Right to constitutional Remedies
( Article – 32 )
B. R Ambedkar said that article 32 is Heart and soul of Constitution. All rights are of no use if there is no remedy or claim on them. This Article makes every right practical. In lack of this all article all others will be proved as only theory . To imply all other rights we need a remedy and this article is remedy in case of any violation. This article aims to safeguard and protect fundamental rights.
There are four article that talks about protection of fundamental rights i. e, article 13 which talks about judicial review , article 359 which says that state can curtail fundamental rights only in emergency and not in any other circumstances. Article 32 which provide us 5 types of writs for protection of fundamental rights is itself a fundamental rights. Article 32 gives two types of power firstly if an individual’s right is being violated so he can directly approach the supreme court with the help of article 32 on the other hand it gives power to supreme court that it can issue 5 types of writs in case of violation of fundamental rights. That’s why supreme court id also known as guarantor and protector of fundamental rights. And article 226, it gave same power of issuing writs to high courts. By using this article anyone can approach high court in case of violation of fundamental rights.
Also there is no such rule that we have to first approach high court and then supreme court. We can directly approach supreme court however we should have a valid reason for not approaching high court first. Article 32 as well as 226 both can provide writs but there are twi major differences between them that is article 32 has power only to protect fundamental rights but 226 provides power to issue writs against for other purposes like administrative tribunal. Also article 32 is itself a fundamental right but 226 is not a fundamental right.
Writs means remedies there are 5 types of writs that are:-
1. Habeas corpus
5. Quo warranto
These all are Latin terms let’s discuss them one by one :-
• Habeas corpus
Habeas corpus means “to have a body “ Or “ to produce a body”
This writ is most powerful and mostly used writ it says that if states detain a individual illegally then the person, his family members or friends can use this writ to release this person . So whenever someone use this writ Sc or Hc asks the detaining authority about the basis of detaintion of that person. If the basis is found to be unreasonable then the detention ends and the person who was detain should be released with Immediate effect.
There are four conditions in which we cannot use this writ :-
1. Detention is lawful
2. Contempt of court
3. Detention is outside the Jurisdiction of the court
4. Detention is by a competent court
Case laws :-
Rudul shah vs state of bihar
District magistrate of jabalpur vs Shiv kant shukla
Ramabai ramkrishna nene And ors vs the Secretory urban Development.
Jagdish singh @ Dhakku singh vs union of India
Mandamus means we command
It is a type of command which we can used on any statutory, non statutory ,university or tribunal and can ask them to perform their public duty. There is one prerequisite condition to use this writ that there should be a public duty.
Case laws :-
Gujrat state financial corporation vs Lotus hotels.
Ajit singh vs state of punjab
Suganmal vs state of Madhya pradesh
Rita mishra vs director, primary education.
Certiorari means to be certified
Through this writ Sc and Hc can command lower court to submit its record for their review In the review it is checked that whether the lower court judgement are illegal or not. Judgement is considered as illegal if
1. Excess of jurisdiction
2. Lack of jurisdiction
3. Unconstitutional jurisdiction
4. Violation of principles of natural justice
If the judgements are found illegal then it will be quashed.
Gullapalli Nageshwar Rao vs Apsrtc
A. K kripak vs union of India
Prohibition means to forbid
Before the announcement of judgement if we want to prevent the mistake then the writ of prohibition is used. Prohibition is used before announcement pf judgement of lower courts.
Tamil Nadu tobacco co. Ltd vs union of India
Budh prakash jai prakash vs sales tax officer
• Quo warranto
Quo warranto means what is your authority
It prevents the illegal “unwanted superiority of government officers in a public office “.In this we can ask that by what authority the officer is holding the public office and if the title of officer is defective then the officer have to vaccant the office.
B sriniwas reddy vs karnataka urban water supply
P. L lakhanpal vs A N ray