Article 32: Right to Constitutional Remedies

Context (ET): Dr Ambedkar considered Article 32 as the heart and soul of the Constitution.

Article 32 of the Indian Constitution: Right to Constitutional Remedies

Article 32 provides every Indian citizen with the right to seek constitutional remedy from the Supreme Court if they have been deprived of their fundamental rights (FRs).
Like all fundamental rights, the Supreme Court has mandatory (not discretionary) jurisdiction for violation of Article 32.
The Parliament can empower any other court to issue directions, orders, and writs of all kinds without prejudicing the same powers of the Supreme Court. “Any other court” does not include the HCs.
Article 226 has already conferred discretionary and intrinsic writ jurisdiction on High Courts.
The right to move to the Supreme Court shall not be suspended except as otherwise provided for by the Indian Constitution.
President can suspend the right to move to any court for the enforcement of Fundamental Rights during a National Emergency.
Article 32 vests the Supreme Court with ‘Original’ and ‘Wide’ but ‘Not Exclusive’ powers to enforce Fundamental Rights.

Original Powers: An aggrieved citizen can directly go to the SC, not necessarily by way of appeal.
Wide Powers: The SC’s powers in this regard are not restricted to issuing orders or directions but also writs of all kinds.
Not Exclusive Powers: The SC’s powers in this regard are concurrent with any other court as empowered by the Parliament for this purpose, e.g., the HC’s writ jurisdiction under Article 226.

Writs

1. Habeas Corpus (“To have the body”)

Purpose: To ensure that a person is not unlawfully detained or imprisoned.
Who can file: Any individual, even on behalf of the detained person.
Against whom: Public authorities or private individuals.
Not issued in cases where:
- detention is lawful,
- the proceeding is for contempt of a legislature or a court,
- detention is by a competent court,
- detention is outside the jurisdiction of the court.

2. Mandamus (“We command”)

Purpose: To command a public official or body to perform his official duties that he has failed or refused to perform.
Who can file: A person whose rights are directly affected by the non-performance of a duty.
Against whom: public official, a public body, a corporation, an inferior court, a tribunal, or the government, but not private individuals.
Cannot be issued:
- against a private individual or body,
- to enforce departmental instruction that does not possess statutory force,
- when the duty is discretionary in nature,
- to enforce a contractual obligation,
- against the President of India, the State Governors, and the Chief Justice of a High Court.

3. Prohibition (“To forbid”)

Purpose: Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction it does not possess.
While the writ of ‘Mandamus’ directs activity, the writ of ‘Prohibition’ directs inactivity.
Against whom: Issued only against judicial and quasi-judicial bodies and cannot be issued against administrative authorities, legislative bodies, or private entities.

4. Certiorari (“To be certified or To be informed”)

Purpose: Issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
Issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
Against whom: Judicial, quasi-judicial, as well as administrative authorities, but not available against legislative bodies, private individuals or bodies, etc.

5. Quo Warranto (“By what authority”)

Purpose: To challenge the legal right of a person to hold a public office. Prevents illegal usurpation of public office by a person.
Who can file: Any interested person and not necessarily the aggrieved person.
Issued in case of substantial public office of a permanent character created by a statute or by the Constitution. Cannot be issued in the case of ministerial or private offices.

Conditions under which the Supreme Court may refuse to grant the remedy

Res Judicata – Res Judicata is applicable on a writ petition filed under Article 32.
- Habeas Corpus is an exception to this, but it can’t be filed on the same facts more than once.
Inordinate Delay In Filing Petition – The Court may refuse to grant relief when there is an excessive delay in filing the petition without reasonable explanations.
Malicious Petition – If a petition is malicious and if it is so found out, it may be liable to be dismissed.
Misrepresentation or Suppression of Material facts—The Petition can be dismissed at any stage if the Petitioner is found to have misrepresented material facts.
Existence of adequate alternative remedy – The existence of an alternate remedy is not an absolute Rule of Law, and there can be valid exceptions.

Res Judicata: A matter that has been adjudicated by a competent court and, therefore, may not be pursued further by the same parties.

Can Article 32 be amended under Article 368?

Article 32 cannot be amended as it is a part of the basic structure of the constitution.
Kesavananda Bharati v. State of Kerala: The Supreme Court established the doctrine of basic structure and stated that the ‘basic’ can’t be amended.
L. Chandra Kumar vs. Union Of India and Others: The Supreme Court declared Article 32 an integral part of the basic structure. Hence, Article 368 does not apply to Article 32.

SC’s Observations on Article 32

Telugu poet Varavara Rao’s case: The Supreme Court directed the Bombay HC to expedite the hearing on a bail plea filed on medical grounds, which has been pending since September.
Journalist Siddique Kappan case: The court asked why the petitioners could not go to the HC.
Arnab Goswami Case: The Supreme Court affirmed that the right to petition under Article 32 is fundamental, stating that any hindrance to it constitutes a significant interference in the justice system.
Romesh Thappar vs State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights.

Significance of Article 32

Protection of Fundamental Rights – Provide individuals with a swift and effective means to seek judicial intervention when the state or any other authority infringes upon their rights.
Judicial Review – Enable the judiciary to exercise judicial review over the actions of government bodies, administrative authorities, and other institutions.
Checks and Balances – Allows courts to review and maintain a system of checks and balances.
Prevention of Abuse of Power – Acts as preventive measures against the arbitrary exercise of authority by public officials or bodies.
Promotion of Justice and Equity – Contributes to the promotion of justice and equity by providing individuals with access to timely and effective remedies against injustice, oppression, or unlawful deprivation of rights.

Article 32 and Article 226: Differences

Grounds of Difference	Article 32	Article 226
Rights	Article 32 is a fundamental right under Part III.	It is not a fundamental right; it is a constitutional right.
Suspension	It can be suspended if the President has declared an emergency under Article 359.	It cannot be suspended even at the time of emergency under Article 359.
Scope	Limited scope and applicable only for remedy if fundamental rights are violated.	Article 226 has a broader scope and is applicable if either a fundamental right or a legal right has been violated.
Territorial Jurisdiction	Pan India Territorial Jurisdiction.	Empowers the High Court to issue a writ within its local jurisdiction and has a narrower territorial jurisdiction.
Discretion Power	The Supreme Court can’t refuse rights and remedies under it.	Article 226 gives the High Court Discretionary power; hence, it is up to the High Court’s wisdom to issue a writ or not.