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Article 32: Constitutional Remedies for Enforcement of Fundamental Rights

Overview:

• Article 32 of the Indian Constitution guarantees the right to constitutional remedies. It ensures that if any fundamental right is violated, a citizen can approach the Supreme Court for justice.
• The Supreme Court has the power to issue writs (orders) such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari to protect and enforce fundamental rights.
• Article 32 is considered the "heart and soul" of the Indian Constitution because it guarantees an effective remedy to anyone whose fundamental rights are violated.

Key Provisions of Article 32:

1. Article 32(1): Guarantee to Remedy

   • It guarantees that if a fundamental right is violated, a citizen can approach the Supreme Court for a remedy.

2. Article 32(2): Power of Supreme Court to Issue Writs

   • The Supreme Court has the power to issue directions, orders, or writs (like habeas corpus, mandamus, etc.) for the enforcement of fundamental rights.

3. Article 32(3): Power of Parliament to Confer Power to Issue Writs to Other Courts

   • The Parliament can empower other courts (like High Courts) to issue writs for enforcing fundamental rights.

4. Article 32(4): Suspension of Fundamental Rights

   • It allows for the suspension of fundamental rights in certain situations (like during a national emergency), but the Right to Constitutional Remedies cannot be suspended unless otherwise specified in the Constitution.

Significance of Article 32:

• Affirmation of Remedy: Ensures the right to approach the Supreme Court if a fundamental right is violated.
• Essence of Justice: Upholds the rule of law, ensuring that laws are supreme and must be followed.
• Ensured by Courts: The Supreme Court, High Courts, and other courts can all ensure that citizens' fundamental rights are protected.
• Power of Parliament: Parliament can enhance the jurisdiction of the Supreme Court to issue writs for purposes other than fundamental rights (under Article 139).

Writ Jurisdiction of the Courts:

• Supreme Court: Can issue writs only for enforcing fundamental rights (Article 32).
• High Courts: Have a wider jurisdiction and can issue writs not only for fundamental rights but also for other purposes (Article 226).

History of Writs in India:

• The concept of constitutional writs (such as habeas corpus, mandamus, etc.) was borrowed from the British Constitution, where they are known as prerogative writs.
• Before 1950, only the High Courts of Bombay, Madras, and Calcutta had the authority to issue writs. After the adoption of the Constitution, the Supreme Court gained this power under Article 32.

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Summary of Writs Under Article 32:

• Habeas Corpus: To release someone who has been unlawfully detained.
• Mandamus: To direct a public official or authority to perform a duty they have failed to do.
• Certiorari: To quash an order or decision made by a lower court or authority acting beyond its jurisdiction.
• Prohibition: To stop an inferior court or authority from continuing proceedings beyond its jurisdiction.
• Quo Warranto: To question the legality of a person holding a public office without proper authority.

Habeas Corpus: Overview

• Meaning: Habeas Corpus is Latin for "to have the body of" and protects individual liberty against unlawful detention.

Reasons for Issuing Habeas Corpus Writ

• Issued by Supreme Court (SC) or High Courts (HCs) under Articles 32 and 226 of the Indian Constitution.
• Orders the person who has detained another to bring the detainee before the court for legal examination.

Scope of Habeas Corpus

• Can be issued against both private and public authorities.
• Exceptions:
  1. Lawful Detention: If detention is lawful.
  2. Contempt Proceedings: For contempt of court or legislature.
  3. Competent Court Detention: If detention is by a competent court.
  4. Out of Jurisdiction: If detention occurs outside the court’s jurisdiction.

Hadiya Case: A Unique Example

• Hadiya was a 24-year-old homeopathy student who converted to Islam and married Shefin Jahan.
• Father’s Petition: Hadiya’s father filed a missing person report and a Habeas Corpus petition, alleging unlawful confinement.
• Accusations: Shefin Jahan was accused of having ties to radical groups. The National Investigation Agency (NIA) said Hadiya was brainwashed and forced into marriage, which the media called "love jihad.

