Right To Constitutional Remedies


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One would agree that Indian Constitution contains a very impressive list of Fundamental Rights. But merely writing down a list of rights is not enough. There has to be a way through which they could be realized in practice and defended against any attack on these rights. What can an individual do if one or more of his or her Fundamental Rights are encroached upon by the State?

Articles In The Constitution (32 – 35)

Part III of Indian Constitution provides for legal remedies for the protection of these rights against their violation by the State or other institutions/individuals. Right to constitutional remedies in the constitution is the means through which this is to be achieved.

Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’. It is so because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation. The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights. Also the Indian States are forbidden from making any law that may be in conflict with the Fundamentals Rights.

The Constitution empowers the Supreme Court and High Courts to issue various special orders known as writs.

  • Habeas corpus (Latin term) : A writ of habeas corpus means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.
  • Mandamus (Latin term) : This writ is issued when the court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual. That is it is a command or an order from a superior court to a subordinate court or tribunal or public authority to perform its duty in case it is not doing it.
  • Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.
  • Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder.
  • Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.

These writs go a long way in protecting the rights of the individuals against encroachment by the legislature, the executive or any other authority.

If the Fundamental Rights are the cornerstone of our democracy, then the Right to Constitutional Remedies is the soul of the part III of the Constitutions.

Apart from the judiciary, many other mechanisms have been created in later years for the protection of rights. You may have heard about the National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes, etc.

These institutions protect the rights of women, minorities or Dalits. Besides, the National Human Rights Commission has also been established by law to protect the fundamental and other kinds of rights.

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Bibliography : NIOS – Political Science & NCERT – Indian Constitution At Work

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