Analysis of Right to Constitutional Remedies


In Chapter III of the Indian Constitution, some fundamental rights are enshrined. However, the framers of the Constitution realised that just declaring such rights does not guarantee their implementation. Because they must be enforceable in a court of law in reality. The only reason they provided for a guaranteed remedy in the event of violation was for this reason. Any law that may be in conflict with the Fundamental Rights is prohibited by the state.

What are Fundamental Rights?

Fundamental rights are those that guarantee person equality in all aspects of life, regardless of race, colour, caste, religion, place of birth, or gender. Articles 12 through 35 of the Indian Constitution enumerate certain rights. In the event that these rights are violated, pre-determined punishments are imposed at the discretion of the judiciary.

They form the rampart of our Constitution in some way. If there is no instrument to legalize them, each of these Rights is meaningless. A component like this is included in Article 32. That is why it is the Constitution’s gem, delegated wonder, heart, and spirit.

Right to Constitutional Remedies:

Dr Ambedkar referred to Article 32 as the constitution’s “spirit” and “exceptionally heart.” It has been included in the fundamental structure regulation by the Supreme Court. Furthermore, it is underlined that the right to appeal to the Supreme Court cannot be interrupted unless the Constitution expressly allows it. This argues that, under Article 359, this right is suspended in the event of a national emergency. Article 32 establishes the Supreme Court as the protector and insurer of fundamental rights. Furthermore, the Apex Court has original jurisdiction over the power to issue writs. This means that rather than appealing, a person can approach SC directly for a remedy.

What is a Writ?

Writs are written orders issued by India’s Supreme Court to get a remedy if their fundamental rights are violated. The court wishes to issue an order ordering the performance of a certain act, or giving power and commission to have it done, either at the outset of a suit or other procedure or as an incidental to its progress. Parliament can also authorize any other court to issue similar writs under Article 32. Only the High Courts of Calcutta, Bombay, and Madras had the authority to issue writs before 1950. Article 226 gives all Indian high courts the authority to issue writs. They are based on English law and are referred to as “Prerogative writs” in English.

Article 32:

Article 32 guarantees the right to petition the Supreme Court in proper procedures for the enforcement of the rights conferred by this Part.

  • Article 32(1) is an essential safeguard for the protection of India’s people’s fundamental rights. It guarantees the right to bring a case before the Supreme Court for the enforcement of the Fundamental Rights enumerated in the Constitution.
  • Article 32(2) enables the Supreme Court to issue appropriate orders or directives, or writs, such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of the petitioner’s Fundamental Rights, whichever is suitable.
  • Article 32(3) authorizes Parliament to empower any other Court, by law, to exercise all or some of the powers vested in the Supreme Court by Art. 32 within the confines of its territorial jurisdiction (2). This can be done, however, without jeopardizing the Supreme Court’s authority under Article 32(1) and 32(2).

Article 226:

  • The non-obstante provision given in Clause 1 of Article 226 demonstrates that the High Court’s jurisdiction to issue writs orders and directions in inappropriate circumstances is separate from the Supreme Court’s powers under Article 32 of the constitution. In general, Article 226 has a significantly broader reach than Article 32.
  • Clause (2) of Article 226 limits the jurisdiction of this provision to a certain geographical area. The ability of the High Courts to use these powers is limited to their territorial jurisdiction. As a result, in terms of jurisdiction, the High Courts’ powers are limited.
  • A writ can be issued by the High Court: to a person or authority with a location or residence within the geographical jurisdiction of the court, or if the cause of action arises entirely or partially within the territorial jurisdiction of the high court.
  • Clause (3) of Article 226 protects against the negative effects of ex-parte interim orders issued by the High Courts under Article 226. The constitution features a carefully worded provision that is essentially based on natural justice principles, namely that no one should be prosecuted without first being heard.

Type of Writs:


Habeas corpus is a Latin phrase that roughly translates to “you may have the body.” This writ is issued in the form of an order requiring a person who is detaining another person to bring that person before the Court and explain why he is detaining that person. If the court determines that the person has been detained unlawfully, the court will order his release. The concept under which Habeas Corpus operates is that a person who has been unlawfully imprisoned in custody without due process of law is entitled to seek habeas corpus relief.

Who is eligible to apply for this writ – In most situations, the application is filed by the individual who has been unlawfully held, but in some cases, it can be made on behalf of the prisoner by anybody, such as a friend or relative.

In the case of Rudul Sah v. State of Bihar added a new dimension to judicial activism and raised a number of important issues, including the State’s liability for unlawful detention, the feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, and the propriety of the Supreme Court issuing a compensation order on a habeas corpus petition for enforcing the right to personal liberty.

