Introduction

The fundamental right “right to constitutional remedies “ safeguards all other fundamental
rights . It gives a person the right to approach High Court or Supreme Court in case of
violation of their fundamental rights .The Supreme and High Courts can give directives to the
government for the enforcement of their rights . In this sense it is the most important
fundamental right . Dr. B.R Ambedkar called it “ The heart and soul of the Constitution” . It
is covered in Article 32 and 226 of the Constitution .

1. Fundamental rights in India

Fundamental Rights are the basic rights of the common people and inalienable rights of the
people who enjoy it under the charter of rights contained in Part III(Article 12 to 35) of
Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in
peace and harmony as citizens of India. These include individual rights common to most
liberal democracies, such as equality before law, freedom of speech and expression, religious
and cultural freedom and peaceful assembly, freedom to practice religion, and the right to
constitutional remedies for the protection of civil rights by means of writs such as habeas
corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. Violation of these rights result
in punishments as prescribed in the Indian Penal Code or other special laws, subject to
discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms that
every Indian citizen has the right to enjoy for a proper and harmonious development of
personality. These rights universally apply to all citizens, irrespective of race, place of birth,
religion, caste or gender. Though the rights conferred by the constitution other than
fundamental rights are equally valid and their enforcement in case of violation shall be
secured from the judiciary in a time consuming legal process. However, in case of
fundamental rights violation, the Supreme Court of India can be approached directly for
ultimate justice per Article 32. The Rights have their origins in many sources, including
England's Bill of Rights, the United States Bill of Rights and France's Declaration of the
Rights of Man.

The six fundamental rights recognized by the Indian constitution are the right to equality,
right to freedom, right against exploitation, right to freedom of religion, cultural and

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educational rights, right to constitutional remedies. The right to equality includes equality
before law, prohibition of discrimination on grounds of religion, race, caste, gender or place
of birth, and equality of opportunity in matters of employment, abolition of untouchability
and abolition of titles. The right to freedom includes freedom of speech and expression,
assembly, association or union or cooperatives, movement, residence, and right to practice
any profession or occupation, right to life and liberty, protection in respect to conviction in
offences and protection against arrest and detention in certain cases. The right against
exploitation prohibits all forms of forced labour, child labour and trafficking of human
beings. The right to freedom of religion includes freedom of conscience and free profession,
practice, and propagation of religion, freedom to manage religious affairs, freedom from
certain taxes and freedom from religious instructions in certain educational institutes.
Cultural and educational rights preserve the right of any section of citizens to conserve their
culture, language or script, and right of minorities to establish and administer educational
institutions of their choice. The right to constitutional remedies is present for enforcement of
Fundamental Rights. The right to privacy is an intrinsic part of Article 21(Right to Freedom)
that protects life and liberty of the citizens.

Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-
independence social practices. Specifically, they have also been used to abolish
untouchability and thus prohibit discrimination on the grounds of religion, race, caste, sex, or
place of birth. They also forbid trafficking of human beings and forced labour (a crime). They
also protect cultural and educational rights of religious and linguistic minorities by allowing
them to preserve their languages and also establish and administer their own education
institutions. They are covered in Part III (Articles 12 to 35) of Indian constitution. Some
Features of indian constitution –

1.It provides safeguard if any political leader misuses his power.

2.it also provides safeguard against discrimination.

3.it says "all persons are equal before law."

4.It provides fundamental rights.

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2. Right to constitutional remedies

Right to constitutional remedies [Article 32 to 35] empowers the citizens to move to a court
of law in case of any denial of the fundamental rights. For instance, in case of imprisonment,
any citizen can ask the court to see if it is according to the provisions of the law of the
country by lodging a PIL. If the court finds that it is not, the person will have to be freed.
This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights
can be done in various ways. The courts can issue various kinds of writs protecting rights of
the citizens. These writs are:

 habeas corpus
 mandamus
 Prohibition
 quo warranto
 certiorari

This allows citizen to move to court if they believe that any of their Fundamental Rights have
been violated by state. Article 32 is also called citizens right to protect and defend the
constitution as it can be used by the citizens to enforce the constitution through the judiciary.
Dr. B. R. Ambedkar rightly declared Right to constitutional remedies as "the heart and soul"
of Indian constitution. When a national or state emergency is declared, this right is suspended
by the central government.

