Enforcing Fundamental Rights through Constitutional Remedies

Fundamental rights look impressive on paper. But what happens when a government authority ignores them? What stops the State from detaining someone arbitrarily, or a public official from refusing to perform a legal duty? The answer lies in Article 32 of the Indian Constitution – the provision that transforms fundamental rights from mere declarations into enforceable guarantees. Dr. B.R. Ambedkar, the principal architect of the Constitution, called it the “heart and soul” of the entire document. Without it, every other fundamental right would be little more than a promise.

What is Article 32? 🔗

Article 32 falls under Part III of the Indian Constitution, which deals with Fundamental Rights. What makes it unique is that it is itself a fundamental right – the right to constitutional remedies. It guarantees every citizen the ability to approach the Supreme Court directly whenever any of their fundamental rights have been violated. You don’t need to start from a lower court and work your way up through appeals. You can go straight to the apex court.

The Article contains four key provisions. First, it guarantees the right to move the Supreme Court for enforcement of fundamental rights. Second, it empowers the Supreme Court to issue directions, orders, or writs of five specific types. Third, Parliament may authorise any other court (not including High Courts, which already have this power under Article 226) to exercise similar jurisdiction. Fourth – and critically – the right guaranteed under Article 32 cannot be suspended except as otherwise provided by the Constitution itself.

The Supreme Court’s jurisdiction under Article 32 is original (you approach it directly, not through appeal), wide (not limited to specific kinds of orders), and not exclusive (High Courts have concurrent powers under Article 226). As a result, Article 32 makes the Supreme Court the primary defender and guarantor of fundamental rights in India.

The five types of writs under Article 32 🔗

Under Article 32(2), the Supreme Court is empowered to issue five specific types of writs. Each writ is a formal court order designed to address a particular kind of rights violation. These writs were originally borrowed from English law, where they were called “prerogative writs” – issued in the exercise of the King’s authority. India adapted them into a constitutional framework that serves citizens rather than the Crown.

Habeas corpus 🔗

The Latin phrase means “you shall have the body.” This writ is issued to a person or authority who has detained another individual, directing them to produce the detained person before the court. The court then examines whether the detention is lawful. If not, the person is released. What makes habeas corpus particularly powerful is that it can be issued against both public authorities and private individuals – a feature not shared by most other writs. It is the primary safeguard against arbitrary detention and is often described as the “first security of civil liberty.”

Mandamus 🔗

“We command” – that is the literal meaning of mandamus. This writ is issued by the Supreme Court or High Court to a public official, government body, corporation, lower court, or tribunal directing them to perform a legal duty they have refused or failed to perform. It is not available against private individuals and cannot be used to compel the exercise of discretionary powers – only statutory or mandatory duties. It is the go-to remedy when bureaucratic inaction violates someone’s rights.

Prohibition 🔗

This writ is issued by a higher court to a lower court or tribunal directing it to stop proceedings that are outside its jurisdiction. In other words, it prohibits the lower court from exceeding its authority. It can only be issued while proceedings are ongoing – once a judgment has been passed, prohibition cannot be used to stop it. As held in Prudential Capital Markets Ltd. v. State of A.P., after an order has been executed, the writ of prohibition is unavailable.

Certiorari 🔗

Where prohibition prevents a lower court from proceeding further, certiorari goes a step beyond – it quashes an order already passed by a lower court, tribunal, or authority that has acted without jurisdiction or made a legal error. The Supreme Court or High Court issues this writ to “call up” the record of proceedings from a lower authority and examine its legality. Importantly, certiorari is always directed at inferior courts or tribunals – a High Court cannot issue it against another High Court, and the Supreme Court cannot issue it against itself.

Quo warranto 🔗

The phrase means “by what authority.” This writ is issued to inquire into the legality of a person’s claim to a public office. If someone is holding a public position without the legal authority to do so, quo warranto can be used to challenge that occupancy. Unlike the other writs, any member of the public may file a petition for quo warranto – the petitioner does not need to show a personal violation of their own rights. It is a tool of public accountability.

Article 32 vs Article 226: key differences 🔗

A common source of confusion is the relationship between Article 32 and Article 226. Both empower courts to issue writs, but there are important distinctions. Article 32 is a fundamental right in itself – the Supreme Court is obligated to entertain a petition under it; it cannot refuse. Article 226 gives High Courts discretionary writ jurisdiction, meaning a High Court may decline to entertain a petition if, for example, the petitioner has an adequate alternative remedy available.

