Article 32-35

Article 32

(Constitutional Remedies for Enforcement of Fundamental Rights)

• It is one of the fundamental rights listed in the Constitution that each citizen is entitled. Article 32 deals with the ‘Right to Constitutional Remedies’. It affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution. It states that the Supreme Court “shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.

The very soul of the constitution and the very heart of it

• Article 32(1) : Guarantee to remedy
• Article 32(2) : Power of supreme court to issue writs 
• Article 32(3) : Power of parliament to confer the power to issue writs to other courts
• Article32(4) : Suspension of Fundamental Rights

Significance

• Article 32 affirms the right to move the Supreme Court if a fundamental right is violated.
• The essence of justice lies in Rule of law i.e. supremacy of law
• Ensured by Supreme Court, High Court and lower courts

Power of Parliament to enlarge writ jurisdiction of the Supreme Court

• The Parliament, under Article 139, may by law confer on the Supreme Court power to issue directions, orders or writs including writs of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them, for any purposes other than those mentioned in Clause(2) of Article 32.
• The writ jurisdiction of the High Court is wider than the writ jurisdiction of the Supreme Court. The Supreme Court has power to issue writs only for the purposes of enforcement of fundamental rights whereas the High Court has the power to issue writs for the purposes of enforcement of fundamental rights and also for any other purposes.
• For giving similar jurisdiction to the Supreme Court, the need is for a law made by the Parliament and there is no need for an amendment of the Constitution.

Writs

Writs are a written order from the Supreme Court or High Court that commands constitutional remedies for Indian Citizens against the violation of their fundamental rights. The supreme court and High courts have the power to issue writs in the nature of habeas corpus, quo warranto, mandamus, certiorari, prohibition, etc., under Arts. 32 and 226 respectively.

• Borrowing from Britain: Constitutional writs have been borrowed in India from the British Constitution where they are known as ‘Prerogative writs’.
• Before 1950, only the high courts of Bombay, Madras and Calcutta could issue writs.

Habeas Corpus

• About: The Latin meaning of the word Habeas corpus is ‘To have the body of.’ This protects the Fundamental Right of individual liberty against illegal detention.
• Reason for Issuing Habeas Corpus Writ: The Habeas Corpus writ is issued by the Supreme Court/High Court.
• Under Habeas Corpus Writ, SC/HCs orders one person who has arrested another person to bring the body of the latter before the court.
• Scope: It can be issued by the SC/HCs against both private and public authorities. Habeas Corpus Writs cannot be issued in the following situations-
  • When detention is lawful
  • When the proceeding is for contempt of a legislature or a court
  • Detention is by a competent court.
  • Detention is outside the jurisdiction of the court.

Case laws

• Hadiya Case: A unique Case of Habeas Corpus Background of the case
  • Hadiya is a 24-year student of homoeopathy from Kerala who converted to Islam before getting married to Shefin Jahan, a Muslim man.
  • In early 2016, her father initially filed a missing person report with the police and later filed a Habeas Corpus petition in the Kerala High Court to trace her.
  • Shefin Jahan is on the National Investigation Agency (NIA) radar.
  • Both NIA and Hadiya’s father claimed Jahan was a recruiter for radical groups.
  • After the petition and on NIAs report to the Supreme Court which stated that Hadiya was a victim of indoctrination and psychological kidnapping i.e. she was brainwashed to accept Islam and marry Jahan, the Kerala High Court annulled the marriage.
  • This case was popularised by the Indian media as a case of love jihad.
  • A plea was filed by Hadiya’s husband. The Supreme Court bench comprising Justices A M Khanwilkar and D Y Chandrachud examined the plea.
  • On January 23, 2018, the judges proclaimed the decision that no one including the SC can question Hadiya’s choice of marrying a person and that the NIA cannot investigate whether she married a good person or a bad person.
  • When it was stated that “Marriage is only a device to legitimise her illegal confinement,” the Supreme Court said that “Who is the person to tell the court? She must say. She is an adult. She appears in court and says she is married. What can the court do?”
  • Thus, the court alienated itself from questioning Hadiya’s choice for a husband.