2.1Habeas corpus

Habeas corpus (Medieval Latin meaning literally "that you have the body")1 is a recourse in
law through which a person can report an unlawful detention or imprisonment to a court and
request that the court order the custodian of the person, usually a prison official, to bring the
prisoner to court, to determine whether the detention is lawful.2

1
Merriam-Webster. Retrieved 22 April 2015.
2
Larson, Aaron (24 July 2016). "What is Habeas Corpus". Expert Law. Retrieved 1 May 2017.

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The writ of habeas corpus is known as "the great and efficacious writ in all manner of illegal
confinement”. It is a summons with the force of a court order; it is addressed to the custodian
(a prison official, for example) and demands that a prisoner be taken before the court, and
that the custodian present proof of authority, allowing the court to determine whether the
custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or
her authority, then the prisoner must be released. Any prisoner, or another person acting on
his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason
for the writ to be sought by a person other than the prisoner is that the detainee might be held
incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully
detained, but this is not always called habeas corpus. For example, in some Spanish-speaking
nations, the equivalent remedy for unlawful imprisonment is the amparo de liberated
("protection of freedom").

Habeas corpus has certain limitations. Though a writ of right, it is not a writ of course It is
technically only a procedural remedy; it is a guarantee against any detention that is forbidden
by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial.
So if an imposition such as internment without trial is permitted by the law, then habeas
corpus may not be a useful remedy. In some countries, the writ has been temporarily or
permanently suspended under the pretext of war or state of emergency.[further explanation
needed]

The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the
most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that
the British Habeas Corpus Acts "declare no principle and define no rights, but they are for
practical purposes worth a hundred constitutional articles guaranteeing individual liberty".

The Indian judiciary, in a catena of cases, has effectively resorted to the writ of habeas corpus
to secure release of a person from illegal detention3. For example, in October 2009, the
Karnataka High Court heard a habeas corpus petition filed by the parents of a girl who
married a Muslim boy from Kannur district and was allegedly confined in a madrasa in
Malapuram town4. Usually, in most other jurisdictions, the writ is directed at police
authorities. The extension to non-state authorities has its grounds in two cases: the 1898

3
Baxi, Pratiksha (April 2009 - Reprint 2012). "Habeas Corpus Juridical Narratives of Sexual Governance"
4
'Love Jihad': court unhappy with probe". The Hindu. 27 Oct 2009

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Queen's Bench case of Ex Parte Daisy Hopkins, wherein the Proctor of Cambridge University
did detain and arrest Hopkins without his jurisdiction, and Hopkins was released, and that of
Somerset v Stewart, in which an African slave whose master had moved to London was freed
by action of the writ.

The Indian judiciary has dispensed with the traditional doctrine of locus standi, so that if a
detained person is not in a position to file a petition, it can be moved on his behalf by any
other person. The scope of habeas relief has expanded in recent times by actions of the Indian
judiciary.

In 1976, the habeas writ was used in the Rajan case, a student victim of torture in local police
custody during the nationwide Emergency in India. On 12 March 2014, Subrata Roy's
counsel approached the Chief Justice moving a habeas corpus petition. It was also filed by the
Panthers Party to protest the imprisonment of Anna Hazare, a social activist.

2.2 Mandamus

Mandamus (Latin "we command") is a judicial remedy in the form of an order from a
superior court5 to any government, subordinate court, corporation, or public authority, to do
(or forbear from doing) some specific act which that body is obliged under law to do (or
refrain from doing), and which is in the nature of public duty, and in certain cases one of a
statutory duty. It cannot be issued to compel an authority to do something against statutory
provision. For example, it cannot be used to force a lower court to reject or authorize
applications that have been made, but if the court refuses to rule one way or the other then a
mandamus can be used to order the court to rule on the applications.

Mandamus may be a command to do an administrative action or not to take a particular

action, and it is supplemented by legal rights. In the American legal system it must be a
judicially enforceable and legally protected right before one suffering a grievance can ask for
a mandamus. A person can be said to be aggrieved only when he or she is denied a legal right
by someone who has a legal duty to do something and abstains from doing it.