Court Proceedings and Supreme Court’s Decision

• Kerala High Court’s Ruling: Annulled Hadiya’s marriage, citing psychological coercion and "love jihad."
• Supreme Court’s Intervention:
  • January 23, 2018 Decision: The SC ruled that no one, including the court, could question Hadiya’s choice to marry.
  • Court’s Stance: Marriage and personal choices of an adult are beyond court’s jurisdiction.
  • NIA’s Role: The NIA was barred from investigating the legitimacy of the marriage or the character of the husband.
  • Hadiya’s Statement: she appeared in court and confirmed that she had willingly married Shefin Jahan. The Supreme Court respected her choice and ruled that no one, including the court, could question her decision to marry him.

Key Takeaways

1. Individual Liberty: The case reaffirms the protection of personal liberty and the right to make choices regarding marriage.
2. Judicial Limitations: Courts are limited to assessing the legality of detention, not dictating personal choices.
3. Habeas Corpus: The writ ensures that individuals are not unlawfully detained, safeguarding their autonomy.

Mandamus: Overview

• Meaning: Mandamus is Latin for "We Command." It is a writ issued by the Supreme Court (SC) or High Courts (HCs) to order a public official to perform their duty or fulfill an obligation they have failed to do.

Purpose and Function of Mandamus Writ

• Enforcing Duty: Mandamus is issued to force public authorities or officials to resume their work or perform a duty they have neglected.
• Direction to Public Authority: It directs public authorities, including officials, bodies, tribunals, or the government, to fulfill their obligations.

Scope of Mandamus

• Applicable to:
  1. Public officials
  2. Public bodies
  3. Corporations
  4. Inferior courts and tribunals
  5. Government entities
• Inapplicable to: Private individuals (unlike Habeas Corpus writs).

Situations Where Mandamus Cannot Be Issued

1. Non-Statutory Instructions: For enforcing departmental instructions that don't have statutory force.
2. Discretionary Actions: To compel actions that are discretionary and not mandatory.
3. Contractual Obligations: For enforcing private contractual duties.
4. Against the President or Governors: Mandamus cannot be issued against the Indian President or State Governors.
5. Judicial Capacity of Chief Justice: Not applicable against the Chief Justice of a High Court in their judicial capacity.
6. Discretionary Remedy: It is a discretionary remedy, and High Courts may refuse if an alternate remedy exists (except in cases involving Fundamental Rights).

Mandamus and Fundamental Rights

• No Alternate Remedy: In matters related to Fundamental Rights, the availability of an alternate remedy does not prevent the issuance of Mandamus.
• Enforcement of Rights: Mandamus can be issued even for violations of ordinary rights, not just Fundamental Rights.

Types of Mandamus

• Positive Mandamus: Directs a public official or authority to perform a duty.
• Negative Mandamus: Can also direct officials to not implement a law or action if it is deemed unconstitutional.

Limitations and Reluctance of Courts

• Courts are generally hesitant to issue directions to the government to enact laws (e.g., the Supreme Court refused a plea to direct the government to enact a law against torture).

Key Takeaways

1. Mandamus: A writ that enforces performance of public duty.
2. Public Officials/Authorities: It can only be issued to public officials or bodies, not private individuals.
3. Discretionary: While it is discretionary, it is issued in cases of duty failure, especially in the context of rights violations.
4. Positive & Negative Mandamus: Can be issued both positively (to compel action) and negatively (to prevent unconstitutional actions).

Example:

Imagine a city’s traffic police department is supposed to set up traffic lights at a busy intersection to prevent accidents, but they have been ignoring the issue for a long time.

• Mandamus Writ Issued: If a citizen or a group of people complain to the High Court that the police are not doing their job and it is causing harm (like accidents), the court can issue a Mandamus writ.
• Court's Command: The court would tell the police to "We command you to install traffic lights at the intersection because it’s your duty to ensure safety on the roads."
• Result: The police would then have to carry out their duty, i.e., put up the traffic lights as ordered by the court.

Why Mandamus?