Mandamus

• About: Mandamus means ‘We Command’. The SC/HCs issue Mandamus writs to order the public official who has failed to perform his duty or refused to do his duty.
  • Mandamus Writ is issued by the courts to force public authorities to resume their work.
  • Mandamus Writ is issued by courts to direct a public authority to do its duty.
• Scope: Besides public officials, Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal, or government for the same purpose.
• Mandamus Writ cannot be issued against Private individuals (unlike Habeas Corpus).
• Mandamus Writ can’t be issued in the following situations-
  • For enforcing departmental instruction that does not possess statutory force
  • For ordering someone to work when the kind of work is discretionary and not mandatory
  • For enforcing a contractual obligation
  • Mandamus writ can’t be issued against the Indian President or State Governors
  • Mandamus writ can’t be issued against the Chief Justice of a High Court acting in a judicial capacity.

Note: Mandamus is a discretionary remedy and High Courts may refuse to grant it where some alternate remedy is available.

• However, in the matters of enforcement of Fundamental Rights, the availability of an alternative remedy does not weigh so much.
• It is issued when one or the other organisation from Judiciary, Executive or Legislature refuses to exercise its jurisdiction. If S.H.O of as particular Police Station refuses to arrest a criminal politician accused of rape or other heinous crime.
• High Courts can issue these writs even for violation of Ordinary rights.
• Mandamus can be issued even negatively, to direct a public official not to implement a law which is unconstitutional. So, Mandamus works both ways: Positively as well as negatively
• The Courts are normally reluctant to issue any direction to Govt. for making a Law Recently former Law Minister moved S.C. to issue directions to Govt. to enact a Law against Torture. But S.C. refused.

Prohibition

• About: Literally, it means ‘to forbid’. [negative connotation] Prohibition writ directs inactivity on the part of lower judicial courts.
• Mandate of ‘Prohibition’: It is issued by a higher court against a lower court to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
• Scope: Prohibition writ can only be issued against judicial and quasi-judicial authorities.
  • Prohibition Writ can’t be issued against administrative authorities, legislative bodies and private individuals or bodies.
  • Thus, unlike the mandamus that directs the activity, the prohibition directs inactivity.

Case laws

Ministers not under RTI: Delhi High Court

• The Delhi High Court has set aside the Central Information Commission (CIC) order declaring ministers as “public authorities” under the transparency law.
• Delhi High Court overturned the 2016 order of the CIC, declaring the “ministers in the Union Government and all State Governments as public authorities” under the Right to Information (RTI) Act.
• Clarifying its stance, H.C. said that there was no occasion for the CIC to enter upon the question as to whether a Minister is the public authority under the Section 2(h) of the Act. Further, directions which are issued by the CIC are also wholly outside the scope of the matter before CIC.

Analysis: The CIC directive that ministers were answerable under the RTI Act would mean that people can directly send the questions to a minister by filing an RTI application which will be answered by the public information officer in his office. The case emanates from the application filed by a man in 2014 before the Additional Private Secretary, Minister of Law and Justice seeking to know the time period of minister or minister of state meeting the general public.

Certiorari

• About: Certiorari meaning ‘To be certified’ or ‘To be informed.’ power of the higher court to remove a proceeding from a lower court and bring it before itself.
• Grounds for issuing Certiorari Writ: The Writ of Certiorari is issued on the following grounds-
  • An excess of jurisdiction or
  • Lack of jurisdiction or
  • An error of law.
• Mandate of Certiorari Writ: It is issued by a higher court (in authority) to a lower court or tribunal ordering them-
  • Either to transfer a case pending with them to itself or
  • Quash the order of the lower court in a case.
• Scope:
  • Initially, Certiorari Writ was issued only against judicial and quasi-judicial authorities. However, in the year of 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals.
  • Like prohibition, certiorari is also not available against the legislative bodies and also the private individuals or the bodies.