5
Writ of Mandamus Archived 2015-08-19 at the Wayback Machine., and Indian Constitution

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2.2.1 Purpose

The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a
specific right but no specific legal remedy for enforcing that right. Generally, it is not
available in anticipation of any injury except when the petitioner is likely to be affected by an
official act in contravention of a statutory duty or where an illegal or unconstitutional order is
made. The grant of mandamus is therefore an equitable remedy; a matter for the discretion of
the court, the exercise of which is governed by well-settled principles.6

Mandamus, being a discretionary remedy, the application for that must be made in good faith
and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus.
The petitioner must, of course, satisfy the Court that he or she has the legal right to the
performance of the legal duty as distinct from mere discretion of authority7. A mandamus is
normally issued when an officer or an authority by compulsion of statute is required to
perform a duty and that duty, despite demand in writing, has not been performed. In no other
case will a writ of mandamus issue unless it be to quash an illegal order.

2.2.2 Types

There are three kinds of mandamus:

 Alternative mandamus: A mandamus issued upon the first application for relief,
commanding the defendant either to perform the act demanded or to appear before the
court at a specified time to show cause for not performing it.
 Peremptory mandamus: An absolute and unqualified command to the defendant to do the
act in question. It is issued when the defendant defaults on, or fails to show sufficient
cause in answer to, an alternative mandamus.
 Continuing mandamus: A mandamus issued to a lower authority in general public
interest asking the officer or the authority to perform its tasks expeditiously for an
unstipulated period of time for preventing miscarriage of justice.8

6
Gangadhar Narsingdas Agrawal v. Union of India, AIR 1967 Goa 142 (147); Regional Director v. AS
Bhangoo, (1969) 73 Cal. WN 267; Megh Nath v. Director, Technical Education, UT Chandigarh, 1990 (1) RSJ
126.
7
Basantilal v. Laxminarayan, 1970 MPLJ (Note) 6.
8
Vineet Narain v. Union of India, AIR 1996 SC 3386

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In India, the sine qua non for mandamus is the existence of a statutory public duty incumbent
upon the person or body against whom the mandamus is sought. There must equally co-exist
a corresponding right in the petitioner entitling him to claim the enforcement of such public
duty. These two preconditions form the foundation for the issue of mandamus. The primary
scope and function of mandamus is to "command" and "execute" rather than to "enquire" and
"adjudicate". It cannot be issued to change the decision of a body so as to suit the petitioner.
Obligations which are not of statutory nature cannot be enforced by mandamus.[11]The writ
petition is not maintainable when a remedy provided for under the Code of Civil Procedure is
available. For example, the High Court cannot entertain writ petitions for mandamus to the
Government who fails to deposit and pay in the requisite time an enhanced compensation
account as ordered by a lower Court. The petitioners in this case would be directed to
approach the executing Court for appropriate relief.[12]

Only the Supreme Court and High Courts are empowered to exercise Writ Jurisdiction, under
Art. 32 and 226 of Constitution. No other courts are empowered to issue writ. mandamus:- It
means court can ask common people, authorities to do or no to do some task. It does not
come against president, governor, parliament, state legislature, private bodies, and individual
persons.

2.3 Prohibition

Prohibition is the act or practice of forbidding something by law; more particularly the term
refers to the banning of the manufacture, storage (whether in barrels or in bottles),
transportation, sale, possession, and consumption of alcoholic beverages. The word is also
used to refer to a period of time during which such bans are enforced.

In India alcohol is a state subject and individual states can legislate prohibition, but currently
most states do not have prohibition and sale/consumption is freely available in 25 out of 29
states. Prohibition is in force in the states of Gujarat, Bihar and Nagaland, parts of Manipur,
and the union territory of Lakshadweep. All other States and union territories of India permit
the sale of alcohol.9Election days and certain national holidays such as Independence Day are
meant to be dry days when liquor sale is not permitted but consumption is allowed. Some

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Main article: Alcohol prohibition in India

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Indian states observe dry days on major religious festivals/occasions depending on the
popularity of the festival in that region.

2.4 Certiorari

Certiorari,often abbreviated cert. in the United States, is a process for seeking judicial review
and a writ issued by a court that agrees to review. A certiorari is issued by a superior court,
directing an inferior court, tribunal, or other public authority to send the record of a
proceeding for review.

