top of page

Analysis of the Right to Constitutional Remedies

In a democratic society such as ours, it is not merely enough the state to provide the people with certain powers and rights, it is also their duty to provide means to protect those rights and powers. Fundamental Rights are discussed in Part III of the Indian Constitution, yet simply laying down a list of rights is insufficient. There should be a way to put these rights into practice and to defend them against any attack on the fundamental rights given by the Indian constitution to each and every citizen. The Right to Constitutional Remedies enshrined under Article 32 of the Indian Constitution is such a means. The Right to Constitutional Remedies, according to Dr. Ambedkar, is the constitution's "heart and soul." This is because it gives citizens of our country the ability to petition the Supreme Court or the High Court for the enforcement of these rights, and it also prohibits the state from enacting legislation that would contradict or contravene any of these Fundamental Rights. The Right to Constitutional Remedies allows citizens to petition the Supreme Court or the High Court for the restoration of any basic right that has been violated. Following that, the Supreme Court or High Court might issue an order or instruction to the government on how to enforce these rights.

What are Writs

When faced with the problem of local and subordinate authority control in previous centuries, English judges devised the "Prerogative Writs," which were effective in dealing with many of the problems that the welfare state had created. The Supreme Court charters in the Presidency Towns were thus instrumental in bringing them to India. The value of any method of administrative action control is determined by the extent to which it allowed the state's administrative authorities to carry out their duties without jeopardizing citizens' fundamental liberties. Since this method had proved itself to be fruitful in the past, Indian Founding Fathers selected the prerogative writs in preference to other possible methods of judicial control.

The Constitution ensured that anyone who had a basic right infringed on had an adequate procedural recourse in the Supreme Court. The same remedy may be sought in a High Court, which was also given the authority to offer relief in appropriate circumstances where both a basic right and a legal right or interest had been violated.

Writs are written orders issued by the Supreme Court of India to provide constitutional remedies in the event of a violation of any of India's fundamental rights, and the Constitution has given the Supreme Court and the High Court the authority to issue such orders or writs. The fundamental goal of writ petitions is to allow superior courts to rule on the legality of the administration's actions.

Writs Variations

In India, there are five types of writs available to the people, namely, Habeas Corpus, Mandamus, Quo Warranto, Certiorari and Prohibition.

1. Habeas Corpus: This writ's literal translation is “You may have the body”. This writ is in effect to protect a citizen's fundamental right to liberty against wrongful detention if the grounds for arrest are not valid or adequate. It can be used against both government entities and private individuals.

It was established in ADM Jabalpur v. Shivakant Shuklai, widely known as the Habeas Corpus case, that the writ of Habeas Corpus cannot be suspended even during an emergency (Article 359)

2. Mandamus: The literal translation of this writ is “We command”. This writ can be issued if the court determines that the office holder is not performing his or her lawful duties and, as a result, is infringing on an individual's right. This writ can be issued against any public body, corporation, inferior court, tribunal, or government, but not against a private person or entity.

Judges in the case of S.P. Gupta v. Union of Indiaii held that a petition against the President of India for determining the number of judges in High Courts and filling vacancies could not be issued. However, in Advocates on Records Association v. Gujaratiii, the Supreme Court found that the judges' issue is a justiciable issue, and that proper steps, including the issuing of mandamus, might be adopted to address it. However, in C.G. Govindan v. State of Gujarativ, the court refused to issue a writ of mandamus against the governor for failing to endorse the Chief Justice of High Court's determination of court personnel salary under Article 229. As a result, it is argued that the Governor or President refers to the state or the Union, and thus mandamus cannot be issued.

3. Quo Warranto: The literal translation of this writ is “By what warrant”. This writ is issued to investigate the validity of a person's or authority's claim to act in a public office to which they are not eligible. In the sense that the procedures assess the activities of the administrative authority that appointed the person, the writ of Quo Warranto is a form of judicial control.

The writ of Quo Warranto was denied against Ms. Mayawati (CM) and other ministers in her cabinet in the case of Ashok Pandey v. Mayawativ despite the fact that they were Rajya Sabha members. In the matter of Jamalpur Arya Samaj v. Dr. D. Ramvi, the court denied the Writ of Quo Warranto. The writ was dismissed on the grounds that a quo warranto writ cannot be used against a private office. It is also vital for the office to have a substantial nature. The term 'substantive' was construed in the case of R.V. Speyervii to denote an 'office independent of the title.'