Quo Warranto

• About: Literal meaning of ‘Quo-Warranto’ is ‘By what authority or warrant.’ It reviews the actions of the administrative authorities who make the appointments to the public offices.
  • The court enquiries into the legality of a claim of a person to a public office using the writ of ‘Quo-Warranto’.
• Grounds for issuing Quo-Warranto: This writ is issued by the court to public officials to enquire about what authority they hold in public office.
• Scope:
  • The Writ of Quo-Warranto can be invoked only when the substantive public office of a permanent character created by a statute or by the Constitution is involved.
  • The Writ of Quo-Warranto is not available against the private or ministerial office.
  • Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

Difference between Writ of Prohibition & Certiorari

• A writ of prohibition is used to prevent an inferior court or tribunal to proceed the trial in excess of its jurisdiction whereas a writ certiorari is issued to quash the order of an inferior court or tribunal in excess of jurisdiction.
• A writ of prohibition is used before the order is passed by the court whereas a writ of certiorari is used to nullify an order already passed by the court.
• Prohibition can be issued only against judicial and quasi-judicial authorities whereas Certiorari can be issued even against administrative authorities affecting rights of individuals.

Type of Writ	Meaning of the word	Purpose of issue
Habeas Corpus	You may have the body	To release a person who has been detained unlawfully whether in prison or in private custody.
Mandamus	We Command	To secure the performance of public duties by lower court, tribunal or public authority.
Certiorari	To be certified	To quash the order already passed by an inferior court, tribunal or quasi judicial authority.
Prohibition		To prohibit an inferior court from continuing the proceedings in a particular case where it has no jurisdiction to try.
Quo Warranto	What is your authority?	To restrain a person from holding a public office which he is not entitled.

Article 33

(Restrictions on Fundamental Rights of Members of Armed Forces)

It is an exception to the fundamental rights conferred by Part III of the Constitution. This Article empowers the Parliament to restrict or abrogate by law fundamental rights in the application to

• The members of the armed forces
• The Forces charged with the maintenance of public order

The 50th Amendment Act amended Article 33 and extended its scope by including two more categories of persons connected with armed forces whose fundamental rights could be restricted by Parliament by law. It now includes also:

• The persons employed in any bureau or other organisation established by the State for purposes of intelligence.
• Persons employed in connection with the tele-communication system setup for purposes of any Force, bureau or organisation referred to in clauses (a) to (c )of Article 33 of the Constitution.

The object of this restriction under this Article is to ensure the proper discharge of their duties and maintenance of discipline amongst them.

 This article is an exception to the operation of Article 13, clause (2) which prohibits taking away or abridgement of the rights guaranteed by Part III of the Constitution. Hence, a law passed under Article 33 cannot be challenged under Article 13, clause (2).

Note: The power under Article 33 is only exercisable by Parliament and not by State Legislatures.

Article 34

(Restriction of Fundamental Rights while Martial Law is in force in any area)

Article 34 provides that Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

• It offers an indemnity to members of armed forces of those (civil authorities or police) connected with the maintenance or restoration of order within India for all acts done within an area where Martial law was in force. So, an act of indemnity passed by Parliament cannot be challenged on the ground that it violates fundamental rights.
• This power of Parliament is, subject to two restrictions:
  • The act must be done for the maintenance of restoration of order
  • Martial law was in force in the area where the act was done

Martial law:

• Not described in the Indian Constitution. 
• Martial law in simple words is defined as the suspension of ordinary law and the government of the country or part of it by Military Tribunals.
• It is imposed under extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law to repel force by force for maintaining or restoring order in the society.
• Abnormal powers, including imposing restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death. The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

The question is- Under what Article of the Constitution the Executive can declare Martial law, and secondly whether the Presidential Order under Article 359(1) amounts to declaration of Martial law.

Case Law

In A.D.M. Jabalpur vs Shivakant Shukla,1976 case, the SC held that, there is no express provision in the Indian Constitution which confers power on the Executive to declare Martial Law. However, it is implicit in the text of Article 34 of the Constitution under which Martial Law can be declared in any area within the territory of India.