2.5 Quo warranto

In British and American common law, quo warranto (Medieval Latin for "by what warrant?")
is a prerogative writ requiring the person to whom it is directed to show what authority they
have for exercising some right, power, or franchise they claim to hold.

3 Critical analyses

There is also the provision of preventive detention and suspension of fundamental rights in
times of Emergency. The provisions of acts like the Maintenance of Internal Security Act
(MISA), Armed Forces (Special Powers) Act and the National Security Act (NSA) are a
means of countering the fundamental rights, because they sanction excessive powers with the
aim of fighting internal and cross-border terrorism and political violence, without safeguards
for civil rights10. The phrases "security of State", "public order" and "morality" are of wide
implication. People of alternate sexuality are criminalised in India with prison term up to 10
years. The meaning of phrases like "reasonable restrictions" and "the interest of public order"
have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary
litigation. The freedom to assemble peaceably and without arms is exercised, but in some
cases, these meetings are broken up by the police through the use of non-fatal methods.

"Freedom of press" has not been included in the right to freedom, which is necessary for
formulating public opinion and to make freedom of expression more legitimate. Employment
of child labour in hazardous job environments has been reduced, but their employment even
in non-hazardous jobs, including their prevalent employment as domestic help violates the

10
Senior Inspector justifies lathi-charge during the 2006 Indian anti-reservation protests

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spirit and ideals of the constitution. More than 16.5 million children are employed and
working in India.[30] India was ranked 88 out of 159 in 2005, according to the degree to
which corruption is perceived to exist among public officials and politicians worldwide. But
in 2014, India has improved marginally to a rank of 85. The right to equality in matters
regarding public employment shall not be conferred to overseas citizens of India, according
to the Citizenship (Amendment) Bill, 2003.

As per Article 19 of Part III of the Indian constitution, the fundamental rights of people such
as freedom of speech and expression, gathering peaceably without arms and forming
associations or unions shall not affect the interests of the sovereignty and integrity of India
but not unity of India. The words sovereignty and integrity are the qualities to be cultivated /
emulated by Indian people as urged by the Indian constitution but not used related to territory
of India. Article 1 of Part 1 of the Indian constitution, defines India (Bharat) as union of
states. In nutshell, India is its people not its land as enshrined in its constitution.

Since speedy trial is not the constitutional right of the citizens, the cases involving violations
of fundamental rights take inordinate time for resolution by the Supreme Court which is
against the legal maxim 'justice delayed is justice denied'.

4.Amendments

Changes to the fundamental rights require a constitutional amendment, which has to be

passed by a special majority of both houses of Parliament. This means that an amendment
requires the approval of two-thirds of the members present and voting. However, the number
of members voting in support of the amendment shall not be less than the absolute majority
of the total members of a house – whether the Lok Sabha or Rajya Sabha.

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 CONCLUSION

Protection of human rights has got a wide recognition in the present day world of human
rights revolution. Human rights jurisprudence gets power only . if the concept of social
justice is promoted according to the socio economic development of the state .The change in
the administration of a state from Laissez faire to welfare system, and inclusion of the
declaration of rights in the constitutions of most of the countries after the Second World War.
increased the responsibility of the states in protecting the human rights of the people. But
when it comes to enforcing these rights against the state for its violations the principle and
procedure seems to be inadequate. Ever since human rights had been recognized by the
organized communities as moral principle this was known in the name of natural righte2.
Later these rights were protected by civil law and criminal law. the problem of protecting the
human right increased after evolution of state because of the possibility of the state itself
violating the guaranteed rights of the citizens. Due to world wars, UN Charter reaffirmed the
importance of human rights and prepared UDHR. The desire of the state parties to protect
human rights of the people the U.N. Commission prepared two conventions one is
EconomicSocial and Cultural Rights and the other is Civil and Political rights Thus an
attempt was made at the international level to protect the human rights of the people.

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 Bibliography

Book references

Pandey J.N.,Constitutional Law of India,Central law Agency,Fifty Fifth Edition 2018

OTHER REFERENCE

https://indiankanoon.org/doc/1016548/

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