Right to Constitutional Remedies

Article 32: the guaranteed right to move the Supreme Court to enforce Fundamental Rights, the five writs, compensation, and how Article 226 differs

In one minute

Article 32 is itself a Fundamental Right. It lets a person go straight to the Supreme Court when a Part III right is violated. The Court can issue directions, orders and writs, including the five named writs. Article 226 gives the High Courts a similar and wider power.

Exams ask for the five writs, the difference between Articles 32 and 226, and compensation for violations. A problem question often asks which court and which remedy.

Exam focus

Frequency: Rarely asked
Usually asked as: Long answer (10 to 15 marks)

Legal provision

Article 32(1): the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed.
Article 32(2): the Supreme Court may issue directions, orders or writs to enforce any Part III right. They include writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever is appropriate.
Article 32(3): Parliament may by law empower any other court to exercise these powers within its local limits, without prejudice to the Supreme Court's powers.
Article 32(4): the right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution.
Article 226(1): every High Court may issue directions, orders or writs to any person or authority, including a Government, within its territories. This is for the enforcement of Part III rights and for any other purpose.
Article 359: during a Proclamation of Emergency, the President may suspend the right to move a court to enforce Part III rights named in the order, except Articles 20 and 21.

Meaning and definition

A right is only as good as its remedy. Article 32 supplies the remedy. A person whose Fundamental Right is violated does not have to climb through the trial and appeal courts first. Dr. B.R. Ambedkar told the Constituent Assembly on 9 December 1948 that without this Article the Constitution would be a nullity. He called it "the very soul of the Constitution and the very heart of it".

A writ is a court's written order to a person or authority. The five named writs are the main tools, but the Court may also issue any other direction or order that fits.

The five writs under Article 32(2)How to read this: start at the top box. Each leaf names a writ and the order it asks the court to make.

Writs under Article 32(2)
- Habeas corpusProduce the detained person and justify the detention
- MandamusPerform a public duty
- ProhibitionA lower court or tribunal must stop acting beyond its jurisdiction
- CertiorariQuash an order made without or beyond jurisdiction
- Quo warrantoShow by what authority a public office is held

Detailed explanation

Step 1: Article 32 is a guaranteed remedy

In Romesh Thappar v. State of Madras (1950), the Madras Government banned the weekly "Cross Roads" in the State. The editor came straight to the Supreme Court. The State argued that he should first go to the High Court under Article 226. The Court rejected this. Article 32 gives a "guaranteed" remedy and is itself a Fundamental Right, because it is in Part III. The Court is the protector and guarantor of Fundamental Rights and cannot refuse to hear applications seeking protection against their violation.

Step 2: the five writs

The Court may issue the following, whichever is suitable.

Habeas corpus ("you have the body"): orders the person holding another to produce that person and justify the detention.
Mandamus ("we command"): orders a public authority to perform a public duty that it has failed to perform.
Prohibition: forbids a lower court or tribunal from going on with proceedings that exceed its jurisdiction.
Certiorari ("to be certified"): quashes an order already made without jurisdiction, in excess of it or against natural justice.
Quo warranto ("by what authority"): questions a person's right to hold a public office.

Example. Seema is arrested and kept in custody for three days without being produced before a magistrate. Her brother files a habeas corpus petition. The court orders the police to produce her and to explain the detention.

Step 3: Article 32 only for Fundamental Rights

The petitioner must show a violation of a Part III right. Article 32 cannot enforce an ordinary legal right. The aggrieved person ordinarily files the petition. The Court has relaxed this for people who cannot come to court themselves. In Bandhua Mukti Morcha (1984), a letter from a group about bonded stone-quarry workers was treated as a writ petition. This is the base of public interest litigation. Standing, or locus standi, is the right to be heard. The Court has widened it in public interest cases.

Step 4: res judicata and Article 32

In Daryao v. State of Uttar Pradesh (1961), a five-Judge Bench heard six petitions together. The Court held that res judicata applies when a High Court has dismissed an Article 226 petition on the merits. A fresh petition under Article 32 on the same facts is then barred. A petition dismissed in limine, without a speaking order, does not create this bar.

Example. A High Court hears a habeas corpus petition and rejects it after finding the detention lawful. The family cannot file the same petition again in the Supreme Court. They can appeal.

Step 5: compensation as a remedy

The Supreme Court may award money for a violation as a public law remedy. In Rudul Sah v. State of Bihar (1983), Rudul Sah was acquitted on 3 June 1968 but stayed in jail until 16 October 1982. In his habeas corpus petition, the Court held that it can order compensation for the unlawful detention. It awarded a further Rs 30,000, making Rs 35,000 with the earlier Rs 5,000, and left him free to sue for more.

In Nilabati Behera v. State of Orissa (1993), Suman Behera, about 22, was taken into police custody on 1 December 1987 and was found dead on a railway track the next day. The Court held it was a custodial death. Compensation under Articles 32 and 226 is a public law remedy based on strict liability. Sovereign immunity (the State's immunity from suit) is no defence. The Court ordered Rs 1,50,000 to his mother and Rs 10,000 costs. This is in addition to a civil suit.

Step 6: enforcing a writ

In Sebastian M. Hongray v. Union of India (1984), the Court's writ required the authorities to produce two men. The authorities could not. The Court held that they had committed civil contempt by wilful disobedience and by giving a distorted account of the facts. It awarded exemplary costs of Rs 1 lakh to each of two women and ordered the police to investigate.

