Saturday, June 22, 2024

Right To Constitutional Remedies


The Right to Constitutional Remedies is a fundamental right in the Indian Constitution that empowers citizens to approach the Supreme Court or High Courts to seek enforcement of other fundamental rights. Enshrined in Article 32 of the Indian Constitution, this right is considered the “heart and soul” of the Constitution, as described by Dr. B.R. Ambedkar. It ensures that all other fundamental rights are not mere paper declarations but have a mechanism for enforcement.

Historical Context

The concept of the Right to Constitutional Remedies has its roots in the historical struggle for justice and civil liberties. The framers of the Indian Constitution were deeply influenced by the injustices faced during the colonial rule and aimed to create a legal framework that would prevent such abuses. The inclusion of this right was a direct response to the need for a robust mechanism to protect the fundamental rights of citizens.

Article 32: The Heart and Soul of the Constitution

Article 32 provides the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution. It grants the Supreme Court the power to issue directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any of the rights conferred by Part III. This Article also implies that the right to move the Supreme Court for the enforcement of fundamental rights cannot be suspended except as otherwise provided by the Constitution.

Types of Writs

  1. Habeas Corpus: This writ is a bulwark of individual liberty against arbitrary detention. It commands the detaining authority to produce the detained individual before the court and justify the detention.
  2. Mandamus: This writ is issued to direct a public official, a public body, a corporation, an inferior court, or the government to perform a public duty owed to the petitioner.
  3. Prohibition: This writ is issued by a superior court to prohibit an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice.
  4. Quo Warranto: This writ is issued to challenge the legality of a person’s claim to a public office.
  5. Certiorari: This writ is issued to transfer a matter from an inferior court or tribunal to a superior court for review.

Significance of Article 32

Article 32 is significant because it provides a guaranteed and immediate remedy for the enforcement of fundamental rights. It is directly accessible to individuals, ensuring that justice is not delayed. The presence of this right strengthens the position of the judiciary as the protector and guarantor of fundamental rights.

Judiciary’s Role

The judiciary, through Article 32, plays a critical role in upholding the Constitution and ensuring that the executive and legislative branches do not overstep their boundaries. The Supreme Court has used this power to enforce fundamental rights in numerous landmark cases, ensuring that the principles of justice, liberty, and equality are upheld.

Landmark Judgments

Several landmark judgments have highlighted the importance and scope of the Right to Constitutional Remedies:

  1. Keshavananda Bharati v. State of Kerala (1973): This case established the basic structure doctrine, affirming that the fundamental framework of the Constitution cannot be altered.
  2. Maneka Gandhi v. Union of India (1978): The Supreme Court expanded the interpretation of Article 21, ensuring that the right to life and personal liberty cannot be curtailed except by a just, fair, and reasonable procedure.
  3. S.R. Bommai v. Union of India (1994): The Supreme Court held that the proclamation of President’s Rule is subject to judicial review, emphasizing the importance of federalism and democratic principles.
  4. Vineet Narain v. Union of India (1998): This case led to significant reforms in the Central Bureau of Investigation (CBI), ensuring its independence and accountability.
  5. Navtej Singh Johar v. Union of India (2018): The Supreme Court decriminalized consensual homosexual acts, thereby upholding the principles of equality and non-discrimination.

Article 226: A Wider Scope

While Article 32 provides remedies through the Supreme Court, Article 226 empowers the High Courts to issue writs for the enforcement of fundamental rights and for any other purpose. This makes the scope of Article 226 wider as compared to Article 32, as it is not limited to the enforcement of fundamental rights alone. This provision ensures that individuals can seek redressal at a more localized level, making justice more accessible.

Suspension of the Right to Constitutional Remedies

The Right to Constitutional Remedies can be suspended during a state of emergency as per Article 359 of the Constitution. During an emergency, the President can declare that the right to move any court for the enforcement of such of the fundamental rights as may be specified will remain suspended for the period the emergency is in force. This provision has been a subject of debate and criticism, especially considering the misuse of emergency powers during the Emergency period (1975-1977) in India.

Comparative Perspective

United States

In the United States, the enforcement of constitutional rights is primarily through the judicial system. The U.S. Supreme Court, through its power of judicial review established in Marbury v. Madison (1803), plays a crucial role in interpreting and enforcing the Constitution. The writ of habeas corpus is a significant remedy available to individuals, similar to its importance in Indian law.

United Kingdom

The United Kingdom does not have a written constitution, and the enforcement of rights is largely based on common law and statutory protections. The Human Rights Act 1998 incorporates the European Convention on Human Rights into domestic law, providing remedies for the violation of human rights.

Challenges and Criticisms

While the Right to Constitutional Remedies is a robust mechanism for the protection of fundamental rights, it faces several challenges:

  1. Judicial Backlog: The Indian judiciary is plagued by a significant backlog of cases, leading to delays in the enforcement of rights.
  2. Accessibility: Despite the provision of direct access to the Supreme Court, the cost and complexity of legal proceedings can be prohibitive for many citizens.
  3. Suspension during Emergencies: The provision to suspend the right to constitutional remedies during emergencies raises concerns about potential misuse and the protection of civil liberties.
  4. Overburdened Judiciary: The increasing number of cases and the expanding scope of judicial review put additional pressure on the judiciary, impacting its efficiency and effectiveness.


The Right to Constitutional Remedies is a cornerstone of the Indian democratic framework, ensuring the protection and enforcement of fundamental rights. It empowers citizens to hold the state accountable and provides a robust mechanism for redressal. While it faces challenges such as judicial backlog and accessibility issues, its significance in upholding the rule of law and safeguarding civil liberties cannot be overstated.

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