• Why it works: The traffic police have a legal duty to ensure road safety. Since they failed to do so, the court uses Mandamus to force them to act.

Real-World Example of Negative Mandamus:

Suppose the government passes a law that forces people to give up their land for a new project, and the law is considered unconstitutional by many experts.

• Mandamus Writ (Negative): A citizen could go to the court and ask the court to stop the government from enforcing this law.
• Court's Command: The court could issue a negative Mandamus, telling the government, "We command you not to implement this law because it goes against the Constitution."

In both examples, Mandamus is used to make sure public officials or the government do their duties or stop doing something unlawful.

Prohibition: Overview

• Meaning: Prohibition literally means "to forbid" and has a negative connotation. It is a writ issued by a higher court to prevent a lower court or authority from exceeding its jurisdiction or making decisions outside its legal boundaries.

Purpose of Prohibition

• Mandate of Prohibition: A higher court issues this writ to stop a lower court from taking action or continuing an action that it is not legally allowed to do.
• Scope:
  • It can only be issued against judicial and quasi-judicial authorities (like tribunals).
  • It cannot be issued against administrative authorities, legislative bodies, or private individuals or bodies.
• Direction: Unlike Mandamus, which directs action, Prohibition directs inaction.

Key Features of Prohibition

• Exceeding Jurisdiction: Prohibition is used to stop a court or authority from going beyond its powers.
• Prevents Wrongful Action: It is issued to prevent decisions or actions that a lower court is not authorized to make.

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1. Case: Ministers Not Under RTI (Delhi High Court) – Simple Explanation

Background:

• The Central Information Commission (CIC) made a decision in 2016 that ministers (like those in the Union Government and State Governments) should be treated as "public authorities" under the Right to Information (RTI) Act.
• This would mean that people could directly ask ministers questions using RTI applications, and the ministers would have to answer, just like government departments do.

The Issue:

• A man had filed an RTI request asking the Minister of Law and Justice about how often the minister met with the public. The CIC agreed with this and said that ministers are public authorities and should answer such questions.

What Happened in Court:

• The Delhi High Court disagreed with the CIC's decision.
• The court said that ministers are not public authorities under the RTI Act.
• The CIC had no authority to say ministers are answerable to the RTI Act because that decision was outside its legal powers.

The Court's Ruling:

• The Delhi High Court used a Prohibition writ to stop the CIC from enforcing this decision. This means the court forbade the CIC from declaring ministers as public authorities under RTI.

Why is this Important?

• RTI Requests to Ministers: The court's decision meant that people cannot directly ask ministers questions through RTI, which would have been a big change in how RTI works.
• The court stopped the CIC from making a decision that it was not allowed to make.

2. Simple Example of Prohibition

Imagine there is a school principal who is in charge of handling student discipline. One day, the principal decides to punish students for something that is not in the school’s rules.

• Action: The principal wants to suspend students for missing a class without following the school’s official procedure.

• Prohibition Writ: A higher authority (like the school board) might step in and issue a Prohibition writ to stop the principal from punishing the students. The writ would say, "We forbid you from suspending the students because the action you want to take is not allowed by the rules."

• Result: The principal is prevented from going beyond the rules, and the students are not wrongly punished.

Why Prohibition?

• The higher authority (school board) stopped the principal from acting outside their power or making a decision they were not allowed to make, which is what Prohibition is all about.

Certiorari: Overview

• Meaning: Certiorari is Latin for "to be certified" or "to be informed." It allows a higher court to review decisions or actions made by a lower court or authority and either transfer the case to itself or cancel (quash) the lower court’s decision.

Grounds for Issuing Certiorari Writ

• Excess of Jurisdiction: When a lower court exceeds its legal powers.
• Lack of Jurisdiction: When a lower court doesn’t have legal authority.
• Error of Law: When the lower court makes a mistake in interpreting the law.

Mandate of Certiorari Writ

• Issued by a higher court to a lower court or tribunal to:
  1. Transfer a pending case to the higher court.
  2. Quash (cancel) the order of the lower court.

