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Constitutional Remedy under Articles 32 and 226 of the Constitution of India



Constitutional Remedy under Articles 32 and 226 of the Constitution of India

The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance. In addition, enforcement also depends upon the degree of independence of the Judiciary and the availability of relevant instruments with the executive authority. Indian Constitution, like most of Western Constitutions, lays down certain provisions to ensure the enforcement of Fundamental Rights. These are as under:

(a) The Fundamental Rights provided in the Indian Constitution are guaranteed against any executive and legislative actions. Any executive or legislative action, which infringes upon the Fundamental Rights of any person or any group of persons, can be declared as void by the Courts under Article 13 of the Constitution.

(b) In addition, the Judiciary has the power to issue the prerogative writs. These are the extra-ordinary remedies provided to the citizens to get their rights enforced against any authority in the State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts as well as the Supreme Court may issue the writs.

(c) The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by the State, except during the period of emergency, as laid down in Article 359 of the Constitution. A Fundamental Right may also be enforced by way of normal legal procedures including a declaratory suit or by way of defence to legal proceedings.

However, Article 32 is referred to as the "Constitutional Remedy" for enforcement of Fundamental Rights. This provision itself has been included in the Fundamental Rights and hence it cannot be denied to any person. Dr. B.R.Ambedkar described Article 32 as the most important one, without which the Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and guarantor of these Rights. An application made under Article 32 of the Constitution before the Supreme Court, cannot be refused on technical grounds. In addition to the prescribed five types of writs, the Supreme Court may pass any other appropriate order. Moreover, only the questions pertaining to the Fundamental Rights can be determined in proceedings against Article 32. Under Article 32, the Supreme Court may issue a Writ against any person or government within the territory of India. Where the infringement of a Fundamental Right has been established, the Supreme Court cannot refuse relief on the ground that the aggrieved person may have remedy before some other court or under the ordinary law.

The relief can also not be denied on the ground that the disputed facts have to be investigated or some evidence has to be collected. Even if an aggrieved person has not asked for a particular Writ, the Supreme Court, after considering the facts and circumstances, may grant the appropriate Writ and may even modify it to suit the exigencies of the case. Normally, only the aggrieved person is allowed to move the Court. But it has been held by the Supreme Court that in social or public interest matters, any one may move the Court. A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution under their respective Writ Jurisdictions. There are mainly five types of Writs –

(i)                Writ of Habeaus Corpus,

(ii)              Writ of Mandamus,

(iii)            Writ of Quo-Warranto,

(iv)             Writ of Prohibition, and

(v)              Writ of Certiorari.

(I) Writ of Habeas Corpus:

It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release

(II) The Writ of Mandamus:

Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs.

(III) The Writ of Quo-Warranto:

The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant.

(IV) The Writ of Prohibition:

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right is affected.

(V) The Writ of Certiorari:

Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. There are several conditions necessary for the issue of Writ of Certiorari, which are as under:

(a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially.

(b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.

 

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 Sundar February 1, 2012
The Jurisdiction of Supreme court u/Art.32 is broader than the Jurisdiction of High court u/art.226 or both power are equal? Please clarify and reply me to my mail id is sundar.indiapost@gmail.com
 dsjat February 5, 2012
The Jurisdiction of Supreme court u/Art.32 is broader than the Jurisdiction ofHigh court u/art.226 or both power are equal? Please clarify and reply me to my mail id is


wodsjat83@gmail.com
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Shaik January 10, 2013
The 7th circuit court vaeatcd the sentence of a man that had a misdemeanor DV conviction for possession of a shotgun finding that he may still have second amendment rights. Just want to leave a comment on what one has said about our god given rights.Tony Gibart is worried that this case might leave a wrong impression that firearm restrictions imposed on those convicted of domestic violence are somehow different in kind from similar restrictions on felons and those deemed mentally incompetent. The truth is they should be different. The key word here is misdemeanor. They can be trusted to hold public office, to vote and sit on a jury, but they cant own a gun, makes a whole lot of sense. Tony Gibart claims to have all this evidence, that seven victims have been killed with firearms with previous DV convictons. Guess what they still got there hands on guns. Out of all statistics shown I wonder if they ever show any about those being previosly convicted staying out of trouble lets say ten or twenty years, I doubt it because they claim that is goes unreported, and they feel that it give them justification to judge everybody the same. The truth is not everybod with a misdemeanor domestic violence conviction comes home on a daily basis and manipulates every aspect of there spouses lives. I wonder if the statistics of those with felony and misdemeanor convictions are separate, if not they should be because they are different classes of offenders. The statistics that are shown are only partial truths. If Skoines crime was severe enough to lose his second amendment rights he should of been charged with a felony he was not, this is a failure of the judges if they are failing to do so. Good people are losing there right to bear arms as something as a silly argument. I know a few women that claim that they are tired of people like tony gibart meddling with there lives over someting as silly as a argument with there spouse. If any type of intervention was required it should have been classified as a felony. Right now it is easier for violent felons to get there second amendment rights restored than those convicted with a misdemeanor domestic violence conviction. I guess it is okay to take a risk of someone being a menace to an entire society over family issues. To strip one of there rights over what they think he or she might do is purely unconstitutional. To treat felons better that misdemeanants is unconstitutional. The lautenberg goes far beyond domestic violence take this terror watch list for example, they are talking about putting returning veterans from iraq and afgahanistan on it that could strip them of there second amendment rights. This is a slap in the face to our men and woman serving in uniform. Might I remind Tony Gibart that if it werent for our veterans that they would not be able to exercise any right. It is time that the government and people like tony gibart to stop micro managing americans life. They are trying to strip away the second amendment slowly with amendment after amendment. To sentence one for exercising his constitutional right is tyrany. How can one lose a constitutional right when the offense was not severe enough to lose core civil rights. The ex po facto thing has been argued time and time again, how can memebers of congress dare say that losing your god giving constitutional right is not considered punishment. America please wake up.
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