Constitutional Remedies and Writs (Articles 32–35)

Article 32: the heart and soul

A right without a remedy is meaningless. Article 32 makes the right to move the Supreme Court for enforcement of Fundamental Rights itself a Fundamental Right. Dr Ambedkar called it "the very soul of the Constitution and the very heart of it". Its four clauses:

1. The right to move the Supreme Court by appropriate proceedings is guaranteed.
2. The Supreme Court can issue directions, orders or writs – habeas corpus, mandamus, prohibition, certiorari and quo warranto.
3. Parliament may empower any other court to issue such writs within its local limits (Parliament has not done so).
4. The right cannot be suspended except as provided by the Constitution (Article 359, during a national emergency).

The Supreme Court is thus the guarantor and defender of Fundamental Rights. Its original jurisdiction under Article 32 is not exclusive – High Courts share it under Article 226. In L. Chandra Kumar (1997) the Court held that the writ jurisdiction of the Supreme Court and High Courts is part of the basic structure. Article 32 is available only for Fundamental Rights, not other legal rights. In recent years the Court has often asked petitioners to approach the High Court first unless there is a special reason – but the right itself remains.

Article 226 compared

Thus the High Court's writ jurisdiction is wider than the Supreme Court's.

The five writs

The writs come from English law, where they were "prerogative writs" issued by the King.

1. Habeas corpus – "to have the body of". An order to a person who has detained another to produce the detained person before the court, so that the court can examine the cause and legality of detention. It can be issued against both public authorities and private individuals. It is not issued where detention is lawful, where proceedings are for contempt of a legislature or court, where detention is by a competent court, or where detention is outside the court's jurisdiction. It is the bulwark of personal liberty.

2. Mandamus – "we command". A command to a public official, public body, corporation, inferior court, tribunal or government to perform a public duty that it has failed or refused to perform. It cannot be issued against a private individual or body, to enforce departmental instructions without statutory force, to order someone to act against a statute, where the duty is discretionary, to enforce a contractual obligation, or against the President, state Governors or the Chief Justice of a High Court acting in a judicial capacity.

3. Prohibition – "to forbid". Issued by a higher court to a lower court or tribunal to prevent it from exceeding its jurisdiction or usurping a jurisdiction it does not have. It is issued during the proceedings (preventive). It is available only against judicial and quasi-judicial authorities – not administrative authorities, legislative bodies or private persons.

4. Certiorari – "to be certified" or "to be informed". Issued by a higher court to a lower court or tribunal either to transfer a pending case to itself or to quash the order of the lower body, on grounds of excess of jurisdiction, lack of jurisdiction or error of law. It is both preventive and curative. Earlier limited to judicial bodies, it has been extended by the Supreme Court to administrative authorities affecting rights of individuals. It is not available against legislative bodies or private persons.

5. Quo warranto – "by what authority or warrant". Issued to inquire into the legality of a claim by a person to a public office, preventing illegal usurpation. It can be sought only for a substantive public office of a permanent character created by statute or the Constitution – not for ministerial or private offices. Unlike the other writs, it can be sought by any interested person, not only the aggrieved person.

Articles 33–35

• Article 33: Parliament may restrict or abrogate Fundamental Rights of members of the armed forces, para-military forces, police, intelligence agencies and analogous forces, to ensure proper discharge of duties and discipline. Only Parliament (not state legislatures) can make such law; examples are the Army Act, 1950 and the Navy Act, 1957.
• Article 34: restrictions on Fundamental Rights while martial law is in force in any area. Parliament can indemnify officials for acts done to restore order. "Martial law" is not defined in the Constitution; it is different from a national emergency – it suspends ordinary law in a particular area, while emergency affects the whole country or a part of it.
• Article 35: only Parliament can make laws prescribing punishment for offences under Part III (for example, untouchability) and laws under Articles 16(3), 32(3), 33 and 34 – ensuring uniformity across India.

Public interest litigation and the writ jurisdiction

In the late 1970s and 1980s, Justices P.N. Bhagwati and V.R. Krishna Iyer relaxed the rule of locus standi so that any public-spirited person could file a writ for those unable to approach the court – prisoners, bonded labourers, pavement dwellers. S.P. Gupta (1981) recognised this approach, and even letters to judges were treated as writ petitions ("epistolary jurisdiction"), as in Sunil Batra and Bandhua Mukti Morcha (1984). The Court has also created new remedies – continuing mandamus (Vineet Narain, 1997, on CBI independence) and compensation for violation of Article 21 (Rudul Sah, 1983; Nilabati Behera, 1993). In State of Uttaranchal v Balwant Singh Chaufal (2010) the Court issued guidelines to curb frivolous PILs.

Common traps

• Habeas corpus and quo warranto can be issued against private persons; mandamus, prohibition and certiorari cannot.
• Prohibition is preventive only; certiorari is preventive and curative.
• Mandamus cannot be issued against the President or Governors.
• Article 32 covers only Fundamental Rights; Article 226 covers other legal rights too.

Practice: check your understanding

1. *A private hospital illegally detains a patient for non-payment of bills. Which writ can the family seek?* Habeas corpus, which lies against private persons as well.
2. *A person without the required qualifications is appointed vice-chancellor of a state university created by statute. Which writ applies?* Quo warranto – it tests the legality of the claim to a public office created by statute.
3. *A tribunal is about to decide a dispute outside its jurisdiction. Which writ prevents this?* Prohibition, because the proceedings are still pending.
4. *Why did Ambedkar call Article 32 the heart of the Constitution?* Because without an effective remedy, the guaranteed rights would remain paper promises; Article 32 makes the Supreme Court their protector.