fbpx

Why Right to Constitutional Remedies is Important

Article 32

Introduction:

The citizens of India are guaranteed certain basic fundamental rights by the state, which cannot be taken away from them except in cases of procedure established by law. Such a guarantee is instrumental in reducing the arbitrariness of government legislation. In the absence of fundamental rights, the citizens may not be entitled to any basic human rights. Thus to prevent this, the constitution-makers incorporated Part III of the Indian Constitution enumerating a list of rights that is to assured by the state.

Importance of Right to Constitutional Remedies

Article 32 was incorporated in the Indian Constitution to assure that the citizens and individuals are not subject to unreasonable vitiation of fundamental rights. This article guarantees the right to constitutional remedies. Any individual, whose fundamental right has been violated by the state, has the right to approach the Supreme Court of India for enforcement of the said right. Dr Ambedkar, who was the chairman of the drafting committee of the Indian Constitution, rightly called this article as:

‘The very soul of the Constitution and the very heart of it.’

The importance of Article 32 in the Indian constitution is immense. It is not just a constitutional right, but also a fundamental right. Without this, there would be no guarantee of other fundamental rights. Article 32 makes the fundamental rights written on paper an ensured reality. The Constitution of India would be meaningless without this provision.

List of Fundamental Rights to be guaranteed by the State:

None of the Fundamental Rights provided in the constitution can be held in isolation. To assure the rights of citizens, in reality, any fundamental right has to be read in association with Article 32. Some of the fundamental rights for the violation of which a citizen or an individual can approach the Supreme Court for remedies under Article 32 are broadly enlisted below.

  • Laws passed by the parliament that is inconsistent with any of the fundamental rights [1]
  • Equality before the law or equal protection of law by the State [2]
  • Prohibition of Discrimination by the state based on religion, race, caste, sex, place of birth or any of them[3]
  • Equality of opportunity in matters of public employment (excluding reservation or appointment of posts in favour of any backward class of citizens)[4]
  • Abolition of the practice of Untouchability in any form [5]
  • Abolition of any title conferred by the state ( except military or academic distinction)[6]
  • Right to Freedom of speech (subject to reasonable restrictions)[7]
  • Protection of certain rights in respect of conviction for offences ( Ex post facto law, double jeopardy, and self-incrimination )[8]
  • Right to life and personal liberty (except in cases of procedure established by law)[9]
  • Right to free education to all children between the age of six to fourteen[10]
  • Protection of right against arrest and detention in certain cases [11]
  • Prohibition of Traffic in Human Beings, Begar (work without pay) and other similar forms of forced labour [12]
  • Prohibition of employment of children below the age of fourteen in factory or mine or any other form of hazardous employment[13]
  • Right to freedom of conscience and free profession, practise, and propagation of religion (subject to public order, morality, and health)[14]
  • Freedom to manage religious affairs, payment of taxes for promotion of any particular religion and attendance at religious instruction or religious worship in individual educational institutions (subject to public order, health, and morality)[15]
  • Prohibition Discrimination against minorities, including their right to establish and maintain educational institutions[16]

The Supreme Court has, over the years, actively increased and expanded the scope of fundamental rights. In case of any of the above instances and more where the state fails to guarantee fundamental rights, an aggrieved citizen can approach the Supreme Court of India for remedies. This is at the crux of the constitutional right to remedies.

Writs under article 32:

Article 32 also empowers the Supreme Court of India to issue Writs. Any citizen aggrieved by the state can file a writ petition.

Writ of Habeas Corpus: ‘Habeas Corpus’ translates literally to ‘to have a body’. This writ is issued by the Supreme Court when the personal liberty of an individual is vitiated, particularly in cases of illegal detention.

Writ of Mandamus: ‘Mandamus’ means ‘we command’. The writ of mandamus is used by higher courts to enforce their decisions on the lower courts. The Supreme court can invoke this writ in circumstances when the lower public authority has a duty, but it fails in doing so.

Writ of Quo Warranto: The literal meaning of ‘Quo Warranto’ is ‘by what warrants’. The Supreme Court can invoke the writ of quo warranto in cases where the activities carried out by a holder of public office exceeds their authority.

Writ of Certiorari: ‘Certiorari’ means ‘to certify’ or ‘to quash’. This writ of Certiorari can be invoked to quash a lower court or tribunals have passed the order of that. It can only be issued against judicial orders.

Writ of Prohibition: The writ of Prohibition is also known as ‘stay order’. This writ is invoked by the Supreme Court to get any lower court to stop acting beyond its jurisdiction.

Using these five Writ Petitions, an individual is entitled to approach the Supreme Court of India. The concept of Public Interest Litigation is also a unique feature introduced by the Indian judiciary to address concerns of fundamental rights violations.

Conclusion:

The importance of the Right to Constitutional Remedies is immense. Without this provision, the constitution would be rendered null and void. This right forms the basis of the entire legal system in India. Article 32 not only assigns meaning to the constitution but also lays down the detailed process to approach the Supreme Court. It is essential that such a remedy is available to the citizens to prevent the state from resorting to a totalitarian form. Having the Right to Remedies is crucial to uphold the ideals of democracy, freedom, equality, and liberty.

[1] Article 13, The Constitution of India

[2] Article 14, The Constitution of India

[3] Article 15, The Constitution of India

[4] Article 16, The Constitution of India

[5] Article 17, The Constitution of India

[6] Article 18, The Constitution of India

[7] Article 19, The Constitution of India

[8] Article 20, The Constitution of India

[9] Article 21, The Constitution of India

[10] Article 21(A), The Constitution of India

[11] Article 22, The Constitution of India

[12] Article 23, The Constitution of India

[13] Article 24, The Constitution of India

[14] Article 25, The Constitution of India

[15] Article 26, Article 27, The Constitution of India

[16] Article 29, Article 30, The Constitution of India

Leave a Reply

Your email address will not be published. Required fields are marked *

© All rights reserved

Legodesk is owned by Legodesk Technologies Private Limited,

under the Companies Act, 2013. It is not a law firm and does not provide legal advice. It neither endorse, solicit work of any Lawyers, Law Firms and Legal Professionals. The use of any materials or services or software is not a substitute for legal advice. Only a legal practitioner can provide legal advice. A legal practitioner should be consulted for any legal advice or matter.