file the writ, this was held in Sunil Batra V. Delhi Administration. Finally, the courts also have the power to take suo moto cognizance and file a writ themselves. While dealing with a habeas corpus petition, the courts may also look into the legality of the detention without having the person so detained, produced before them. This was seen in the case of Kanu Sanyal V. District Magistrate.

Once the writ is issued by the court, the person who has been wrongfully detained is produced before the court, and if the court finds that the detention was not justified then it orders their release. They can deem the detention to be illegal on grounds of due procedure established by law not being followed, or that the detention was not made in accordance with the law. In certain cases, the courts may even go so far as to award exemplary damages, such as was seen in the case of Bhim Singh.

This writ can, however, not be invoked in cases such as where the detention is a result of a judicial proceeding, the person has been put into restraint under a constitutionally valid law, or if it is deemed that the court does not have the appropriate territorial jurisdiction.

  1. The Writ of Mandamus: Mandamus literally means, ‘we order’, this writ is a form of command by the courts to other bodies, which could be constitutional, statutory, or non-statutory, or by a higher court to a lower court, to perform a specific act, or stop them from performing a certain act which falls outside the scope of their powers, these acts need to be mandatory in nature and not discretionary.

It is important to remember that this writ cannot be filed against a private party who does not have a legal duty to perform the function, it can also not be used against the President, as held in the S.P Gupta case, or governors, as said in C.G Govindan V State of Gujrat. It can also not be brought against inferior officers who are bound by the directions provided by their seniors. It can however be filed against a private person if it can be shown that they acted in collusion with a public authority, this was laid down in the cases of The Praga Tools Corporation v. C.V. Imanual, and Sohanlal v. Union of India. The court has also stated that the rule of locus standi is to be followed while issuing this writ.

Courts can issue the writ in a situation where there exists some legal right of the petitioner that has been infringed due to the non-performance of a duty that a party, be it a public authority or a private party, was legally bound to perform but has not done so.

Some cases where this writ was used by the court include the case of Rashid Ahmad V. Municipal Board where the court held that even if an adequate alternative remedy is available, it cannot serve as a bar towards issuing the writ even if it might be taken into consideration by the court. Even in PUCL V. Union of India, the courts issued a continuing mandamus, which means that the state was required to appear before the court at regular intervals and show that they were taking necessary steps to provide the right to food under Article 21 of the constitution. Here the continuing mandamus was used by the court to continuously monitor the state for many years after the initial suit was brought in 2001.

  1. The Writ of Certiorari: Certiorari means ‘to certify’. This writ is used by higher courts as a form of a command to a lower court or some lower quasi-judicial body to send the records of a proceeding that is pending before it to the higher court. This is usually done when it is believed that the lower court does not have the necessary jurisdiction as was seen in Rafiq Khan V. State of U.P where the Allahabad HC quashed an order by the sub-divisional magistrate who had modified the order by the Panchayati Adalat to convict the accused under the relevant sections of the IPC on the grounds that the magistrate lacked the required jurisdiction to be able to modify orders.

It is also used if the lower court violates the principle of natural justice while giving its judgment, or if there is an error of law made by the lower court that is apparent on the face of it, i.e., they have clearly disregarded certain statutory provisions, this was seen in the case T.C Basappa V. T. Nagappa. The writ cannot be issued if the decision by the lower court is made due to an error in facts, and it can only be filed against a lower court and not against a higher court or a court of equal standing, this was clarified in Surya Dev Rai V. Ram Chander Rai.

It is important to remember that the higher court only has an advisory jurisdiction while issuing this writ, and it cannot be used in the form of appellate jurisdiction. It also follows the doctrine of locus standi to a very stringent degree.