4. Certiorari: The translation of this writ is “To be certified”. A writ of certiorari is given to overturn a decision made by a lower court, whereas a prohibition is imposed before the proceedings are completed. A writ of certiorari has always been issued against the acts or processes of a judicial or quasi-judicial body with the capacity to decide questions affecting the rights of subjects and obligated to act judicially. Certiorari also includes affirmative action. It is both preventative and curative in nature. When a clear injustice necessitates positive action, the authority of judicial review is unrestricted.

The Supreme Court held in Naresh S. Mirajkar v. State of Maharashtraviii that the High Court's judicial orders are subject to certiorari and that writ of mandamus is not available against the High Court. The constitution bench held in T.C. Basappa v. T. Nagappa & Anrix. that certiorari may and is often granted where a court acts (i) without jurisdiction or (ii) in excess of its jurisdiction. The Supreme Court clarified the meaning, extent, and ambit of the writ of Certiorari in Surya Dev Rai v. Ram Chander Rai & Ors.x Certiorari is always accessible against lesser courts, but not against equal or higher courts, according to the ruling.

5. Prohibition: Superior courts issue it to a lower or subordinate court to prevent it from doing something that it is not authorized to do under the law. It is generally granted when lesser courts act outside of their legal authority. Its principal goal is to prevent a lower court from exceeding its jurisdiction or behaving in a way that is inconsistent with Natural Justice standards.

A writ of prohibition was issued in the case of East India Commercial Co. Ltd v. Collector of Customsxi, directing an inferior Tribunal not to continue with the proceeding on the grounds that it is without or in excess of jurisdiction, or in contravention of the laws of the land, statutes, or otherwise. The Supreme Court stated in the case of Bengal Immunity Co. Ltdxii that where a subordinate tribunal is proved to have seized jurisdiction that does not belong to it, that factor is irrelevant and a writ of prohibition must be granted as a right.

Analysis of the Right to Constitutional Remedies

Certain conditions exist in which citizens do not receive the benefits that they are entitled to under Article 32. As a result, circumstances may arise in which people' fundamental rights are denied while constitutional remedies are unavailable. Under Article 33, the Parliament has the authority to amend the application of Fundamental Rights to armed forces, and the police have the responsibility to guarantee that their tasks are carried out properly. Any person in service of the state or central government for acts of preservation or restoration of law and order under Article 34 may be indemnified by the Parliament during the operation of martial law in any territory. When an emergency is declared under Article 352 of the Constitution, people' protected Fundamental Rights are suspended. Furthermore, during the period of an emergency, the Parliament, under Article 358, limits the exercise of fundamental rights granted by Article 19. The President has the authority to suspend Article 32 of the Constitution under Article 359. The order must be submitted to Parliament, which has the authority to overturn the President's decision.

Despite its limitations, Article 32 bestows upon the subjects’ extraordinary powers with immediate effect. Furthermore, when PILs are filed, writs are often issued against the state and are summoned against the state. The Constitution's Writ Jurisdictions, on the other hand, contain privilege restrictions and are discretionary in nature, but they are unbounded in their breaking points. In any case, the caution is exercised in accordance with legal guidelines.


As a result, the Judiciary has enormous power to oversee management conduct when it infringes on fundamental rights of the subjects or goes against the heart of our nation's founding document, the Indian Constitution. It ensures the Rule of Law, as well as proper checks and balances between the three organs of our vote-based system. The logic of writs is closely aligned with our Constitutional procedures to ensure that citizens' rights are not suffocated by self-aggrandizing authoritative or judicial activity.

i (1976)2 SCC 521

ii AIR 1982 SC 149

iii (1993) 4 SCC 441

iv (1998)7 SCC 625

v AIR 2007 SC 2259

vi AIR 1954 Pat 297

vii (1916) 1 K.B. 595.

viii AIR 1967 SC 1

ix 1954 AIR 240

x (2003) 6 SCC 675

xi 1962 AIR 1893

xii AIR 1955 SC 661

This article is written by Aadiya Sinha of Rajiv Gandhi National University of Law.

Recent Posts

See All


Introduction The Constitution of India is a legal document that establishes a federal system of government for the nation as well as lays out specific duties for the federal and state governments. The


Introduction A person is liable for his own wrongful acts and does not incur any liability for the wrongful acts done by others . But, sometimes liability arises vicariously for the torts committed by


Post: Blog2 Post
Anchor 1
bottom of page