In Nilabati Behera v. State of Orissa, the Orissa police kidnapped the petitioner’s son for interrogation, and he was never found. His body was discovered on a railway track while the petition was pending. A compensation of Rs. 1,50,000 was awarded to the petitioner.


Meaning:  A writ issued by a court to compel a lower court or a governmental person or entity to execute a specific act in order to remedy an earlier action or failure to act. It is used to compel public statutory authorities to execute their duties and act within the limitations, or to enforce different public rights. It can be utilized to bring about justice when there is an abuse of authority or a violation of the law.

Rule of Locus Standi: When a writ of mandamus is issued, it must be obeyed to the letter. The petitioner must show that he is entitled to have public duties enforced in his favour. The mandamus is “neither a writ of course nor a writ of right,” but it will be issued if the duty is in the nature of public duty and it specifically affects an individual’s right, and there is no other adequate remedy.

Conditions mandatory for the Issue:

  • For the fulfilment of the legal responsibility, the applicant should have a legal right.
  • The nature of the responsibility must be open to the public.
  • The right sought to be enforced must exist at the time the petition is filed.
  • For anticipating injury, a writ of Mandamus is not issued. However, anybody who is likely to be harmed by a public official’s order has the right to file a mandamus petition if the officer violates his statutory obligation.


In India, mandamus will apply not just to officers who are obligated to perform a public duty, but also to the government itself, as Articles 226 and 361 provide for proper legal action against the government.

Landmark Case Law:

Courts are hesitant to issue writs of mandamus against high-ranking officials such as the President and governor. Judges in the case of S.P. Gupta v. Union of India held that a writ against the President of India for determining the number of judges in the High Courts and filling vacancies could not be issued.


Meaning: A writ of prohibition, sometimes known as a “stay order,” is a legal document that directs a subordinate court or entity to refrain from acting beyond its authority.

Purpose: The main goal is to ensure that a lower court or tribunal’s jurisdiction is appropriately exercised and that it does not usurp jurisdiction that it does not have. As a result, a writ of prohibition is available during the course of the proceedings and prior to the ordainment.

Principle: The Principle: Prohibition is a preventative writ of law. This is based on the principle that “prevention is better than cure.”

Landmark Case Law:

A writ of prohibition was issued in the case of East India Commercial Co. Ltd v. Collector of Customs, directing an inferior Tribunal not to continue with the proceeding on the grounds that it is without or in excess of jurisdiction, or in contravention of the laws of the land, statutes, or otherwise.


Meaning: A writ of certiorari is given to overturn a decision made by a lower court, whereas a prohibition is imposed before the proceedings are completed. A writ of certiorari has always been issued against the acts or processes of a judicial or quasi-judicial body with the capacity to decide questions affecting the rights of subjects and obligated to act judicially.

Purpose: The writ of certiorari is not only negative in that it is used to stop someone from doing anything, but it also incorporates affirmative action. It is both preventative and curative in nature. When a clear injustice necessitates positive action, the authority of judicial review is unrestricted.

When it can be Issued?

Certiorari cannot be used to overturn simply administrative or ministerial orders; it can only be used to overturn judicial or quasi-judicial orders:

  • Having no jurisdiction or having too much jurisdiction
  • In breach of Natural Justice principles.
  • In violation of the law’s procedure.
  • If there appears to be a blunder in judgement

Landmark Case Laws:

The constitution bench held in T.C. Basappa v. T. Nagappa & Anr. that certiorari may and is often granted where a court acts I without jurisdiction or (ii) in excess of its jurisdiction.


Meaning: The writ of Quo Warranto (by what warrant) is used to investigate the legitimacy of a claim by a person or authority to perform in a public office to which they are not authorized. In the sense that the procedures assess the activities of the administrative authority that appointed the person, the writ of Quo Warranto is a form of judicial control.

When it can be Issued?

When a public office is in doubt and the matter is serious. It is not possible to submit a petition against a private corporation.

The State of the Constitution establishes the office.

Landmark Case Law:

The office must be open to the public and established by statute or the constitution itself. The writ of quo warranto was denied in the case of Jamalpur Arya Samaj v. Dr D. Ram on the grounds that a writ of quo warranto cannot be issued against a private business. It is also vital for the office to have a substantial nature.


Article 32 bestows upon the subjects extraordinary powers with immediate effect. Furthermore, when PILs are filed, writs are often issued against the state and are summoned against the state. The Constitution’s Writ Jurisdictions, on the other hand, contain privilege restrictions and are discretionary in nature, but they are unbounded in their breaking points. In any event, vigilance is practised. The logic of writs is closely aligned with our Constitutional procedures to ensure that citizens’ rights are not suffocated by self-aggrandizing authoritative or judicial activity.

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