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DAILY
CLASS NOTES
INDIAN POLITY

Lecture – 23
Article 31 || Article 32
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Article 31 || Article 32
Article 31:
❖ Article 19(1)(f) says that every person has got the right to acquire or right to dispose of his property.
❖ Article 31 says that every person has got the right to property that can be taken over by only the relevant
authority.
❖ Article 31 and Article 19(1)(f), both were originally fundamental rights.
❖ The 44th Amendment Act 1978 made the right to property an ordinary right under Article 300A. Now
every person has got the right to hold, acquire or dispose of property, but the property can be taken by the
State through adequate compensation by relevant laws (to save the authority of law).

Article 32:
❖ It is remedial in nature. In this sense, it states that an individual has the right to move the Supreme Court
in order to get his fundamental right enforced if they are violated.
❖ Therefore without remedy the fundamental rights may not be a real right.
❖ It is Article 32 that conferred the legal status on fundamental rights and makes fundamental rights
enforceable that is why the Constitution has made Article 32 itself as a fundamental right.
❖ It talks about the Right to Constitutional remedies.
❖ BR. Ambedkar describes Article 32 as fundamental of all fundamental rights and the heart and soul of the
Constitution. Because the whole Constitution would become null and void without any protection. It
provides teeth to the fundamental right to bite.
❖ If fundamental rights are violated then they can approach the Supreme Court under Article 32, and High
Court under Article 226 of the constitution.
Sub Clauses:
❖ Article 32(1): It says that in case of violation of fundamental rights, anybody can approach the Supreme
Court directly.
❖ Article 32(2): It empowers Supreme Courts and High Courts to issue writs in the nature of habeas corpus,
mandamus, certiorari, prohibition and quo-warranto to enforce fundamental rights. Writs have been
borrowed from the English constitution.
❖ Article 32(3): It empowers quasi-judicial bodies like CAT (Central Administrative Tribunal), SAT (State
Administrative Tribunal), IT tribunals to issue writs.

Article 32 (2):
❖ It empowers the Supreme Court to issue prerogative writs, such as Habeas Corpus, Mandamus,
Prohibition, Certiorari and Quo-warranto.
❖ Under Article 32 (2) the Supreme Court has a duty to implement fundamental rights if they are violated.
❖ Writ jurisdiction had been borrowed from the English Constitution.
❖ Under the Indian Constitution the Supreme Court and High Court enjoy writ jurisdiction under Article 32
and Article 226 respectively.
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❖ The subordinate courts do not enjoy writ jurisdiction.

❖ The power of judicial review is implicit under the writ jurisdiction of the Supreme Court and High Courts.
❖ Further, the Supreme Court has expanded this scope of writ jurisdiction by including the concept of Public
Interest Litigation (PIL) under its jurisdiction.
❖ Article 32 (3) empowers the Parliament to confer the direction on other bodies.
❖ The Parliament enacted the Administrative Tribunal Act of 1985 which has conferred jurisdiction on the
Central Administrative Tribunal and the State Administrative Tribunal.

Habeas Corpus:
❖ This writ is issued in order to safeguard or protect individual liberty such as the right to freedom of
movement.
❖ It can be issued both against the public authority or an individual.
❖ It is issued to determine whether the detention of a person is legally justified or not.
❖ It can be preferred before the court by any individual or organization and not necessarily only by aggrieved
individuals.
❖ Therefore, the principal locus standi does not imply in the case of a writ of Habeas Corpus. It means legal
justification for an individual to approach the court for seeking justice.
❖ Habeas Corpus literally means to have the body.
❖ It means to have the production of a detained person physically before the court in order to ascertain the
ground of his detention.
❖ However, if the material fact related to his detention is presented to the court, then the court may not insist
upon the physical production of the detained person. If the court finds its detention is illegal it will order for
his release immediately.

Mandamus:
❖ Literally means command. Therefore, the writ is issued in the form of command by the Court. It can be
issued only against a person holding public office or against a public authority. Example, the Vice
Chancellor of Delhi University holds a public office and the MCD Commissioner is a public authority.
❖ It cannot be issued against an individual or private organization. It is issued in order to enforce statutory
rights but not a private right.
❖ The right created by law is called the statutory right and other rights are called private rights.
❖ The court issued this writ if a public office or a public authority has failed to discharge his official duty and,
in the process, the legal right of an individual is violated.
❖ Only the aggrieved individual can approach the court to file the writ of Mandamus. However, this writ
cannot be issued against the President or a Governor of a State.

Prohibition:
❖ This writ can be issued against the Judicial or a quasi-judicial body like CAT (Central Administrative
Tribunal), SAT, Income Tax Tribunal, etc.
❖ It is issued in order to ensure that the judicial or quasi-judicial body keeps within its limits of jurisdiction
and does not usher that is assumed excess jurisdiction.
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❖ If a judicial or quasi-judicial body takes up a case in excess of his jurisdiction then his writ of prohibition
prohibits the judicial or quasi-judicial body from proceeding with the trial of the case only the aggrieved
individual can file the writ of prohibition.

Certiorari:
❖ This writ is similar to the writ of prohibition.
❖ It is issued in order to quash i.e., to cancel the judgement, direction or order issued by a judicial or quasi-
judicial body in excess of his jurisdiction.
❖ The writ of Certiorari can also be issued against the executive body if it performs quasi-judicial functions.

Quo-Warranto:
❖ It literally means “what is your authority”.
❖ The object of this writ is to ensure that a person occupying a public office is qualified to hold that office.
❖ Therefore, this writ can be issued only against a person holding a public office.
❖ It can be preferred by any individual whether he himself is qualified to hold that office or not.
❖ When this writ is issued by the Court then the person holding the public office stands removed from his
public office.

Difference between Writ Jurisdiction of Supreme Court and High Court:

Supreme Court (Under Article 32) High Court (Under Article 226)
❖ The Supreme Court can issue the writs only for ❖ The High Court can issue writs for the enforcement
the enforcement of fundamental rights and of both fundamental rights and other legal rights.
not for the enforcement of other legal rights. ❖ Under Article 226 the High Courts are not under
❖ The Supreme Court under Constitutional constitutional duty to enforce fundamental rights.
obligations to enforce fundamental rights if The High Courts may or may not enforce the
they are found violated. fundamental rights.
❖ Its writ jurisdiction extends over the whole of ❖ Its jurisdiction is limited to territorial jurisdiction.
India.

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