Constitutional Remedies and Writs
NCERT Class 9 - Democratic Politics I, Chapter 5 • NCERT Class 11 - Indian Constitution at Work, Chapter 6
Constitutional Remedies and Writs
A right without a remedy is meaningless. Article 32 gives every person the right to move the Supreme Court directly for enforcement of Fundamental Rights. Ambedkar called it the heart and soul of the Constitution.
Article 32 and Article 226
- Article 32 is itself a Fundamental Right, so the right to a remedy cannot be taken away by ordinary law.
- The Supreme Court can issue directions, orders or writs for the enforcement of Fundamental Rights.
- Article 226 gives every High Court the power to issue writs, and its scope is wider - a High Court can issue writs for Fundamental Rights and for any other legal right.
- Article 32 can be suspended during a National Emergency under Article 359, but the rights under Articles 20 and 21 cannot be suspended after the 44th Amendment of 1978.
The five writs
| Writ | Literal meaning | Purpose |
|---|---|---|
| Habeas Corpus | To have the body | Release of a person unlawfully detained |
| Mandamus | We command | To direct a public official or body to do its legal duty |
| Prohibition | To forbid | Issued by a higher court to stop a lower court exceeding its jurisdiction |
| Certiorari | To be certified | Higher court transfers a case to itself or quashes a lower court's order |
| Quo Warranto | By what authority | To question a person's right to hold a public office |
- Habeas corpus can be issued against both public authorities and private persons, and is the classic protection of personal liberty.
- Mandamus cannot be issued against a private individual, the President or a Governor, or to enforce a purely discretionary duty.
- Prohibition is preventive and issued while a case is pending; certiorari is corrective and issued after an order is passed.
- Quo warranto can be sought by any interested person, not only by the aggrieved party, and applies only to a substantive public office.
Judicial review and public interest litigation
- Article 13 declares that any law inconsistent with Fundamental Rights is void to the extent of the inconsistency. This is the textual basis of judicial review.
- Judicial review covers laws made by Parliament and state legislatures, executive orders, and constitutional amendments tested against the basic structure.
- Public interest litigation allows any public-spirited person to approach the court on behalf of those unable to do so themselves, relaxing the traditional rule of locus standi.
- PIL has been used for prison reform, bonded labour, environmental protection and the right to food, and even a letter or a newspaper report has been treated as a petition.
- The criticism of PIL is that it can lead to judicial overreach into matters properly belonging to the executive and the legislature.
हिंदी संकेत: निषेध (prohibition) मुकदमा चलते समय जारी होती है और उत्प्रेषण (certiorari) आदेश हो जाने के बाद। एक रोकती है, दूसरी सुधारती है - यही अंतर पूछा जाता है।
Exam me kaise aata hai
Match-the-following on writ and purpose is almost certain. Factual questions ask which article is called the heart and soul of the Constitution, and which writ questions a person's right to hold office. Statement-based questions compare Article 32 with Article 226.
UPSC / State PSC ke liye
Note the precise comparison between the two articles - Article 32 is a Fundamental Right and is limited to Fundamental Rights; Article 226 is a constitutional right of wider scope but not itself a Fundamental Right. On PIL, present both sides: it has widened access to justice, but raises real questions about the separation of powers.
Yahan confuse hote hain
✗ Mandamus is issued to release a detained person | ✓ That is habeas corpus; mandamus directs an official to do a legal duty
✗ Article 226 is narrower than Article 32 | ✓ Article 226 is wider, covering legal rights as well as Fundamental Rights
✗ Articles 20 and 21 can be suspended during an emergency | ✓ They cannot be suspended after the 44th Amendment of 1978
Ek nazar me
- Article 32 gives the right to move the Supreme Court directly for Fundamental Rights.
- Ambedkar called Article 32 the heart and soul of the Constitution.
- Article 226 gives High Courts wider writ powers, covering other legal rights too.
- Five writs - habeas corpus, mandamus, prohibition, certiorari and quo warranto.
- Article 13 makes laws inconsistent with Fundamental Rights void, the basis of judicial review.
- Public interest litigation relaxes locus standi and widened access to the courts.