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Fundamental Rights in Indian Constitution - Part -6

Article 32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

It needs to be remembered here that the above 5 writs can also be issued by High Courts under Article 226. While the Supreme Court's Jurisdiction under Article 32 is limited to fundamental rights, the jurisdiction of High Courts under Article 226 is much wider.

Article [33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.,–

Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,-

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or

(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.]

Article 34. Restriction on rights conferred by this Part while martial law is in force in any area

Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India 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.

Article 35. Legislation to give effect to the provisions of this Part

Notwithstanding anything in this Constitution,—

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—

(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and

(ii) for prescribing punishment for those acts which are declared to be offences under this Part;

and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);

(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.

Explanation.—In this article, the expression "law in force" has the same meaning as in article 372.

Article 32 of the Indian Constitution gives the right to approach the Supreme Court directly. Supreme Court has the authority to issue directions, orders and writs for the purposes of fundamental rights.

Under Article 32 Parliament can give the authority of Superme Court to any other Court as well. The rights given by this Article cannot be suspended without amending the Constitution. This Article gives a guarantee for enforcing lfundamental rights. In cases of violation of fundamental rights a person has a right to directly approach the Supreme Court without following the long and difficult procedure of the lower courts.

Dr Ambedkar had said:

'If I am asked to tell which Article in the Constitution is the most important - an article without which this Constitution will be useless - then I cannot mention any Article other than this one. This is the heart and soul of the Constitution and I am happy that the house has felt its importance.'

Supreme Court issued 5 types of writ. Let us learn about them in detail -

1. Habeas Corpus- The purpose of this writ is to get relief from illegal detention. It means 'Bring the body'. This writ is for the protection of freedoms granted by Articles 19, 21 and 22 of the Constitution. This writ provides relief from illegal detention immediately.

   Following persons can apply for a writ of Habeas Corpus -

   1. The person who has been illegally detained.
   2. The person who has knowledge about the case.
   3. The person who is familiar with facts and circumstances of the case.

   An application for wirt of Habeas Corpus can be rejected on the following grounds:

   1. If the Court does not have jurisdiction.
   2. If the person has been taken into custody on the orders of a Court.
   3. If the person detailed has already been released.
   4. If the detention is on valid grounds.
   5. If competent court has rejected the petition on mertis.

   The writ of habeas corpus continues even during emergency, because after the 44^th amendment in 1978 the legal situation is that Articles 20 and 21are not susppended even during emergency.

   Important Case law on habeas Corpus

   1. It was held by the Supreme Court in ADM Jabalpur Vs Shivakant Dubey, that Habeas Corpus is suspended during Emergency. This situation has now been reversed by the Puttaswami Judgement by the Supreme Court.
   2. In Sheela Barse Vs State of Maharashtra 1983, SCC 96, the Court has held that if the person who is detailed cannot give application for the writ, then any other person can file it on his behalf. Thus the princile of locus standi does not apply.
   3. In Sunil Batra Vs Delhi Administration, 1980 AIR 1579, the Court has held that writ of Habeas Corpus can be filed not only for illegal detention, but also for protection from any misbehavious ot discrimination during detention as well.
   4. In Neelabati Behra Vs State of Orissa, the petitioner son was taken for interrogation by the Orissa police. During the pendancy of the case his dead bopy was found on the railway track. The Court ordered compensation in this case.
   5. In kanu Salnyal Vs District Magistrate Darjeeling and others 1974 AIR 510, it was held that it is not necessary to produce the prisoner in Court in Habeas Corpus case.
   6. In A.K. Gopalan Vs State of Madras the Court held that if the legislature has made a law for preventive detention, such a detention under such a law is valid if the legislature was competent to make the law. It was also held that an appeal lies ot the Supreme Court in matters of Habeas Corpus against the order of the High Court.
2. 'Mandamus' - 'The meaning of mandamus is an orde. It is an order to a person, body incorporate or a lower court to perform their public duty. Any person who is affected by the misuse or non performanec of public duty can apporach the Supreme Court for issuance of a writ of Mandamus.

   Conditions of Mandamus

   1. The authority against whom a writ of Mandamus is prayed, should have a public duty, which he has fialed to perform.
   2. The public duty should not be discreationary and should be mandatory.
   3. The applicant should have requested the authority to do his public duty and the authority should have refused the request.

