Articles 32 to 35 - Right to Constitutional Remedies
- Legal Journey
- Oct 25
- 12 min read
Updated: Oct 26
Part 3 of the Constitution of India
Fundamental Rights
Articles 12 to 35
Articles 32 to 35
Right to Constitutional Remedies
- Article 32 has been named as the Heart and Soul of the Indian Constitution by Dr. B. R. Ambedkar.
- Article 32 which is a mechanism for effective remedy against violation of Fundamental Rights is itself a Fundamental Right as well.
Table of Contents 💻
Article 32. Remedies for enforcement of rights conferred by this Part
Clause (1) - It guarantees the right to move the Supreme Court by means of “appropriate proceedings” for enforcement of the Fundamental Rights conferred by Part III of the Indian Constitution.
- There is no limitation in regard to the kind of proceedings except that the proceeding must be appropriate.
- Hence, it is NOT obligatory for the Court to follow the adversary system.
Clause (2) - It confers power on the Supreme Court to issue appropriate
Directions | Orders | Writs |
- Including writs in the nature of -
Habeas Corpus | Mandamus | Prohibition | Quo Warranto | Certiorari |
Or any of them |
- The Court is NOT bound to issue these writs strictly.
- The word “in the nature of” gives more liberty to the Court to issue writs for doing Justice.
- A similar power is wielded by the High Courts under Article 226 but the High Courts have power to issue writs not only for the enforcement of Fundamental rights but for any other purpose also.
Habeas Corpus - It’s a term of latin origin which means “To have the body”
- The writ is issued calling upon the detaining authority to bring the person before the Court and also to justify the grounds of detention.
- Hence, the main object of the writ is to seek relief from the unlawful detention of an individual.
Kanu Sanyal V. District Magistrate, Darjeeling (1974 SC)
- It was held that in writ of habeas corpus under Article 32 the production of the body of the person detained before the Court was NOT necessary for hearing and disposing of the writ petition by the Court.
- The production of the body of a person illegally detained is NOT an essential feature of the writ of habeas corpus.
- If the following conditions are satisfied the detention is legal :-
If the detention is made in accordance with the procedure established by law.
The law must be valid law and the procedure must be strictly followed. If the law is unlawful, the detention also will be unlawful.
The detention is lawful if the conditions laid down in Article 22 are complied with.
Sunil Batra V. Delhi Administration (1980 SC)
- A letter by Sunil Batra (a convict facing death sentence) to the judge alleging torture and inhumane treatment was transformed into a Habeas Corpus proceeding.
- The writ of habeas corpus CANNOT ONLY be used for releasing a person illegally detained but it will be also used for protecting him from treatment inside jails.
ADM Jabalpur V. Shivkant Shukla (1976 SC)
- This case is also known as the Habeas Corpus case.
- It held that a person’s right to Habeas Corpus CAN be suspended.
Justice K. S. Puttaswamy (Retd.) V. Union of India (2018 SC)
- Overruled the Shivkant Shukla case and held that Life and Personal Liberty are inalienable to human existence.
Mandamus - It means “we command”
- The writ of mandamus is thus an order commanding a public official, body or lower court to do something in the nature of a public duty or in certain cases of a statutory duty.
- The writ of mandamus would be issued when there is a failure to perform a mandatory duty.
- But, even when there is a failure in the performance of a mandatory duty, the parties alleging such breach must prove that they made a specific demand for the performance of such duties and that those demands were refused.
- The duty sought to be enforced must be a public duty i.e. a duty cast by law.
- The writ of mandamus CANNOT be issued in the following cases :-
Against a private individual or a private organisation
When the duty is merely discretionary and not mandatory
For the enforcement of a contractual obligation between parties.
When any other remedy is available under any other law for the time being in force.
If the issuance of any such direction would violate any law.
Prohibition - It means “to forbid”
- This writ is issued directing a lower court to prohibit it from doing something which the law prohibits it from doing.
- This writ is issued in both cases where there is an excess of jurisdiction and where jurisdiction is absent.
- It can also be issued if the lower judicial body acts contrary to the rules of natural justice.
Q) What is the difference between the writs of Prohibition and Mandamus?
A) The writ of Prohibition is different from the writ of Mandamus as Mandamus commands activity while Prohibition commands inactivity.
Certiorari - It means “to certify”
- This writ is issued to a lower judicial body to remove a case from such body and adjudicate upon the validity of the proceedings.
- It may be used before the trial to prevent an excess or abuse of jurisdiction and remove the case for trial to higher court.
- It is invoked also after trial to quash an order which has been made without jurisdiction or in violation of the rules of natural justice.
- The writ of Certiorari is issued ONLY against judicial acts on the following grounds:-
Excess of jurisdiction,
An error of law ‘apparent on the face of record’ and not fact,
Violation of the principles of Natural Justice.
