An Essay on Right to Constitutional Remedies- A Fundamental Right to Redressal

Every citizen of India is entitled to the Fundamental Rights mentioned in the Constitution of India. Even then, sometimes people face some kind of violation of their fundamental rights, and then the Rights to Constitutional Remedies come to the rescue. This right guarantees the appellant a remedy and gives him the right to petition the Supreme Court for the enforcement of his rights. In this essay, Signification, limitations and implications of the Right to Constitutional Remedies are provided.

At the time of the drafting of the Constitution of India, few rights for common citizens of India were included in it. These rights were made a part of the Indian constitution regardless of age, caste, and gender. There are six fundamental rights guaranteed by the Indian Constitution and placed in Part III, also known as the Magna Carta of the Indian Constitution. They are Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, Right to Constitutional Remedies. At that time, the Right to Property (Article 19, 31) was also included as a fundamental right, but in 1978, it was removed after the 44th Amendment to the Constitution of India.

All these rights are justiciable in nature and preserve the rights of any individual. And if a person believes that his or her rights are being violated at any time, these fundamental rights allow him/her to go to court for enforcement. Among these six fundamental rights, the most important right is the Right to Constitutional Remedies which is the soul of the Indian Constitution.

The Significance of Article 32 of the Right to Constitutional Remedies

A fundamental right is valuable only until its enforcement. But sometimes, even fundamental rights are violated by judiciary functions or for any other reason. Here the role of this particular Fundamental "Right to Constitution Remedies" starts. Right to Constitutional Remedies covers Articles 32, 33, 34, and 35. People who are law experts know very well about the fundamental rights and relevance of Article 32 of the Right to Constitutional Remedies. Article 32 upholds the rights of a person seeking remedies who feels that he is deprived of his Fundamental Rights, to move to the Supreme Court for the enforcement of the rights deliberated in Part III of the Indian Constitution. But the condition is that he can approach the Supreme Court directly only if any of the fundamental rights are denied. The rights guaranteed by Article 32 cannot be suspended except as otherwise stated in the Indian Constitution.

If a person seeks protection under Article 32 and moves to the Supreme Court, the Court has the power to issue an order/direction or writs. Under Article 32, there are five types of writs from which an appropriate writ can be issued for the enforcement of Fundamental Rights. These are:
  1. Habeas Corpus: This writ is issued by the Supreme Court to prevent arbitrary arrest and to direct the release of a person detained illegitimately. The detained person must be produced before the court.
  2. Mandamus (Command): This writ is issued to direct a public authority who is accused of "dereliction of duty."
  3. Quo Warranto ('by what right'): This writ is issued to check the rightfulness of a person's claim to a public office. In cases of usurpation, the courts can direct to vacate the office.
  4. Prohibition:This writ is issued to prohibit an inferior court by the Supreme Court or High Courts from surpassing their jurisdiction in a case.
  5. Certiorari: Under this writ, the Supreme Court or High Courts have the power to quash a proceeding from a lower court in the case of an order acting against "natural justice" or where there is an error of judgement and bring it before itself.

In 1977, Article 32 was amended vide the 42nd Amendment Act (Article 32A) and the 'Anti-Freedom' clauses were introduced in it during an internal emergency. However, Article 32A was repealed by the 43rd Amendment to the Constitution immediately after the emergency was revoked. And after this amendment, the Supreme Court regained power to quash state laws.

Enforcement of the Right to Constitutional Remedies

The purpose of this right is to protect the rights of people when they feel that they are being deprived of their fundamental rights guaranteed by the Indian Constitution. The functioning of this right is based on the Latin maxim or established principle "Ubi Jus Ibi Remedium" which means when there is a 'wrong', there is a 'remedy'. Article 32 of the Right to Constitutional Remedy empowers a person to move directly to the Supreme Court if he feels that any of his fundamental rights are being violated.

Limitations of the Rights to Constitutional Remedies

Every law has some limitations, and Article 32 is no exception to that. Like any other law, some of the limitations are imposed on article 32 of the Indian Constitution. In certain situations, Article 32 does not provide due privileges to citizens when their fundamental rights are ignored or denied. Some circumstances when the right to constitutional remedies is denied include:
  • Parliament is empowered to make changes in the application of Fundamental Rights to the armed forces (Article 33).
  • The fundamental rights of any person may be restricted when martial law is in force in the area. However, a person who is in the service of the state or central government to maintain and restore order in that area may be indemnified by Parliament. (Article 34).
  • When the President of India declares an emergency, citizens' fundamental rights are suspended (Article 352).
  • Fundamental Rights (under Article 19, which states the rights to freedom of opinion and expression) are restricted by the Parliament. The Constitution has empowered Parliament and given the authority to curtail fundamental rights during the pendency of an emergency (Article 358).
  • The President of India has the power to suspend Article 32 of the Constitution under Article 359 if required. When the order is presented to Parliament, it has the authority to reject it.

In the above-mentioned circumstances, Article 32 will not be applicable when seeking a constitutional remedy by an individual who may cause danger to the security of the whole country.

