Article 32: Right to constitutional remedies
- Most important part of the Fundamental Rights
- Parliament can empower any other court to issue directions, orders and writs of all kinds
- President can suspend the enforcement of Fundamental rights during a national emergency (article 359)
- Article 32 can be invoked in only those cases where there is violation of FR
Writs
- Before 1950, only high court of Bombay, Madras and Calcutta could issue writs.
- Idea borrowed from British
- Writ jurisdiction of Supreme Court is narrower
- Territorial jurisdiction of SC is much greater than HC
- SC is the defender and guarantor of fundamental rights
Habeas Corpus
- Tool of individual liberty against arbitrary detention
- Can be issued against both public and private individuals
- The writ cannot be issued in following cases:
- Detention is lawful
- Proceedings is for contempt of legislature or court
- Detention is by a competent court
- Detention is outside court jurisdiction
Mandamus
- Demanding a public official to perform a duty which he has failed to perform
- Can be issued against an inferior court also
- Cannot be issued against a private individual or body. To enforce departmental instruction that does not possess statutory force; when the duty is discretionary; to enforce a contractual obligation; against President of governor; against CJI of a high court acting in judicial capacity
Prohibition
- It means ‘to forbid’
- Issued by a higher court to a lower court
- To prevent exceeding jurisdiction
- Only against judicial and quasi-judicial bodies
- Not available against administrative authorities, legislative bodies and private individuals or bodies
Certiorari
- Much like above but it is curative as well
- Available against administrative authorities as well
Quo-Warranto
- To adjudicate the legality of a claim of a person to public office
- It can be issued against public office of substantive character
- Cannot be issued against ministerial or private office
- Any interested person can seek the application of this
