The Right to Constitutional Remedies as the Heart and Soul of the Constitution
Chapter Twenty-Six
Syllabus topic 3, "Jurisdiction"
Pages 79 to 81 of 430
In one line
Ambedkar called Article 32 the heart and soul of the Constitution because a right you cannot enforce is not a right at all.
In the wording a student can write in an exam: the right to constitutional remedies in Article 32 is described as the heart and soul of the Constitution because the fundamental rights in Part III would be declaratory without a guaranteed and enforceable remedy; the remedy is placed in Part III itself, is available directly against the State, and cannot be taken away by ordinary law.
MU's question and how to answer it
The University sets this as a whole question: the statement attributed to Dr B.R. Ambedkar that the right to constitutional remedies is the heart and soul of the Indian Constitution, to be justified in the light of the different types of writs enshrined under the Constitution. So the answer needs three parts: what the statement means, why the framers took that view, and the five writs as the proof of it. The writs are worked in their own chapters and are summarised here.
What Ambedkar actually said, and where
He said it in the Constituent Assembly on 9 December 1948, in the debate on draft Article 25, which became Article 32. His words were that if he were asked to name any particular article in the Constitution as the most important, an article without which the Constitution would be a nullity, he could not refer to any other article except this one; it is the very soul of the Constitution and the very heart of it. The quotation is often given loosely, and it is worth giving it as an assertion about the article's importance rather than as a definition of the remedy.
Why the framers took that view
Because a right without a remedy is a wish. The English maxim is ubi jus ibi remedium, where there is a right there is a remedy. The framers did not leave the maxim to be inferred; they wrote the remedy into the chapter of rights.
Because they distrusted ordinary legislative protection. A remedy created by statute can be taken away by statute. A remedy in Part III cannot be taken away by an ordinary law at all, because Article 13(2) voids any law abridging a Part III right.
Because they had seen the alternative. Before 1950 only three High Courts could issue the writs, and only within the Presidency towns.
Because the Supreme Court was to be the guarantor. Romesh Thappar v. State of Madras, AIR 1950 SC 124, decided in the Court's first year, used exactly that language.
The writs as the proof
| Writ | Literally | What it does | Against whom |
|---|---|---|---|
| Habeas corpus | that you have the body | Tests the legality of a detention and orders release | Any person or authority detaining, public or private |
| Mandamus | we command | Commands the performance of a public duty | A public authority, not a private person on a contract |
| Prohibition | to forbid | Stops a body exceeding its jurisdiction, before it decides | A judicial or quasi-judicial body |
| Certiorari | to be certified | Quashes a decision already made, for want of jurisdiction, breach of natural justice or error on the face of the record | A judicial or quasi-judicial body, and now administrative bodies |
| Quo warranto | by what authority | Calls on the holder of a public office to show his title | The holder of a public office |
The rest of this chapter
Module one is free. The rest of LL.M. Constitutional and Administrative Law Semester 3 is part of the bundle.
You are reading a chapter from a later module. Everything in module one of every subject stays free, and so does every question paper and the syllabus.
See the semester for ₹798 Already bought it? Sign in
Free either way: question papers, the syllabus, and module one of every subject.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.