Step 7: judicial review is part of the basic structure

In L. Chandra Kumar v. Union of India (1997), a seven-Judge Bench considered judicial review under Articles 226, 227 and 32. It held that this power is part of the basic structure and cannot be excluded. Tribunals may test the validity of laws, but only as a supplement to the High Courts (para 100).

Step 8: suspension in an Emergency

Article 32(4) allows suspension only as the Constitution provides. Article 359 is that provision. Since the 44th Amendment (20 June 1979), an order under it cannot touch Articles 20 and 21. In Additional District Magistrate, Jabalpur v. Shivkant Shukla (Habeas Corpus Case) (1976), a 4:1 Bench held that while an order suspended Article 21, no habeas corpus petition could be heard. The 44th Amendment changed this.

Don't confuse: Article 32 and Article 226

Point	Article 32	Article 226
Court	Supreme Court	Each High Court, within its territories
Purpose	Fundamental Rights only	Fundamental Rights and any other purpose
Nature	Itself a Fundamental Right	A constitutional power, not a Fundamental Right
Against whom	Mostly the State and authorities	Any person or authority, including a Government

Under Article 32. A newspaper challenges a State ban on its circulation as a breach of Article 19(1)(a). It goes straight to the Supreme Court.

Under Article 226. A tenant seeks a writ to compel an authority to perform a statutory duty that affects only an ordinary legal right. Only the High Court can hear it.

Common mistakes

Saying Article 32 can enforce any legal right. It enforces Part III rights only.
Saying Article 226 is a Fundamental Right. Article 32 is.
Saying the five writs are the only remedies. The Court can issue any suitable direction or order.
Forgetting res judicata. A merits dismissal by the High Court bars the same petition under Article 32.
Saying Article 32 can be suspended freely. Only as the Constitution provides, and not for Articles 20 and 21.

Apply it

Problem

The police give permission to an NGO to hold public meetings with loudspeakers all through the night. Neighbours say their right to sleep is violated. What remedies are available?

Issue. Which court can the neighbours approach, and for what relief?

Rule. Noise beyond the limits in the noise rules infringes Article 21 (In Re: Noise Pollution, 2005). A Fundamental Right can be enforced by a writ under Article 32 or Article 226.

Application. The right claimed is under Article 21. The neighbours can file a writ petition in the High Court under Article 226, or in the Supreme Court under Article 32. They can seek a mandamus to the police to enforce the Noise Pollution (Regulation and Control) Rules, 2000 and to withdraw the permission.

Conclusion. A writ of mandamus is the main remedy. The Court may also award compensation. The High Court is the easier forum.

Leading case laws

Romesh Thappar v. State of Madras (1950)
Facts. Madras banned the weekly "Cross Roads". The editor petitioned the Supreme Court directly.

Principle. Article 32 is a guaranteed remedy and itself a Fundamental Right.

Why it matters. The Court is the guarantor of Fundamental Rights.
Daryao v. State of Uttar Pradesh (1961)
Facts. Petitioners came to the Supreme Court after the High Court dismissed their writ petitions.

Principle. A dismissal on the merits bars a fresh Article 32 petition on the same facts.

Why it matters. It applies res judicata to Article 32.
Rudul Sah v. State of Bihar (1983)
Facts. An acquitted man stayed in jail for fourteen more years.

Principle. The Court may award compensation under Article 32.

Why it matters. It started monetary relief for violations of Fundamental Rights.
Nilabati Behera v. State of Orissa (1993)
Facts. A young man died in police custody.

Principle. Compensation is a public law remedy based on strict liability. Sovereign immunity is no defence.

Why it matters. It is the leading case on public law compensation.
L. Chandra Kumar v. Union of India (1997)
Facts. A challenge to tribunals that excluded the High Courts.

Principle. Judicial review under Articles 32, 226 and 227 is part of the basic structure.

Why it matters. Parliament cannot take away this jurisdiction.

How to write this answer in the exam

5-mark answer (Article 32)

Quote Article 32(1) and (2).
Say it is itself a Fundamental Right (Romesh Thappar).
List the five writs with one line each.
Contrast with Article 226.

10-mark answer (problem)

Name the right violated.
Article 32 and the writ to seek.
Article 226 as an alternative.
Compensation (Rudul Sah, Nilabati Behera).
Bars: res judicata, Article 359.
Conclusion: forum and relief.

Key points to remember

Article 32 is itself a Fundamental Right and a guaranteed remedy.
Five writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto.
Article 32 is for Part III rights only. Article 226 also covers any other purpose.
A merits dismissal by the High Court bars a fresh Article 32 petition (Daryao).
Compensation is a public law remedy (Rudul Sah; Nilabati Behera).
Judicial review under Articles 32, 226 and 227 is part of the basic structure.
Article 359 cannot touch Articles 20 and 21.

Quick self-test

1. Is Article 32 itself a Fundamental Right?

Yes. It is in Part III, and Romesh Thappar called the Court its guarantor.

2. Which writ questions a person's authority to hold a public office?

Quo warranto.

3. What did Nilabati Behera hold about sovereign immunity?

It is no defence to compensation under Article 32 or 226.