Case laws showing Power of Article 32

Article 32 gives the Supreme Court the power to void any judicial order or law that is non-conforming to the Constitution. What the Supreme Court has under Article 32, the High Court has under Article 226. In the case of Sunil Batra vs. Delhi Administration (1980 AIR 1579, 1980 SCR (2) 557), a prisoner wrote a letter to one of the judges of the Supreme Court alleging inhuman torture of a fellow prisoner in Tihar Jail. The late Justice Krishna Iyer treated this letter as a habeas corpus writ and passed appropriate orders under Article 32. The protection of the prisoner within his rights is part of Article 32.

There is one more good example of the case-law of Arnab Manoranjan Goswami vs The State Of Maharashtra (Criminal Appeal No. 742 of 2020) which shows the power of the judiciary and Article 32 to protect Fundamental Rights. In this case, the appellant, i.e. Arnab Goswami filed a habeas corpus writ in the Bombay High Court alleging that he was illegally detained by the Station House Officer (SHO) at Alibaug Police Station in District Raigad, Maharashtra about an FIR registered on May 5, 2018. The Division Bench of the Bombay High Court stated that the petition for interim bail was based on the ground that the appellant had been unlawfully detained and that because he was in judicial custody, the request for bail would not be entertained and the appellant's interim bail was denied. When the case arrived at the Supreme Court, it was held that human liberty is a valuable constitutional asset and that the High Court had barred itself from exercising its authority under Article 226 to entertain the appellant's bail application because of its inability to carry out its role under Section 482. Therefore, the Supreme Court ordered to quash the FIR and granted the petition under Section 482, overturning the decision of the High Court, and the appellant got bail.

What are the implications?

Though the Right to Constitutional Remedies was included with the view of safeguarding a person's Fundamental Rights if he feels that they are being violated, the possibility of misuse of this right cannot be ruled out either. In fact, there are some case studies wherein the Supreme Court of India dismissed a writ petition to prevent the misuse of Article 32, as in the case of Pratibha Ramesh Patel Vs Union of India and Ors. AIR 2013 SC 1561 (Writ Petition (Civil) No. 35 of 2016). In this case, a writ petition was filed by the petitioner stating that certain provisions of the Security Interest and Recovery Debt Laws Act, 2012 are unconstitutional as these provisions bring multistate cooperative societies under the SARFAESI Act and the measures under Sections 13 and 14 of the SARFAESI Act, 2002 are void-ab-initio (void from initial). The court found that a similar writ petition had already been filed by the petitioner in the Bombay High Court under Article 226 of the Constitution, which was still pending. The Supreme Court ordered not to file the similar writ again in the Supreme Court when it is pending in the High Court. The Supreme Court dismissed that writ petition and asked for compensation of Rs.1,00,000/- to be deposited with the Supreme Court Legal Services Committee within four weeks.

Though there are several case studies wherein Article 32 played its role successfully. But there are a few instances where the Supreme Court has not entertained petitions under Article 32. Recently, Chief Justice of India, SA Bobde, said the SC wants to 'discourage' Article 32 petitions while hearing Kerala journalist Siddique Kappan's habeas corpus writ. He suggested that the request by the "Kerala Union of Working Journalists" should have gone to the concerned high court instead of the Supreme court. However, he said the pendency of petitions has increased tremendously at the Supreme Court. Therefore, judges at the court have regularly proposed to appellants that they ought to approach the relevant High Court, to begin with, and then come to the Apex Court.


The Right to Constitutional Remedies is a powerful weapon that provides Indian citizens with immediate relief. Hence, it is the most important right in the Indian constitution and is also called the very heart of it, as said by Dr. BR Ambedkar. Furthermore, Article 32 of the Rights to Constitutional Remedies guarantees that the rights of an Indian citizen will be safeguarded.

  • Sunil Batra vs Delhi Administration [1980 AIR 1579, 1980 SCR (2) 557]
  • Arnab Manoranjan Goswami vs The State Of Maharashtra [Criminal Appeal No. 742 of 2020]:
  • Pratibha Ramesh Patel Vs. Union of India and Ors. [Writ Petition (Civil) No. 35 of 2016]


Author: K Mohan25 Jan 2022 Member Level: Platinum   Points : 2

It is a known fact the Right to Constitutional remedies gives the teething relief to the citizens and hence is considered a very important right. There has been expressed rights bestowed on every citizen either to approach the high court or the supreme court in case there has been violation of fundamental rights. The courts have been empowered to issue directive orders to respective state or union govt to restore the constitutional rights.

Author: Umesh25 Jan 2022 Member Level: Platinum   Points : 4

The author has very well brought out the significance and importance of the right to constitutional remedies in our country. The article has been enriched much by giving the case examples from the apex court in the past. It is true that in certain situations a citizen has no other go except to appeal under this provision and from that perspective it is one of the most important rights given to the individual to go to the apex court and seek justice and redressal. There are many court cases where such relief was granted by the apex court keeping high the morals of democratic system and setup in our country. The role of the supreme court becomes very crucial in such cases as it has to focus on the injustice done to the individual and individual has no way to tackle and resolve it except under the umbrella of this provision.

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