  1. The Writ of Prohibition: This is also known as a stay order, under this writ used by a higher court to forbid a lower court from continuing proceedings or acting beyond their scope of powers. The main aim behind the writ is to prevent courts from acting outside their scope of jurisdiction, as was seen in East India Company Ltd. V. The Collector of Customs as well as the Bengal Immunity Co. Ltd case, and it is available while the proceedings are pending and before an order has been made.
  1. The Writ of Quo Warranto: This writ is used to look into the legality of a claim made by a person or an authority to act in some public office, it seeks to check whether they are entitled to the position or not by examining the actions of the appointing authority. The basic idea behind having this writ is to prevent someone from holding a public office that they are not entitled to in order to prevent harm from coming to the public. This writ can be issued by anyone, the conditions for issuing the writ are that the office cannot be private and must be a public one (this was stated in Jamalpur Arya Samaj V. Dr. D. Ram ) which was created either by a Statute or by the Constitution. Further, it must be a permanent office and the writ has to be issued against a person who is currently holding the office or is someone who was disqualified from the office but refuses to vacate. This writ falls completely on the discretion of the courts.


A PIL refers to litigation that is undertaken in order to address grievances of the public and can be filed by anyone. A PIL is filed under Article 32 in the Supreme Court, Article 226 in the High Court, and Section 133 of the Code of Criminal Procedures in a magistrate. The courts can also initiate the process on the reception of a report, email, letter, etc. The PIL can be treated in the same way as a writ petition and once the court is satisfied that the letter is from the aggrieved party, it can initiate proceedings. It is a critical part of the Constitutional Remedies since it helps promote equality as well as protection of personal liberties of the people who might be unable to stand up for themselves. Furthermore, due to its inexpensive nature, it can be made available to more people and helps the courts in upholding the rights of the minorities and raising public awareness.
While the intention behind introducing PIL’s was to help make justice more accessible to all sections of society, it has also drawn criticism. Some of the criticism leveled towards PIL’s include the fact that the courts have misused PIL’s to overstep their bounds and breach the separation of powers by making policies on subjects such as pollution and sexual harassment. Further, due to the sheer volume of PIL’s that get filed due to their inexpensive nature, not only does it lead to an increase in the burden of the courts, oftentimes they spend time on frivolous PIL’s while ignoring more pressing concerns.
When it was seen that there was rampant abuse of PIL’s taking place, guidelines were laid down with regards to PIL’s in the State of Uttaranchal V. Balwant Singh where the court stated that any person who files a frivolous PIL ought to be fined up to Rs. 1 Lakh. It further said that the courts must verify the credentials of the petitioner before they take up a PIL, and they must ensure that the PIL contains a substantial question of interest to the public at large.


Res Judicata roughly translates into a matter that has been decided. The doctrine states that if a matter has already been decided by a court of competent jurisdiction, it is binding on the parties unless overturned via appeal or revision. The question thus arises, will an application under Article 32 be maintainable if a similar petition has been rejected by the High Court under Article 226. The rule is not only a mere technicality, it finds its roots in the promotion of public policy.
The court held in Daryao V. State of Uttar Pradesh that the doctrine of res judicata would remain a bar on the maintainability of a petition under Article 32 before the Supreme Court if the same has been decided by the High Court under Article 226. Further, it is important to note that in a situation where a writ petition is pending before a High Court, it cannot be filed before the Supreme Court, this was laid down in PN Kumar V. Municipal Corporation of Delhi, if such a situation were to arise then the party must only be allowed to move to the Supreme Court on appeal.


Articles 32 and 226 have played a monumental role in giving the courts the power to make justice more accessible to all sections of society. Through the regular judicial review, they have made the Constitution into a dynamic document that is better adjusted to modern times. Providing constitutional remedies to the people through the medium of PIL’s has vastly helped the disadvantaged raise their voice against the wrongs committed against them.
It is for these reasons that Article 32 has been deemed to be a cornerstone of our democracy by former CJI BP Gajendragadkar, M V Pylee noted that the first three sections of Article 32 help make the fundamental rights real, and this, in turn, makes them the “crowning part of the entire chapter”.
While these articles do equip the judiciary with great powers to be able to aid the public, it is critical that regular checks be maintained on the usage of this power by the courts, it has to be seen that the Judiciary work with a level of restraint and do not overstep their bounds. After all, with great power comes great responsibilities.

Comments are closed.