Right to constitutional remedies

Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs, namely habeas corpusmandamusprohibitioncertiorari and quo warranto, for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these prerogative writs even in cases not involving the violation of Fundamental Rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be suo motu or on the basis of a public interest litigation. This right cannot be suspended, except under the provisions of Article 359 when a state of emergency is declared.

The father of the Indian constitution, and polymath, B. R. Ambedkar wanted a specific guarantee of fundamental rights expressly incorporated in the constitution so that it could be easily enforced. He drafted this Article 32. B. R. Ambedkar had said,

“If I was asked to name any particular article in this Constitution as the most important – an article without which this Constitution would be a nullity – I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.”

During the Constituent Assembly debates in December 1948, Dr. Babasaheb Ambedkar had said that the rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended and hence it was ‘one of the greatest safeguards that can be provided for the safety and security of the individual’.

The right to constitutional remedies is present for enforcement of fundamental rights.

There is a right in India which states that a person can move to Supreme court if he/she wants to get their fundamental rights protected. This right comes under article 32 for Supreme court an article 226 for the high court. It is known as the right to constitutional remedies. In this right, the Supreme court, as well as high court, is given the power to instill the fundamental rights. Furthermore, the power can be issued by local courts also to extend the rights. Although, there is one act which comes under the military law known as the court-martial which is exempted from this right.

Dr. B. R. Ambedkar said that article 32 is the soul of the constitution and it is at the very heart of it. Also, the Supreme court has included this in its basic structure doctrine. Furthermore, this right states that the right to move to the highest court cannot be rejected by any court expect provided by the constitution of India. Thus, it means that this right is suspended at the time of national emergency under article 359. Under article 32 Supreme court acts as a guarantor and defender of the fundamental rights. Furthermore, it is originally under the Supreme Court’s jurisdiction power to issue the writs. Thus, it means that a person can directly approach the Supreme court for the remedy instead through the way of appealing.

A writ is couched in the form of a letter or is percept in writing. It is running in the name of the king, or state, or president, issued from the justice court. So, this is sealed by its seal and addressed to an officer of the law or directly to a person who is commanded for action by the court. Thus, this is done either during the commencement of the suit or is incidental to its progress. It requires the performance of the mentioned actor by giving the command to have it done. Also, it is important to note that article 32 can be invoked only to get remedies related to fundamental rights. Thus, it cannot be there for any legal or constitutional right.

 

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