   Exceptions to Mandamus

   1. Writ of Mandamus cannot be issued against the President of India and Governors of States.
   2. Writ of Mandamus is not issued against private individuals or companies who have no public duty.
   3. Legislatures cannot be ordered to make or not make a law.

   Case Law about Mandamus

   1. In John Paily Vs State of Kerala and others WPC 428/2021, the Supreme Court has held that directions to establish a tribunal cannot be issued by a writ of Mandamus. The Court said that under Article 245 and 246 Court cannot direct legislature to make any law.
   2. In Sohanlal Vs Union of india (1957), the Supreme Court has held that writ of Mandamus can only be issued against a private person is such a sperson is one with a public authority.
   3. In Sharif Ahmad Vs HTA Meerutt (1977), the Supreme Court issued a writ of Mandamus to the resondant to comply with the orders fo the tribunal.
   4. In SP Gupta Vs Union of India (1981) the Court held that writ cannot be issued to the President to fix the number of judges and fill vacancies
   5. In G.G. Govindan Vs State of Gujarat (1991), The Court refused to issue a writ to the Governor of the State for sanctioning the salary of Court employees fixed by the Cheif Justice of the High Court.
3. Prohibition - This is issued to restrain the lower courts, tribunams and quasi-judicial authoritites for act outside their jurisdiction and violating their authority. It is commonly known as a stay order.

   Writ of Prohibition can be issued on the following ground

   1. Acting without or beyond jurisdiction;
   2. Acting on the basis of invalid law;
   3. Acting against the principles of Natural Justice;
   4. Error apparant on the face of teh record;
   5. Decision on supported by evidence

   Case Law about writ of Prohibition

   1. In S. Govind Menon Vs Union of India (1967) Kerala High Court had held that writ of prohibition can be issued both when jurisdiction is exceeded or jurisdcition available is not used.
   2. In Hari Vishnu Kamat Vs Sayyad Ahmad Ishaq (1955) differce between cetiorari and Prohibition was brought out and it was said that when the lower court has issued an order then petitioner has to file a writ of Certiorari because prohibition can only be issued when the order is yet to be passed.
   3. In Prudencial Capital Markets Vs State of Andhra Pradesh and others, (2000), the Court held that writ of prohibition cannot be issued after the order has been carried out.
4. Writ of Quo-Warranto- Quo-Warranto, means by what authority. This writ is issued against usurption of a public office and the person appointed on that office has to show by by which authority he is working on that office, so that it can be considered a valid appointment.

   Any person whose fundamental and other leagl rights are violated can apply for a writ of Quo-Warranto. Even in those cases where such a violation is not there, but where a question of public interest is involved, a person can make an application. However the application should be in public interest and not for anny illegal gain.

   Case Law about writ of Quo Warranto

   1. In Amrendra Chandra Vs Narendra Kumar Basu, 1951, the Court refused to issue a writ of Quo Warranto against the managing committee members of a private school becaue they were not holding any public office.
   2. In Mahesh Chandra Gupta Vs Rajeshwar Dayal and others, (2003) The Court held that the appealant had not interest in the appointment and he was not adversely affected in any manner, and therefore rejected the application.
   3. In N.S. Chandramohan Nair Vs George Joseph, (2010), the Court held the respondent to be a busybody and interloper and held the cancellation of appointment by the High Court to be wrong.
   4. In Rajesh Awasthy Vs Nand Lal Jaiswal, (2013). the Court held that the main issue to be considered is whether the person holding the office has the qualifications to hold the office as per law or not.
5. Writ of Certiorari- It measn to certify. It is issued to cancel the order of lower court. This can also be sued by the Supreme Court to withdraw the case to itself for hearing or to transfer it to some other Court.

   Necessary conditions of Certiorari

   1. Act without jurisdiction
   2. Act against principles of Natural Justice
   3. It is issued only in those cases where the authority has a duty to act judicially. It is not issued in purly administrative matters.
   4. When there is failure of justice due to violation of natural justice, fraud, conspiracy or corruption.
   5. Error of Law

   In Radheshyam and others Vs Chhabi Nath and others, (2015) the Supreme Court has held that orders of civil courts are cannot be challenged in a writ of Certiorari