Indian Constitution

Article 32 of the Indian Constitution

Article 32 of the Indian Constitution

Article 32, under Part III of the Indian Constitution which guarantees fundamental rights to the citizens of the country, allows them to move the apex court in case of violation of such rights.

Clause 1 of Article 32 guarantees the right to move the supreme court, by appropriate proceedings, for the enforcement of fundamental rights.

Clause 2 of the Article provides that SC shall have the power to issue directions or order or writs for the enforcement of rights. A writ is nothing but a written order from the SC or HC that provides constitutional remedies for citizens of the country against the violation of their fundamental right. These constitutional remedies include writs namely Habeas Corpus, Mandamus, Prohibition, Quo-warranto, and Certiorari.

Further, clause 3 states that Parliament may empower any other court to exercise within the local limits of its jurisdiction by force of law. However, it should be done without any prejudice to the powers conferred on the SC as provided under the above-mentioned clauses.

Finally, Article 32 (4) states that the right guaranteed by the Article shall not be suspended except, as otherwise provided for by the Constitution.

Types of Writs:

  1. Habeas Corpus

In the literal sense, Habeas Corpus means ‘to have the body. This writ provides an individual with protection against unlawful detention. It is an order issued by the court to a public official to produce the detained person before it. The court then examines the grounds based on which the person has been detained. If the confinement has no legal justification, the arrested person is set free.

However, this writ cannot be issued in cases where:

  • detention is lawful,
  • the proceeding is regarding contempt of a court,
  • an individual is confined by a competent court, and
  • the arrest falls outside the jurisdiction of a particular HC.

Further, the writ of Habeas Corpus is ineffective if the detainee is produced before a judicial officer. An individual can seek compensation from the state against unlawful confinement. The petition for this writ can be filed by the prisoner or any person on his behalf. Moreover, Habeas Corpus cannot be suspended even during an emergency proclaimed under Article 359.

  1. Mandamus

Mandamus literally means ‘we command’. It is issued by a court, commanding a lower court or public official to perform his duties correctly. This writ can also be issued by the HC for violation of the ordinary rights of the public. It can be issued against any public body, an organization, a tribunal, or government itself. However, it cannot be issued against an individual and cannot be issued to enforce a contractual obligation that does not carry statutory force. It also cannot be issued against the President of India or the State Governors, Chief Justice of HC acting under his legal authority.

  1. Prohibition

The writ of Prohibition means ‘to forbid’. It is a writ directing a lower court to stop doing something that is prohibited by the law. Its main purpose is to prevent a lower court from exceeding its jurisdiction or from acting contrary to the rules of Natural Justice.

It can only be issued against judicial and quasi-judicial authorities. However, it is not available against administrative, legislative, and private bodies. The Writ of Prohibition is preventive in nature as it tries to stop an act against the law.

  1. Quo-warranto

The writ of quo-warranto implies ‘by what authority or warrant’. It is issued by the court against an individual who seizes a public office. It enquires about the legality of encroachment of a public office by an individual.

It can be issued on the following grounds:

  • the public office created by the Constitution of India, and
  • person to be appointed by the Constitution.

The writ of quo-warranto cannot be issued against a ministerial or private office.

  1. Certiorari

Writ of Certiorari means ‘to be certified’. It is generally issued by the SC and HCs to a lower court to overrule the latter’s judgment. It can be issued on the following grounds:

  • to rectify the errors of the jurisdiction, and
  • in cases of error of law.

It can be issued against administrative bodies which affect the rights of the individuals. However, this writ is not available against equal or higher courts and is only available against inferior courts.

Article 32 and Article 226

Article 32 is known as the ‘heart and soul of the Indian Constitution which provides the fundamental rights to the citizens of the country whereas Article 226 gives discretionary power to the HCs and guarantees fundamental rights. Article 32 cannot be suspended during an emergency while Article 226 can be suspended. Rights provided under Article 32 cannot be refused by the SC however rights provided under the latter are under the discretion of the HCs.

Thus, both the articles vary slightly from each other in terms of powers, but both ensure that the fundamental rights of the citizens of the country are protected and provisions of the Constitution are upheld.

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