The right to constitutional remedies, which is the heart and soul of the Constitution, contains a silent provision waiting to be activated to meet the demands of changing times. Article 32(3), a deliberate construct of the Constituent Assembly, empowers Parliament to confer the Supreme Court’s writ jurisdiction upon other courts.
The historical record is unequivocal: this was not a mere procedural footnote, but a conscious design to plant the seeds of constitutional remedy across the judicial landscape, ensuring that the enforcement of fundamental rights would not be the exclusive preserve of distant top courts. Today, the continued relegation of writ jurisdiction solely to the Supreme Court and the 25 high courts has precipitated a systemic crisis.
It has created a debilitating bottleneck in justice delivery and stands in stark contradiction to the decentralised vision articulated by the framers of the Constitution. The activation of Article 32(3) through parliamentary legislation to empower subordinate constitutional courts with limited writ authority is, therefore, no longer a matter of legal discretion, but an imperative of constitutional fidelity and judicial pragmatism.
The Constituent Assembly debates reveal a clear and progressive intent to expand, not constrict, the avenues for obtaining writ remedies.
The initial draft of what became Article 32 contained the pivotal phrase, “Without prejudice to the powers that may be vested in this behalf in other courts.” It sparked an immediate and insightful debate on May 2, 1947.
K Santhanam perceptively questioned which authority would hold the power to vest such jurisdiction, warning against a scenario where rights could be stifled by making the Supreme Court the only original forum, a place prohibitively distant for the ordinary citizen, or by relegating remedies to a dilatory appellate process from the lowest magistracy.
While Sardar Patel reassured that the full judicial setup would be holistically considered, an underlying principle was established: the architecture for rights enforcement required multiple access points. This principle found even more potent expression in a subsequent debate on July 21, when Alladi Krishnaswami Ayyar moved an amendment to equip all high courts with writ powers against the draft clause that sought to apply the provisions of the Government of India Act, 1935 mutatis mutandis to provincial judiciary.
He highlighted the absurd disparity where, under the 1935 Act, only the Presidency towns enjoyed the benefit of prerogative writs or their statutory substitutes, leaving citizens in mofussil areas to “the dilatory remedy of an ordinary suit”. His amendment, supported by members like B Pocker and K M Munshi, and accepted by Sardar Patel, was driven by the objective of ensuring “every high court in India should have the same power” as the King’s Bench in England, thereby providing an “effective-remedy for the fundamental rights” across the entire nation.
The trajectory of the debate was unidirectional: from a limited, colonial-era privilege to a universal, constitutional guarantee accessible in principal geographical forums closer to the people. Article 32(3) became the logical extension of this philosophy, providing the parliamentary gateway to further diffuse this power down the judicial hierarchy if necessity demanded.
That necessity now manifests with acute severity in the contemporary reality of an overburdened, geographically concentrated and linguistically alienating writ jurisdiction.
According to the National Judicial Database, over 18 lakh civil and criminal writ petitions are pending before high courts. Each petition represents a citizen’s cry against the State’s excess or indifference—a plea for liberty, a demand for performance of duty, or a challenge to usurped office.
The concentration of this immense docket in only around two dozen forums creates insurmountable logistical pressure, leading to prolonged delays that themselves defeat the essential purpose of a writ, which is a swift and urgent remedy.
This centralisation imposes a crushing fiscal and geographical chasm between the citizen and justice. For an ordinary middle-class individual in India or a village the Northeastern and hilly states, securing redress for unlawful detention or official apathy requires journeying to the distant state capital, retaining often prohibitively expensive counsel versed in the complex art of writ pleading, and navigating a process conducted overwhelmingly in English. This linguistic barrier is particularly pernicious.
When the grievance originates and exists entirely in a vernacular context, the requirement to translate it into English creates a profound disconnect. It inverts the maxim ubi jus ibi remedium (where there is a right, there is a remedy) into a cruel paradox: the right exists everywhere, but the remedy is locked behind gates of distance, cost and language, accessible only to a privileged few. This creates a two-tiered system of justice: one for the affluent and connected who can access the high courts, and another for the vast majority for whom the constitutional remedy is a theoretical construct. This was precisely the “dilatory and inconvenient” scenario that the founding fathers feared.
Empowering subordinate courts with jurisdiction over defined categories of writs presents a practical solution. The model is not without precedent in comparative constitutional democracies, where district courts are empowered to ensure that rights are enforceable close to where they are violated.
A vast number of writs—particularly those seeking mandamus to compel local officials to perform statutory duties or habeas corpus challenging detention by local police—are inherently local in nature. Allowing these to be filed in the subordinate courts would instantly bring justice to the citizen’s doorstep, reduce travel costs to zero, enable pleadings in the local language, and leverage the district judge’s intimate understanding of local administration and ground realities. This would allow high courts to evolve into true constitutional courts, focusing on complex questions of law, inter-state issues, and appeals from subordinate courts, thereby enhancing the quality and depth of their jurisprudence.
The law under Article 32(3) may need to clearly delineate the scope—for instance, on conferring jurisdiction on district courts for habeas corpus against police detention within the district and mandamus against district-level authorities, while reserving challenges to state or national authorities, certiorari and quo warranto for the higher judiciary. It can mandate specialised training for designated writ judges and create a streamlined appeal mechanism. This is not a dilution of authority but a rational distribution, creating a tiered, accessible and efficient system for rights enforcement that mirrors the tiered system for civil and criminal justice.
Parliament’s failure to act upon Article 32(3) for over seven decades constitutes a remarkable neglect of a clear constitutional mandate. The provision exists not as a decorative relic but as an operational tool placed in the hands of the legislature to adapt the machinery of justice to evolving needs. The framers, in their wisdom, could not have foreseen the population explosion, the expansion of the state or the litigation boom, but they did foresee the need for flexibility. They provided the key. It is now for Parliament to turn it.
The burgeoning dockets, the stories of citizens priced out of justice and systemic delays are all powerful indictments of the status quo. By enacting a reasoned law to empower subordinate courts, Parliament would honour the original intent of the Constituent Assembly, alleviate the crushing burden on high courts and, most importantly, restore the promise of a prompt and accessible constitutional remedy for every citizen, irrespective of their means or location.
The promise of justice—the first in the Preamble—must not remain a distant dream deferred by procedural centralisation. It must become a living, accessible reality down to every taluka and tehsil.
Manish Tewari | MP, lawyer, and former Union I&B minister
(Views are personal)
(manishtewari01@gmail.com)