Further, Article 32 can only be used to enforce fundamental rights. Article 226 has a wider scope – High Courts can issue writs not just for fundamental rights enforcement but for any other legal right. This makes High Courts, in some ways, more accessible forums for a broader range of grievances. Both articles together form what the Supreme Court, in L. Chandra Kumar v. Union of India (1997), called the “twin pillars” of the Constitution’s basic structure.

Article 32 and the basic structure doctrine 🔗

One of the most significant aspects of Article 32 is its constitutional inviolability. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Article 32 forms part of the basic structure of the Constitution. This means Parliament cannot amend or abrogate it under Article 368. The right to constitutional remedies is so foundational that it places itself beyond the reach of even the legislature. Reaffirmed in Skill Lotto Solutions Pvt. Ltd. v. Union of India (2020), this position now stands settled: Article 32 is an integral, unamendable feature of the Indian constitutional order.

Can Article 32 be suspended? 🔗

Article 32(4) states that the right it guarantees “shall not be suspended except as otherwise provided for by this Constitution.” That exception is found in Article 359, which allows the President to suspend the right to approach courts for enforcement of specific fundamental rights during a National Emergency. This is distinct from Article 358, which automatically suspends Article 19 freedoms during an external emergency.

This tension between emergency powers and fundamental rights was tested dramatically during the 1975-77 Emergency declared by Prime Minister Indira Gandhi. The government suspended citizens’ ability to enforce fundamental rights including Article 21 (right to life and personal liberty). In the infamous case of ADM Jabalpur v. Shivkant Shukla (1976) – the Habeas Corpus case – the Supreme Court ruled by a 4:1 majority that even illegal detention could not be challenged in courts during the Emergency. The lone dissenter, Justice H.R. Khanna, held that the right to life is an inalienable natural right that no presidential order can extinguish.

Justice Khanna paid a professional price for his dissent – he was passed over for the position of Chief Justice – but history vindicated him entirely. The 44th Constitutional Amendment (1978), passed after the Emergency ended, ensured that Articles 20 and 21 can never be suspended, even during a National Emergency. And in Justice K.S. Puttaswamy v. Union of India (2017), a nine-judge bench expressly overruled the ADM Jabalpur majority judgment, holding that life and personal liberty are inherent to human existence and cannot be at the mercy of the State.

Practical limitations on filing under Article 32 🔗

While Article 32 is a powerful remedy, it is not unconditional. The Supreme Court has established several grounds on which a petition may be refused or dismissed. If the petitioner has an adequate alternative remedy available – for instance, approaching a High Court first – the Supreme Court may direct them to exhaust that remedy before invoking Article 32. If there has been an inordinate and unexplained delay in filing the petition, the court may refuse relief. A malicious or fraudulent petition, or one where the petitioner has suppressed material facts, can be dismissed at any stage. The principle of res judicata also applies – a writ petition on the same facts and between the same parties generally cannot be re-filed, with habeas corpus being a limited exception to this rule.

Why Article 32 matters beyond individual cases 🔗

Article 32 has been the vehicle for some of India’s most consequential legal interventions. Environmental protection, prisoner rights, bonded labour, child labour, and custodial deaths have all been addressed through petitions filed under this article. The evolution of Public Interest Litigation (PIL) – where any public-spirited person can approach the Supreme Court on behalf of those unable to do so themselves – expanded Article 32’s reach dramatically from the 1980s onward. Courts began issuing writs not just to release detained individuals but to reshape government policy and institutional practices.

As members of the Constituent Assembly noted during debates on the draft article, it was described as the “crowning section” and the “very soul and very heart of the Constitution.” That characterisation has proved durable. A fundamental right that cannot be enforced is not really a right – it is a wish. Article 32 is what converts the wish into a legally enforceable claim, with the highest court in the land empowered to back it up.

What do you think? If Article 32 is itself a fundamental right, does that mean the right to seek justice is as important as the substantive rights it protects – or more so? And given the ADM Jabalpur episode, do you think the current constitutional safeguards go far enough to prevent a future government from using emergency provisions to silence judicial oversight?

References

1. https://www.constitutionofindia.net/articles/article-32-remedies-for-enforcement-of-rights-conferred-by-this-part/
2. https://indiankanoon.org/doc/981147/
3. https://www.lawctopus.com/clatalogue/clat-pg/adm-jabalpur-v-shivkant-shukla/
4. https://www.nextias.com/blog/right-to-constitutional-remedies/
5. https://padhai.ai/blogs-padhai/writs-article-32-of-the-indian-constitution-upsc
6. https://en.wikipedia.org/wiki/ADM_Jabalpur_v._Shivkant_Shukla