Right to Remedy

A right without a remedy does not have much substance. The Fundamental Rights guaranteed by the Constitution would have been worth nothing had the Constitution not provided an effective mechanism for their enforcement. Article 32 confers power on the Supreme Court to enforce the Fundamental Rights. Under Article 32, the Supreme Court enjoys a broad discretion in the matter of framing the writs to suits the exigencies of the particular case and it would not throw out the application of the petition simply on the ground that the proper writ or direction has not prayed for. Underlining the significance of Article 32, the Supreme Court has characterized the jurisdiction conferred on it by Article 32 as “an important and integral part of the basic structure of the Constitution” because it is meaningless to confer Fundamental Rights without providing an effective remedy for their enforcement, if and when they are violated.

Article 32 (1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights enumerated in the Constitution. Article 32(2) empowers the Supreme Court to issue appropriate orders or directions or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of the petitioner’s Fundamental Rights. Article 32(3) empowers Parliament by law to empower any other Court to exercise within the local limits of its jurisdiction all or of the powers exercisable by the Supreme Court under Article 32(2). According to Article 32(4), the right guaranteed by Article 32 ‘shall not be suspended except as otherwise provided for by the Constitution.

In Bandhua Mukti Morcha, the Apex Court has clarified that procedurally, under Article 32, it is not bound to follow the ordinary adversary procedure and may adopt such procedure as may be effective for the enforcement of the Fundamental Rights. When a writ petition was moved on behalf of some workmen that they were being in bondage, the Court appointed two persons as commissioners to make report on the petitioner’s condition. It was argued that their report has no evidentiary value since what was stated therein was based only on ex parte evidence which has not been tested by cross-examination. The Court held the argument not well-founded and rejected it, as it was based upon a total misconception of the true nature of a proceeding under Article 32.

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