Right to constitutional Remedies

32.Remedies for enforcement of rights conferred by this part:

(1) The right to move the supreme court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.

(2) The supreme court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate , for the enforcement of any of the rights conferred by this part.

(3) Without prejudice to the powers conferred on the supreme court by clauses(1)and (2) parliament may be law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the supreme court under clause(2).

(4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this constitution.

COMMENTS

Unlike other rights, it is remedial and not substantive in nature. Right without remedy is meaningless. Dr. Ambedkar called it the heart and soul of the constitution. The fundamental rights to move the court can, therefore, be appropriately described as the cornerstone of the democratic edifice, raised by the constitution. In discharging the duties assigned to it, the court is to play the role of sentinel of the justice. However, it is an urgent remedy and is not available where alternative remedy is available. But the right to move the supreme court is through appropriate proceedings.

Even if the petitioner has not asked for the proper writ applicable to his case, the supreme court must grant him the proper writ to suit the exigencies of the case This remedy is immune from being overridden by legislation by law. Any law which renders nugatory or illusory the supreme court’s power except in exceptional circumstances like declaration of Emergency to grant this remedy, shall be void. Following writs can be issued by the supreme court in different circumstances:

1.Habeas corpus:

The object of the writ is to secure the release of a person found to be detained illegally. It asks first ‘let the person or body of person be produced before the court’. This writ is also issued to remove a person confined in one place for trail to another place. The writ is issued if the arrest or detention is under an invalid law, invalid law, invalid order, is malafide or on irrelevant or extraneous consideration. If an authority passes an order of preventive detention for reasons not connected with the grounds mentioned in P.D. (preventive Detention) law, the court can always declare the detention illegal and release the detainee but it is not possible for the supreme court to function if there is prohibition against disclosing the grounds, which have been served upon him.

2. Mandamus:

Mandamus literally means a command. The mandamus will issue if the applicant has a legal right to the performance of a legal duty of a public nature and the party ’against the officers and the government’. Apart from the enforcement of fundamental rights, mandamus is also available to compel a court or judicial tribunal to exercise its jurisdiction where it has refused to exercise it. The mandamus cannot be issued against the president or the Governor of a state (Article-361). No mandamus can be issued to the rulemaking authority to make the rules either within a specific time or in a particular manner. It is not for courts to determine whether a particular policy or a decision taken in fulfillment of policy is fair. However, directions can be issued to control pollution.

3. Prohibition:

‘Prohibition ‘ is issued against courts or tribunals exercising judicial or quasi-judicial powers to prohibit the tribunal from making the ultra -vires order or decision. The writ of prohibition is available during the tendency of the proceeding before the lower authorities. Thus, while prohibition commands inactivity, mandamus commands activity. Defect of jurisdiction attracts prohibition.

4. Certiorari:

Certiorari is available if the courts or tribunals or officers have acted without jurisdiction or in excess of the legal authority vested in such quasi-judicial authority, or in contravention of the rules of natural justice or there is an ‘error apparent on the face of its record’ . Even purely administrative actions are also now subject to issuance of writ of certiorari, provided the decision is against natural justice, malafide, perverse or based on non-applicability of ground. The writ will be available if the court or tribunal is not properly constituted or the subject matter is beyond the scope of the jurisdiction of tribunal or the tribunal has assumed the jurisdiction or the decision has been obtained by fraud, collusion or corruption.

5. Quo Warranto:

In writ of quo warranto, the court enquries into the legality of the claim which a party asserts to a public office, and to oust him from its enjoyment if the claim is not well founded. A writ of quo warranto lies against the person who is not entitled to hold an office of public nature and is only an usurper of the office. Such a person is required to show by what authority he is entitled to hold that office. The challenge can be made on the grounds such as he does not fulfill the required qualifications or suffers from any disqualification debarring him to hold such office. A writ of quo warranto lies only when the appointment is contrary to a statutory provision.