“A declaration of Fundamental Rights is meaningless unless there is an effective judicial remedy for their enforcement.” Comment. What are the Judicial remedies which the Constitution provides? Explain.

Question: [“A declaration of Fundamental Rights is meaningless unless there is an effective judicial remedy for their enforcement.” Comment. What are the Judicial remedies which the Constitution provides? Explain. [UPJS 2003, UPJS 2016, MPJS 2018]

Find the answer to the mains question only on Legal Bites. [“A declaration of Fundamental Rights is meaningless unless there is an effective judicial remedy for their enforcement.” Comment. What are the Judicial remedies which the Constitution provides? Explain. [UPJS 2003, UPJS 2016, MPJS 2018]

Answer

A right without a remedy is a meaningless formality. It is the remedy that makes a right real. In this regard, Dr. B.R. Amedkar referred to the Particular Article 32 of the Indian Constitution, without which the Constitution would be a nullity. According to him, Article 32 is the very heart and soul of the Constitution as an individual, be it, a citizen or a non-citizen of India had an effective judicial remedy for the enforcement of their fundamental rights.

Clause 1 of this provision guarantees the right to move to the Supreme Court, by appropriate proceedings, for the enforcement of the fundamental rights; and for this purpose, the court has been empowered under clause 2 to issue appropriate directions, orders, or writs including the writ of habeas corpus, mandamus, prohibition, quo-warranto, and certiorari. This right to constitutional remedies under Article 32 cannot be suspended except otherwise provided for by the Constitution itself. Further clauses provide:

The provision provides an expeditious and inexpensive remedy for the protection of fundamental rights from legislative and executive interference. The provision envisages the role of a “sentinel on the qui vibe” for the Supreme Court. In Minerva Mills v UOI, 1980 SC 1789, the court has characterized the power of Judicial review conferred by Articles 32 and 226 as the basic structure of the Constitution. The judicial review power thus cannot be abrogated without affecting the basic structure which is the basis of the Indian Constitution.

Similar to the provision of Article 32, the same power has been conferred to the High Court of states for the effective judicial remedy in cases where there is a violation of fundamental rights or any other constitutional rights of an individual. A question has been raised whether a petitioner seeking to enforce his Fundamental Rights can go straight to the Supreme Court under Article 32, or should he first go to a High Court under Article 226.

As early as 1950, in Romesh Thappar v. State of Madras, (1950) SCR 594, the Supreme Court ruled that such a petitioner can come straight to the Supreme Court without going to the High Court first. The Court stated that,

“Unlike Article 226, Article 32 confers a Fundamental Right on the individual and imposes an obligation on the Supreme Court which it must discharge when a person complains of infringement of a Fundamental Right. Art. 32 provide a guaranteed remedy for the enforcement of the Fundamental Rights and constitute the Supreme Court as the “guarantor and protector of Fundamental Rights.”

The Judicial remedies which are available under the Article 32 and 226 of the Constitution for the enforcement of fundamental rights are:

1.Habeus Corpus

The literal meaning of the Latin words ‘Habeas Corpus’ is to ‘have the body. This writ is basically meant for a remedy against the illegal confinement of a person. It is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for imprisonment. The only precondition necessary is that the person should have been confined and such confinement should be illegal.

2.Mandamus

Mandamus is a Latin word having the meaning “We command”. The primary purpose of this writ is to make the Government, machinery work properly. An order of mandamus is a command directed to any person, corporation or an inferior tribunal, requiring them to do some particular thing which pertains to their/his office and which is in the nature of public duty.

3.Prohibition

The object of this writ is to restrain the Courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine the Courts or Tribunals of inferior or limited jurisdiction within their bounds.

The writ of prohibition lies not only for the excess of jurisdiction or for the absence of jurisdiction object is to confine the Courts or Tribunals of inferior or limited jurisdiction within their bounds.

4.Certiorari

Certiorari means “to certify”. A writ of certiorari (cert.) is an order of an appeal or appellate court ‘directing a lower court to deliver the record in the case for review. In other words, it is a writ which is issued by the High Court to subordinate judicial or quasi-judicial bodies directing them to transfer the records of a particular case in order to ascertain whether the court has the jurisdiction to give the order or whether it is against the principles of natural justice. A writ of certiorari is corrective in nature.

5.Quo-warranto

This writ is issued by a superior court inquiring by what authority a person claims to exercise a particular right, or to hold a particular office. It is a device to control executive action in the matter of making appointments to public offices. In this process the usurper of public office may be removed and the rightful person may be allowed to occupy this office.

6.Public Interest Litigation

Public interest litigation means litigation filed in the court of law with the view to protect the interest of the general public. The high court can hear matters of PIL filed under Article 226. Through PIL persons who were not directly affected in the case may bring to the notice of the court matters of public interest. It is the power granted to the public by the courts.

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Important Mains Questions Series for Judiciary, APO & University Exams

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2. Constitutional Law Mains Questions Series Part-I
3. Constitutional Law Mains Questions Series Part-II
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