WRITS AND REMEDIES
UBI jus ibi remedium—where there is a right, there is a
remedy—is a defining principle of the common law.
JURISDICTION
An important feature of Article 32 is that it does not
merely guarantee the protection of fundamental rights.
In other words, it is not found alongside other Articles of
the Constitution that define the general jurisdiction of
the Supreme Court.
Article 226 is wider in scope than Article 32. The High
Courts are authorised under Article 226 to issue
directions, orders, or writs to any person or authority,
including any government to enforce fundamental rights
and ‘for any other purpose’. The difference in the
language of Articles 32 and 226 gives a clear indication
that their nature and purpose are different. The right
guaranteed by Article 32 can be exercised only and only
for the enforcement of fundamental rights.
CONSTITUTIONAL REMEDIES: PROCEDURAL ASPECTS
1. RES JUDICATA
A decision on an issue raised in a writ petition under
Article 226 or Article 32 of the Constitution would also
operate as res judicata between the same parties in
subsequent judicial proceedings.72 The only exception is
that the rule of res judicata would not operate to the
detriment or impairment of a fundamental right It is
necessary to emphasise that the application of the
doctrine of res judicata to the petitions filed under
Article 32 does not in any way impair or affect the
content of the fundamental rights guaranteed to the
citizens of India. It is relevant to note that the Supreme
Court has permitted a party to pursue one of the two
parallel remedies, provided that both are not being
pursued at the same time.
2. Questions of Fact
When a manifest error has resulted in the failure of
justice or there has been a miscarriage of justice,
interference under Article 226 would be called for. the
Court elaborated on this when considering the exercise
of certiorari jurisdiction by the Delhi High Court: ‘The writ
of certiorari under Article 226 … can be issued only when
there is a failure of justice and it cannot be issued merely
because it may be legally permissible to do so.’80 In the
interest of justice, the power can also be exercised to
summon a deponent for cross-examination where a
conclusion cannot be arrived at on the basis of affidavits.
3. Political Questions
Taking note of R (Bancoult) v Secretary of State for
Foreign & Commonwealth Affairs (No 2),83 the Supreme
Court has held that ‘the contemporary English view is
that in principle even such “political questions” and
exercise of prerogative power will be subject to judicial
review on principles of legality, rationality or procedural
impropriety’ is applicable in India as well.
CONCLUSION
An important development relating to constitutional
remedies in India that has not been explored by this
chapter is public interest litigation. This development has
both procedural aspects—that is, the dilution of the
principle of locus standi and increased access to justice—
and substantive features, such as the recognition of a
range of enumerated rights within the right to life in
Article 21. It is important to note that the liberal
interpretation given to the standing requirements in
Articles 32 and 226 have been the central medium
through which thisdevelopment has occurred. two
features of the Indian legal system have played a key role
in the weakening of constitutional remedies in India.
First, the growth of tribunals in India has seriously
impacted the traditional writ jurisdiction of the High
Courts. While the Supreme Court rightly observed, in
Union of India v R Gandhi, that if tribunals are vested
with the powers of High Courts they must also be given
the same degree of independence and capacity as such
courts, this is yet to be realised in practice.93 The second
important feature that has plagued the realisation of
remedies is the very capacity of the judicial system. With
a judicial system burdened by backlogs, delays, and
inefficiency, the timely recognition of rights violations,
the awarding of remedies, and above all their
enforcement, all remain a major challenge in India.