Q) What is the difference between Prohibition and Certiorari?
A) The writings of Prohibition and Certiorari have a lot in common.
- Both these writs are issued against inferior courts, concerning their excess of jurisdiction.
- They both are also similar in regards to who they apply to, i.e. only against judicial and quasi-judicial bodies.
- But there is some difference between the two as well which are :-
Prohibition | Certiorari |
This writ is preventive in nature. | This writ is corrective in nature. |
It is issued during a trial when no order has been issued. | It is issued post-trial when an order has been issued. |
- Interestingly, both the writs of Prohibition and Certiorari can be applied at the same time.
- If a case is pending before a Court and it has not been finally disposed of, here both writs will apply.
- The writ of Prohibition to prevent the Court from proceeding further with the case and the writ of Certiorari for quashing anything decided so far in the case. (Hari Vishnu Kamath v. Ahmad Ishaque 1955 SC)
Quo Warranto - It means “By what authority”
- This writ is issued to enquire a person in office to show by what authority he holds the office.
- The writ can be claimed by any person, irrespective of the fact that his fundamental right or any other legal right has been infringed or not.
- The office must be of a public nature.
- If the holder of a public office was initially disqualified to hold a office, but subsequently that disqualification is removed and after that removal the holder could’ve been appointed to the same post.
- Then the writ of Quo Warranto will NOT be issued.
Clause (3) - Parliament can also entrust any other Court (other than the HCs and SC) to exercise, within the local limits of its jurisdiction, any of the powers of the Supreme Court under clause (2).
Clause (4) - The right guaranteed by this Article shall NOT be suspended except otherwise provided for by this Constitution.
- There is ONLY one situation when this right can be suspended.
- When a proclamation of emergency under Article 352 is declared, the President is empowered under Article 359 to declare that the right to move any court for the enforcement of such right conferred by Part III may remain suspended for the period during which the proclamation of emergency is in operation.
Charanjit Lal Chaudhari V. Union of India (1951 SC)
- The wording of Article 32(2) is so elastic that it permits all necessary adaptation without legislative sanction from time to time so as to enable effective enforcement of the fundamental rights.
- Even if proper writ has not been prayed for by the petitioner in a case his application cannot be thrown out.
- Article 32 permits large discretion to the Supreme Court to give the appropriate relief.
- The Court can frame such writs as the exigencies of a particular case demand.
Locus Standi - It means “Place of Standing” which refers to the legal standing of the party appearing before the Court.
- The traditional rule is that the right to move the Court is only available to those whose Fundamental Rights are infringed.
Public Interest Litigation (PIL) - The traditional rule of Locus Standi has been relaxed by the Supreme Court for petitions under Article 32.
- This is what is known as “Public Interest Litigation (PIL)” where public spirited citizens can initiate proceedings before the Supreme Court for the enforcement of Fundamental Rights of any person or group who because of their social position are unable to approach the Court for relief.
S. P. Gupta V. Union of India (1981 SC)
- The Court held that any member of the public having “sufficient interest” can approach the Court for enforcing constitutional or legal rights of other persons and redressal of a common grievance.
- But, the Court also added that it would have to be decided from case to case as to whether the person approaching the court for relief has “sufficient interest” and has not acted with Mala fide or political motives.
State of Uttaranchal V. Balwant Singh Chautala (2010 SC)
- In order to preserve the purity and sanctity of the Public Interest Litigation (PIL) the Supreme Court has issued a plethora of guidelines for entertaining these petitions.
- These guidelines are :-
The Court must encourage genuine and bona fide PIL and effectively discourage and curb PIL filed for extraneous considerations.
Instead of every individual judge devising his own procedure of dealing with the PIL it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging PIL, filed for oblique motives.
The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
The Court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
The Court should be fully satisfied that substantial public interest is involved before entertaining the petition.
The Court should ensure that the petition involves larger public interest, gravity and must be given priority over other petitions.
The Court before entertaining a PIL should ensure that it is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the PIL.
The Court should also ensure that the petition filed by a busy body for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions filed for extraneous considerations.
Doctrine of Delay or Laches
- It is a legal principle of Justice that the Courts will only help those who are vigilant about their rights and who do not sleep on their rights.
- The Courts will refuse to exercise their jurisdiction in favour of a party who comes to the Court after a considerable delay and is otherwise guilty of laches.
- Thus, the remedy under Article 32 must usually be sought within a reasonable time.
- But if the explanation for the delay is convincing and acceptable, the writ petition should not be dismissed on the sole ground of delay.
- There is no prescribed limitation for the petitions of Article 32 and is a matter of facts and circumstances of each case.
