Constitutional remedies: Articles 32 and 226, the writs and the courts as protectors

Detail

Why remedies matter

• A right is only useful if a person can enforce it. The Constitution therefore gives a way to go to court when a fundamental right is violated.
• Constitutional remedy means the legal way to get a violated fundamental right restored, through an order of the Supreme Court or a High Court.
• Two articles provide it:
• Article 32 gives the Supreme Court this power.
• Article 226 gives the High Courts this power.

Article 32: the right to constitutional remedies

• Right to constitutional remedies (Art. 32): a fundamental right to go straight to the Supreme Court to enforce fundamental rights.
• It is a fundamental right in its own place. A person does not need to go to a lower court first.

• Dr B.R. Ambedkar called it the "heart and soul" of the Constitution.

• Origin: Art. 32 was Draft Article 25 of the Draft Constitution of 1948. The Constituent Assembly debated it on 9 December 1948. Members called it "the crowning section" and "the very soul… and the very heart of the Constitution" [2].

• The four clauses of Art. 32 [2]:

Clause	What it says	Exam point
32(1)	The right to move the Supreme Court "by appropriate proceedings" to enforce Part III rights "is guaranteed"	The remedy is itself a fundamental right
32(2)	The Supreme Court may issue "directions or orders or writs", including habeas corpus, mandamus, prohibition, quo warranto and certiorari	The court is not limited to these five writs. It can also give directions and orders
32(3)	Parliament may by law let any other court use these powers within its local limits, without reducing the Supreme Court's own powers	Parliament has never used this power
32(4)	The right "shall not be suspended except as otherwise provided for by this Constitution"	The only route is Art. 359: during a National Emergency, the President may suspend the right to move courts for named fundamental rights

• Scope is narrow: Art. 32 covers only fundamental rights.

• Article 139 lets Parliament, by law, give the Supreme Court power to issue writs for other purposes as well. Parliament has not done this widely, so Art. 32 stays limited to fundamental rights.

• Basic structure: judicial review means the power of courts to examine laws and government actions and strike down those that break the Constitution. Judicial review under Arts. 32 and 226 is part of the basic structure, the core features of the Constitution that Parliament cannot destroy even by amendment (L. Chandra Kumar v. Union of India, 1997).

• Effect: tribunals can take over some work from the High Courts. But their decisions can still be challenged before a High Court, and the writ power cannot be taken away.

Article 226: writ jurisdiction of High Courts

• Writ jurisdiction of High Courts (Art. 226): every High Court can issue directions, orders or writs, including the five writs, to "any person or authority, including in appropriate cases, any Government" within its territory [3].
• Wider purpose: a High Court can act "for the enforcement of any of the rights conferred by Part III and for any other purpose" [3].
• "Any other purpose" means ordinary legal rights too, such as rights under a statute or a contract with the State.

• This wording comes from Draft Article 202 of 1948. The Constituent Assembly debated it on 7 June 1949 and 7 September 1949 [3].

• Cause-of-action rule (15th Amendment, 1963): a High Court can also issue writs where the cause of action (the events that gave rise to the case) arises "wholly or in part" in its territory. This applies even if the government, authority or person is based somewhere else [3].

• Interim orders (Art. 226(3)): suppose a High Court passes an interim order (a temporary order while the case is pending) without first hearing the other side. That side can apply to have the order cancelled.
• The court must decide the application within two weeks.

• If it does not, the interim order stands vacated (cancelled automatically) [3].

• No clash with Art. 32 (Art. 226(4)): the High Court's power "shall not be in derogation of" (does not reduce) the Supreme Court's power under Art. 32(2) [3].

• Discretionary: a High Court may refuse a writ. For example, it may refuse if another adequate remedy exists or if the petitioner delayed too long. Under Art. 32, the Supreme Court cannot refuse in the same way, because the remedy is itself a fundamental right.

	Art. 32 (Supreme Court)	Art. 226 (High Courts)
Purpose	Fundamental rights only	Fundamental rights "and for any other purpose"
Nature	Itself a fundamental right	A constitutional power, but discretionary (the court may refuse)
Territorial reach	Whole of India	The High Court's territory, or where the cause of action arose (15th Amendment, 1963)
Suspension	Only through Art. 359 (National Emergency)	Not a fundamental right, so Art. 359 does not suspend it in the same way. However, an Art. 359 order blocks enforcement of the named fundamental rights in every court
Can Parliament widen it?	Yes, through Art. 139	Already wide
Basic structure	Yes (L. Chandra Kumar, 1997)	Yes (L. Chandra Kumar, 1997)

The courts as protectors

• The Class 7 NCERT chapter calls the judiciary the "watchdog" of rights. The Class 11 NCERT chapter ends by calling the judiciary the protector of fundamental rights.
• Public Interest Litigation (PIL): a case filed in the public interest by any public-spirited person, even if their own rights were not violated.
• The old rule of locus standi (only the injured person can file a case) was relaxed for the poor and voiceless.
• Even a letter or postcard to the court can be treated as a writ petition. This route led to Hussainara Khatoon (1979), Asiad workers/PUDR (1982) and Nilabati Behera (1993).

