Article 32 and the Writs

In one line

A fundamental right that could not be enforced would be a promise with nothing behind it, so the Constitution makes the right to go to the Supreme Court and have one enforced itself a fundamental right.

In the wording a student can write in an exam: article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of Part III rights, and because it sits inside Part III that remedial right is itself a fundamental right, so that the Court "is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights", as Romesh Thappar v. State of Madras held while overruling an objection that the petitioner should have gone first to the High Court. Article 32(2) empowers the Court to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Article 32 is available only for a fundamental right, and does not lie against a judicial order of a superior court made within its jurisdiction, as Naresh Shridhar Mirajkar v. State of Maharashtra held.

Why the law has this at all

Part III would work perfectly well as a set of declarations nobody could act on, and many constitutions are exactly that. The makers did two things instead. They put the remedy in the same Part as the rights, so that a refusal of the remedy is itself a breach of a fundamental right. And they gave it to the Supreme Court directly, without requiring the citizen to climb a ladder of appeals.

A guaranteed remedy against the State is also a check on it: if the executive knows that any person it wrongs can reach the highest court in one step, the calculation changes before the wrong is done.

The provision

Article 32 sits in Part III under the heading Right to Constitutional Remedies, and has four clauses.

Clause (1): "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed."

Clause (2): "The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part."

Clause (3): "Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)."