Introduction

It is true that a declaration of fundamental rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is remedy which makes the right real. If there is no remedy there is no right at all. It was, therefore, in the fitness of the things that our Constitution-makers having incorporated a long list of fundamental rights have also provided for an effective remedy for the enforcement of these rights under Article 32 of the Constitution. Article 32 is itself a fundamental right.

Article 32 (1) guarantees the right to move to the Supreme Court by "appropriate proceedings" for the enforcement of the fundamental rights conferred by Part III of the Constitution. Clause (2) of Art. 32 confers power on the Supreme Court to issue appropriate directions or 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 of the Constitution.

Under clause (3) of Art. 32 Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or of the powers exercisable by the Supreme Court under clause (2). Clause (4) says that the right guaranteed by Article 32 shall not be suspended except as otherwise provided for the Constitution. Article 32 thus provides for an expeditious and inexpensive remedy for the protection of fundamental rights from legislative and executive interference.

The Supreme Court as protector and guarantor of Fundamental Rights

Under clause (2) of Article 32, the Supreme Court is empowered to issue appropriate directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of any fundamental rights guaranteed by Part III of the Constitution. By this Article the Supreme Court has been constituted as a protector and guarantor of fundamental rights conferred by Part III. Once a citizen has shown that there is infringement of his fundamental right the court cannot refuse to entertain petitions seeking enforcement of fundamental rights. The Supreme Court took it as its solemn duty to protect the fundamental right zealously and vigilantly.

Scope of clause (2) of Article 32

The language used in Article 32(2) is very wide. The power of the Supreme Court is not confined to issuing only writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, but any direction or order or writ whichever is appropriate to enforce the fundamental rights, nor it is bound to follow all the procedural technicalities, attached to it in English Law. These rights are all of English origin. The Supreme Court of India may not only issue the above writs but also directions, order or writs, similar to the above so far as to fit in with any circumstances peculiar to India.

Thus, the wording of Article 32(2) is so elastic that it permits all necessary adaptation without legislative sanction from time to time so as to enable effective enforcement of the fundamental rights.

Specific Writs

1. Habeas Corpus- "Habeas Corpus" is a Latin term which literally means "you may have the body". The writ is issued in the form of an order calling upon a person by whom another person is detained to bring that person before the Court and to let the Court know by what authority he has detained that person. If the cause shown discloses that detained person has been detained illegally the Court will order that he be released. Thus the main object of the writ is to give quick and immediate remedy to a person who is unlawfully detained by the person whether in prison or private custody.

In Kanu Sanyal v. District Magistrate, Darjeeling (AIR 1974 SC 510), the Supreme Court, however, held that while dealing with the application of writ of habeas corpus, production of the body of the person alleged to be unlawfully detained was not essential.

Who can apply for the writ- The general rule is that an application can be made by a person who is illegally detained. But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a friend or a relation. In an application for a writ of habeas corpus the Supreme Court will not follow strict rules of pleading nor place undue emphasis as to question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail would be sufficient to activate the Court into examining the legality of detention. The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be also used for protecting him from treatment inside jails.

2. Mandamus- The word "mandamus" means "the order". The writ of mandamus is thus an order by a superior court commanding a person or a public authority (including the Government and public corporation) to do or forbear to do something in the nature of public duty or in certain cases of a statutory duty. For instance, a licensing officer is under a duty to issue a licence to an applicant who fulfills all the conditions laid down for the issue of such licence. But despite the fulfillment of such conditions if the officer or the authority concerned refuses or fails to issue the licence the aggrieved person has a right to seek the remedy through a writ of mandamus.

When it will lie- The writ of mandamus can only be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority. The duty sought to be enforced must be a public duty, that is, duty cast by law. A private right cannot be enforced by the writ of mandamus.

When the duty is merely discretionary in nature the writ of mandamus will not lie. In State of M. P. v. Mandawara (AIR 1954 SC 493), the M. P. Government made a rule making it discretionary to grant dearness allowance to its employees at a particular rate. The Supreme Court held that the writ of mandamus could not be issued to compel the Government to exercise its power.

3. Prohibition- A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction, or acting contrary to the rules of natural justice. It is issued by a Superior Court to inferior courts for the purpose of preventing inferior Courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction.
4. Certiorari- A writ of certiorari is issued by a Superior Court (Supreme Court and High Courts) to an inferior court or body exercising judicial or quasi-judicial functions to remove a suit from such inferior court or body and adjudicate upon the validity of the proceedings or body exercising judicial or quasi-judicial functions. It may be used before the trial to prevent an excess or abuse of jurisdiction and remove the case for trial to higher Court. It is invoked also after trial to quash an order which has been made without jurisdiction or in violation of the rules of natural justice.

Grounds on which writ can be issued- The writ of certiorari is issued to a judicial or quasi-judicial body on the following grounds:

• (a) Where there is want of excess of jurisdiction;
• (b) Where there is error of law apparent on the face of the record but not error of a fact;
• (c) Where there is violation of procedure or disregards of principles of natural justice

5. Quo warranto- The words 'quo warranto' means 'what is your authority’. By this writ a holder of an office is called upon to show to the court under what authority he holds the office. The object of the writ of quo warranto is to prevent a person to hold an office which he is not legally entitled to hold. If the inquiry leads to the finding that the holder of the office has no valid title to it, the Court may pass an order preventing the holder from continuing in office and may also declare the office vacant. If the holder of a public office was initially disqualified to hold that office, the writ of quo warranto would not be issued if at subsequent stage that disqualification was removed and after the removal of the disqualification the incumbent concerned could have been appointed to the same post.

Who can apply- A writ of quo warranto can be claimed by a person if he satisfies the Court that:

• (1) the office in question is a public office; and
• (2) it is held by a person without legal authority.

An application for the writ of quo warranto challenging the legality of an appointment to an office of a public nature may lie at the instance of any private person, although he is not personally aggrieved or interested in the matter. It is not necessary that the petitioner for quo warranto must have legal right in the office. Any member of public can challenge the right of a person to hold a public office.

Distinction between Articles 32 and 226-

• It is to be noted that under Article 226, the High Court has also been given power of issuing writs. But the difference in the phraseology of the Arts. 32 and 226 brings out the marked difference in the nature and purpose of the right conferred by these Articles. Whereas the right guaranteed by Art. 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Art. 226 can be exercised not only for the enforcement of fundamental rights but for "any other purpose". Thus, the power of the High Court is wider than the power conferred by Article 32 on the Supreme Court.
• The jurisdiction conferred on the Supreme Court by Art. 32 is an important part of the 'basic structure' of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement when they are violated. Parliament can however empower the Supreme Court with such a power under Art. 139. But the power of the High Court to issue writs cannot be in derogation of the Supreme Court under Article 226. In other words, an order under Article 32 will supersede the orders of the High Court previously passed.
• An application under Article 32 may be made directly to the Supreme Court since Article 32 is itself a fundamental right. It is a substantive right not a mere procedural right. There is no need to resort to Article 226 before approaching the Supreme Court under Article 32.