The five writs

• Writ: a formal written order of a court telling an authority to do, or not to do, something. The five writs below come from English law. Both Art. 32(2) and Art. 226(1) name them [2][3].

1. Habeas corpus

• Meaning: Latin for "to have the body".
• What it does: the court orders the detaining person or authority to produce the detained person in court. If the detention is unlawful, the court orders their release.
• Against whom: both public authorities and private persons, for example a private person holding someone captive.
• Example: Rudul Sah filed a habeas corpus petition under Art. 32 after more than 14 years in jail despite being acquitted [4].

2. Mandamus

• Meaning: "we command".
• What it does: orders a public official, public body, corporation, lower court or tribunal to perform a legal duty it has failed to do.
• Not available against:
• the President or a Governor (they are personally protected by Art. 361);
• private persons or private bodies;
• a duty that is only a matter of choice (discretionary) and not compulsory.

3. Prohibition

• Meaning: "to forbid".
• What it does: a higher court stops a lower court or tribunal from going beyond its jurisdiction (its legal powers).
• Timing: preventive. It is issued while the case is still pending, before the final order.
• Against whom: only judicial and quasi-judicial bodies (courts and tribunals). It does not lie against administrative or legislative bodies.

4. Certiorari

• Meaning: "to be certified" or "to be informed".
• What it does: a higher court transfers a case from a lower court or tribunal to itself, or quashes (cancels) an order already passed.
• Timing: corrective (curative). It is issued after the order is made.
• Grounds: excess or lack of jurisdiction, or an error of law visible on the face of the record.
• Against whom: courts and tribunals. Today it also lies against administrative authorities whose orders affect people's rights.
• (NCERT: describes certiorari only as an order to transfer a case to a higher court.)

	Prohibition	Certiorari
When	While proceedings are pending	After the order is passed
Nature	Preventive (stops)	Curative (cancels or transfers)
Against	Courts and tribunals only	Courts, tribunals, and authorities affecting rights

5. Quo warranto

• Meaning: "by what authority".
• What it does: asks a person to show by what legal right they hold a public office. If they have no right, they are removed.
• Conditions:
• the office must be substantive and public, created by statute or the Constitution;

• it does not apply to private or ministerial offices.

• Who can seek it: any person, not only the person harmed.

• Example: in Centre for PIL v. Union of India (2011), the Supreme Court quashed P.J. Thomas's appointment as Central Vigilance Commissioner (CVC).

Compensation as a public-law remedy

• Compensatory jurisprudence: courts can order the State to pay money to a person whose fundamental right it violated. This is done directly in a writ case under Art. 32 or 226. The person does not need to file a separate civil suit.
• Rudul Sah v. State of Bihar (1983): the case that started this approach.
• Rudul Sah stayed in jail for over 14 years after acquittal [4].
• He filed a habeas corpus petition under Art. 32 for release, and also asked for compensation [4].
• The Supreme Court ordered the State to pay ₹30,000 more, on top of ₹5,000 already paid, within two weeks [4].

• Logic: if Art. 32 could only release a person and never compensate them, the right to life and liberty (Art. 21) would lose much of its meaning.

• Nilabati Behera v. State of Orissa (1993):

• A mother wrote a letter to the Supreme Court about her 22-year-old son's death in police custody.
• Held: compensation under Art. 32 or 226 is a public-law remedy, so sovereign immunity is no defence. (Sovereign immunity is the old idea that "the State cannot be sued for acts done in its sovereign role".)

• Sovereign immunity may still matter in an ordinary tort (civil wrong) suit. It does not protect the State in a writ case.

• D.K. Basu v. State of West Bengal (1997):

• Laid down arrest and detention safeguards (Arts. 21, 22). Examples: the police must wear identification, prepare an arrest memo and inform a relative.
• Confirmed that monetary compensation for custodial violence is part of the public-law remedy.

Other protectors of rights

• Statutory commissions:
• National Human Rights Commission (NHRC), under the Protection of Human Rights Act, 1993;
• National Commission for Women;
• National Commission for Minorities;
• National Commission for Scheduled Castes (a constitutional body under Art. 338).

• These bodies can inquire into complaints and recommend action. Unlike courts, they cannot issue writs.

• Civil society groups:

• People's Union for Civil Liberties (PUCL);

• People's Union for Democratic Rights (PUDR). PUDR's PIL produced the Asiad workers case (1982).

• Citizen tools such as grievance portals, RTI, the media and civil society are covered in the transparency-accountability and civil-society-pressure-groups notes.

