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Right to Constitutional Remedies

A declaration of fundamental rights is meaningless unless there is effective machinery for the enforcement of the rights. Hence the framers of the Constitution were in favour of adopting special provisions guaranteeing the right to constitutional remedies. This, again, is in tune with the nature in general of the various provisions embodied in the chapter on Fundamental Rights.

Article 32 has four sections.

  • The first section is general in scope and says that “the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed”.
  • The second section deals, in more specific terms, with the power of the Supreme Court to issue writs including writs in the nature of habeas-corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights.
  • The third section empowers Parliament to confer the power of issuing writs or orders on any other court without prejudice to the power of the Supreme Court in this respect. So far, Parliament has not passed any law conferring the power of issuing writs on any courts.
  • The last section deals with the conditions under which this right can be suspended.

The first three sections of the Article, taken together, make fundamental rights under the Constitution real and, as such, they form the crowning part of the entire chapter.Adverting to the special importance of this Article, Ambedkar declared in the Assembly:

“If I was asked to name the particular Article in this Constitution as the most important without which this Constitution would be a nullity, I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.

Hereafter, it would not be possible for any legislature to take away the writs which are mentioned in this Article. It is not that the Supreme Court is left to be invested with the power to issue these writs by a law to be made by the legislature at its sweet will.

The Constitution has invested the Supreme Court with these writs and these writs could not be taken away unless and until the Constitution itself is amended 1) by means left open to the legislatures. This in my judgment is one of the greatest safeguards that can be provided for the safety and security of the individual.”

This opinion of the Chairman of the Drafting Committee has been reaffirmed by the Court itself on several occasions. In Romesh Thappar vs. the State of Madras the Court held: “Article 32 provides a guaranteed remedy for the enforcement of the rights conferred by Part III (of the Constitution) and this remedial right is itself made a fundamental right by being included in Part III.

The Court is thus constituted the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights.”

However, the Court will not entertain any application under Article 32 unless the matter falls within the scope of any of the fundamental rights guaranteed in Part III of the Constitution. As the guardian of fundamental rights the Supreme Court has two types of jurisdiction, original and appellate. Under its original jurisdiction, any person who complains that his fundamental rights have been violated within the territory of India may move the Supreme Court seeking an appropriate remedy. The fact that he may have a remedy in any of the High Courts does not preclude him from going directly to the Supreme Court.

We have already seen under Article 32(4) that the Right to Constitutional Remedies may be suspended under certain circumstances. These circumstances are dealt with in detail in the chapter on Emergency Provisions of the Constitution. Chiefly, these emergencies are three: External aggression, internal disturbance2) (armed rebellion) and breakdown of constitutional machinery in the States.

Under such conditions the President of India is empowered to proclaim an emergency. During the period of emergency he may by order declare that the right to move any Court for the enforcement of any fundamental right shall remain suspended up to a maximum period of the existence of the emergency (Art. 359). Every such order should be placed before each House of Parliament as soon as possible.

Until 1976 the Supreme Court had power to consider the constitutional validity of any State law in any proceedings initiated under Article 32. But this power was taken away by the Forty Second Amendment (1976).As a result the Supreme Court could consider the constitutional validity of any State law only if the constitutional validity of any Central law was also an issue in such proceedings.The Forty Third Amendment (1978) however has restored the original position.

In Minerva Mills v. Union of India SC held that Judicial Review itself is a Basic Structure and cannot be amended by way of a Constitutional amendment
The ground of “internal disturbance” was substituted by the ground of “armed rebellion” by 44th Constitutional amendment in 1978.