Scope of Certiorari

• Originally, Certiorari was limited to judicial and quasi-judicial authorities (like tribunals).
• In 1991, the Supreme Court ruled that Certiorari could also be issued against administrative authorities if their actions affect the rights of individuals.

Key Features:

• Scope: Like Prohibition, Certiorari cannot be issued against legislative bodies or private individuals or organizations.
• Purpose: To correct errors made by lower courts or authorities by either transferring cases or quashing decisions.

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Simple Example of Certiorari:

Imagine a small administrative tribunal that issues a penalty against a citizen for violating a rule. The citizen believes the tribunal acted unfairly or made an error in applying the law.

• Certiorari Writ: The citizen could ask a higher court to review the case.
• Action: The higher court could issue a Certiorari writ, telling the tribunal to either transfer the case to the higher court or cancel (quash) the penalty if the tribunal made a mistake in applying the law.

Why Certiorari?

• It ensures that lower authorities do not act beyond their legal powers or make errors in interpreting the law.

Quo Warranto: Overview

• Meaning: Quo Warranto is Latin for "By what authority or warrant." This writ allows the court to review and question the authority of a person holding a public office.

Purpose of Quo Warranto

• It is used to inquire into the legality of a person’s claim to hold a public office.
• The court asks the person, "By what authority do you hold this position?" to ensure they are lawfully occupying the office.

Grounds for Issuing Quo Warranto

• It is issued when there is a doubt or challenge about the authority or legal right of someone holding a public office. The court investigates if the person was appointed or is holding the position legally.

Scope of Quo Warranto

• Public Office of Permanent Character: This writ can only be invoked if the position is a permanent public office created by a statute or the Constitution.
• Private or Ministerial Offices: It cannot be used against private individuals or for ministerial offices.
• Who Can Seek It: Unlike other writs, Quo Warranto can be filed by any interested person, not just the person directly aggrieved by the appointment.

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Simple Example of Quo Warranto:

Imagine a government official is appointed to a public office (like a director of a public corporation), but someone believes that the official was appointed without following proper procedures or that they don't have the required qualifications.

• Action: A person, even if not directly affected, can approach the court and ask, "By what authority does this person hold this office?"
• Court's Role: The court will then investigate whether the official was rightfully appointed and whether they have the legal authority to hold the position.

Why Quo Warranto?

• Purpose: To ensure that only legally appointed persons hold important public offices, protecting the integrity and legality of government positions.

Difference Between Writ of Prohibition & Certiorari

Aspect	Writ of Prohibition	Writ of Certiorari
Meaning	Prohibition means "to forbid" or "to stop".	Certiorari means "to be certified" or "to be informed".
Purpose	To prevent an inferior court or tribunal from exceeding its jurisdiction and continuing proceedings.	To quash (cancel) the order or decision of an inferior court or tribunal that acted beyond its jurisdiction.
Timing	Issued before an order is passed by the court or tribunal.	Issued after the order is passed by the court or tribunal.
Target Authority	Can only be issued against judicial and quasi-judicial authorities.	Can be issued against judicial, quasi-judicial authorities, and even administrative authorities affecting individual rights.
Type of Action	Prevents future action (inaction).	Quashes a past decision (action).
Example	A higher court stops a lower court from hearing a case it has no authority over.	A higher court cancels a decision made by a lower court that acted outside its powers.

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Summary of Writs:

Type of Writ	Meaning of the Word	Purpose of the Issue
Habeas Corpus	"You may have the body"	To release a person who has been unlawfully detained (in prison or private custody).
Mandamus	"We Command"	To ensure the performance of public duties by lower courts, tribunals, or public authorities.
Certiorari	"To be certified"	To quash the order already passed by an inferior court, tribunal, or quasi-judicial authority.
Prohibition	"To forbid"	To prohibit an inferior court from continuing proceedings in a case where it lacks jurisdiction.
Quo Warranto	"What is your authority?"	To restrain a person from holding a public office they are not entitled to.

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