Landmark cases on fundamental rights

Case	Year	Article	Principle
A.K. Gopalan	1950	21, 22	Any procedure made by law is enough; each right is a separate box
Romesh Thappar	1950	19(1)(a)	Freedom of the press; led to the 1st Amendment (1951)
Kedar Nath Singh	1962	19(2)	Sedition limited to incitement to violence
Kesavananda Bharati	1973	368	Basic structure doctrine; the right to property is not part of it
Maneka Gandhi	1978	14, 19, 21	Procedure must be fair, just and reasonable; overturned Gopalan's "separate boxes" view
Hussainara Khatoon	1979	21	Right to a speedy trial (undertrial prisoners)
Bachan Singh	1980	21	Death penalty only in the "rarest of rare" cases
Asiad workers (PUDR)	1982	23	Paying below the minimum wage = forced labour
Rudul Sah	1983	21, 32	Compensation in a writ case
Olga Tellis	1985	21	Right to livelihood (pavement dwellers)
Nilabati Behera	1993	21, 32	No sovereign immunity in public-law compensation
L. Chandra Kumar	1997	32, 226	Judicial review is basic structure
Vishaka	1997	14, 15, 19, 21	Guidelines on sexual harassment at the workplace
D.K. Basu	1997	21, 22	Arrest safeguards
T.M.A. Pai	2002	30	Minority status is judged state-wise
Centre for PIL (P.J. Thomas)	2011	32 (quo warranto)	CVC appointment quashed
Selvi	2010	20(3), 21	No forced narco-analysis
Shreya Singhal	2015	19(1)(a)	Section 66A of the IT Act, 2000 struck down
K.S. Puttaswamy	2017	21	Privacy is a fundamental right
Navtej Singh Johar	2018	14, 15, 21	Section 377 IPC read down; consensual same-sex relations decriminalised
Joseph Shine	2018	14, 15, 21	Adultery (s.497 IPC) struck down
Anuradha Bhasin	2020	19	Internet shutdowns must meet proportionality
Supriyo Chakraborty	2023	21	No fundamental right to marry; same-sex marriage left to Parliament
M.K. Ranjitsinh	2024	14, 21	A right against the adverse effects of climate change

Prelims Hooks

• Art. 32(3): Parliament may empower other courts to issue writs. Never used. Common trap: "District Courts can issue writs under Art. 32."
• Art. 32(4) + Art. 359: the right to move the Supreme Court can be suspended only during a National Emergency, through a Presidential order under Art. 359.
• Art. 226 is wider than Art. 32: it covers fundamental rights "and for any other purpose". Art. 139 lets Parliament widen the Supreme Court's writ power.
• 15th Amendment (1963): a High Court can issue writs where the cause of action arises, even if the authority is based outside its territory.
• Art. 226(3): an interim order passed without hearing the other side is automatically vacated if the High Court does not decide the application to cancel it within two weeks.
• Habeas corpus lies against private persons too. Mandamus does not lie against the President, Governors or private persons.
• Prohibition = preventive (pending case, judicial bodies only). Certiorari = curative (after the order; now also against administrative authorities).
• Quo warranto: any person may file it. Example: P.J. Thomas's appointment as CVC quashed (Centre for PIL, 2011).
• Rudul Sah (1983) began compensation under Art. 32. Nilabati Behera (1993) said there is no sovereign-immunity defence. L. Chandra Kumar (1997) said judicial review under Arts. 32/226 is basic structure.
• Draft Article 25 → Art. 32 (debated 9 Dec 1948). Draft Article 202 → Art. 226.

Mains Points

• Remedy as a right: Art. 32 turns Part III from a list of promises into enforceable rights. Ambedkar's "heart and soul" remark and L. Chandra Kumar (1997) explain why no amendment can remove it. Art. 359 during the 1975-77 Emergency showed how weak the safeguard becomes when courts cannot be approached.
• Supreme Court or High Court first? Art. 32 is a right, but the Supreme Court often sends petitioners to the High Court under Art. 226, which is wider and closer to them.
• For: this reduces the Supreme Court's backlog.
• Against: it weakens a guaranteed fundamental right.

• A balanced answer: hear Art. 32 cases directly where the harm is urgent (liberty, custodial violence) or affects the whole country.

• Compensatory jurisprudence: Rudul Sah, Nilabati Behera and D.K. Basu made the State pay for violating rights, and rejected sovereign immunity. This deters abuse and gives quick relief.

• Gaps remain: the amounts are fixed case by case, and India has no comprehensive law on custodial torture.

• Reform ideas: a statutory compensation scheme and a law against torture.

• PIL and the "watchdog" role: relaxed standing gave the poor access to courts (Hussainara, Asiad, Olga Tellis).

• Critics warn of judicial overreach and misuse of PIL.
• A balanced answer pairs court action with stronger NHRC and commission powers and civil-society monitoring (PUCL, PUDR).