Q) What is the difference between Articles 32 and 226?
A) Article 32 can be exercised for the enforcement of Fundamental Rights only, the right conferred by Article 226 can be exercised not only for enforcement of Fundamental Right but for “any other purpose”.
- Thus, the power of the High Court under Article 226 is wider than the power conferred by Article 32 on the Supreme Court.
- However, the power of the High Court to issue writs under Article 226 cannot be in derogation of the Supreme Court.
- In other words, an order under Article 32 will supersede the orders of the High Court previously passed.
Res Judicata
- It a latin term which means “a matter adjudged”
- It is a legal principle that if a question has been once decided by a court of competent jurisdiction, then it cannot be reopened again.
Daryao V. State of U. P. (1961 SC)
- It was held that where the matter has been ‘heard’ and ‘decided’ by the High Court under Article 226, the writ under Article 32 is barred by the rule of res judicata and could NOT be entertained.
Ghulam Sarwar V. Union of India (1966 SC)
- The Court held that the rule of res judicata is NOT applicable in the writ of Habeas Corpus, and where the petitioner has been refused a writ from the High Court he may file a petition for the same writ under Article 32.
Article 33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.
- Article 33 is an exception to the Fundamental Rights conferred by Part III of the Constitution.
- It was amended by the 50th Constitutional Amendment Act, 1984 and added clauses (c) and (d).
- It empowers the Parliament to make laws that could restrict or abrogate by law the application of Fundamental Rights to -
(a) Members of the armed forces | (b) Forces charged with the maintenance of public order | (c) Persons employed in any bureau or other organisation established by the State for purposes of Intelligence | (d) Persons employed in connection with the telecommunication system set up for purposes of any Force, bureau or organisation referred to in clause (a) to (c) |
- The object of this restriction under this Article is to ensure the proper discharge of their duties and maintenance of discipline amongst them.
- This Article is an exception to Article 13(2).
- Hence, a law passed under Article 33 CANNOT be challenged under Article 13(2).
Article 34. Restriction on rights conferred by this Part while Martial law is in force in any area
- Article 34 empowers the Parliament to indemnify any person in -
In service of Union | In service of State | Any other person |
In respect of any act done by him for the maintenance or restoration of order in any areas where Martial Law was in force. |
Or, validate any -
Sentence passed | Punishment inflicted | Forfeiture ordered | Or other act done |
Under martial law | in such area |
- So an Act of indemnity passed by Parliament CANNOT be challenged on the ground that it violates Fundamental Rights.
- The power of Parliament under this Article is subject to two restrictions :-
The act must be done for maintenance of restoration of order, and
Martial Law was in force in the area where the act was done.
Q) What is Martial law?
A) Martial Law can be described as the suspension of ordinary law and the government of the country or part of it by Military tribunals.
ADM Jabalpur V. Shivkant Shukla (1976 SC)
- It was held that there is no express provision in the Indian Constitution which confers power on the Executive to declare Martial Law.
- However, it is implicit in the text of Article 34 under which Martial Law can be declared in any area within the territory of India.
Article 35. Legislation to give effect to the provisions of this Part
- This Article grants exclusive power to the Parliament to make laws for specific matters concerning the Fundamental Rights.
- These specific matters on which the Parliament can make laws are :-
The conditions for employment under the State as outlined in Article 16(3);
The enforcement of rights through courts other than the Supreme Court, as per Article 32(3);
The modification of fundamental rights for the armed forces and police under Article 33;
The suspension of fundamental rights during martial law as provided in Article 34.
- Additionally, Article 35 enables Parliament to prescribe punishments for acts declared as offences under Part III of the Constitution.
- Like for punishments under Article 17 and Article 23.
Frequently Asked Questions
Q) Why is Article 32 called the 'Heart and Soul' of the Constitution?
A) Dr. B. R. Ambedkar described it as such because it ensures effective remedies against the violation of Fundamental Rights.
Q) Can the right to move the court under Article 32 be suspended?
A) Yes, it can be suspended but ONLY during a national emergency under Article 359.
Q) Can Article 32 be used to challenge a Supreme Court judgment?
A) No, the Supreme Court has ruled that Article 32 cannot be invoked to challenge its own judgments; review or curative petitions must be used instead.
Q) Can Parliament confer writ powers on other courts?
A) Yes, but not on High Courts, as they already have writ powers under Article 226.
Q) Can Article 32 be used for ordinary civil or contractual disputes?
A) No, it can only be invoked for violations of Fundamental Rights, not private legal or contractual matters.
Dr. B.R. Ambedkar called Article 32 the “heart and soul” of the Constitution, and for good reason.
Articles 32 to 35 remind us that the Constitution NOT ONLY grants rights but also guarantees their protection.
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