Article 32: Right to Constitutional Remedy
Published on : 4 July, 2020
“If I was asked to name any particular article in the Constitution as the most important Article without which this Constitution would be a nullity. I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it” – B.R. Ambedkar
Article 32: Original Text
Remedies for enforcement of rights conferred by this Part
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.
3. Without prejudice to the powers conferred on the Supreme Court by clauses 1 and 2, Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause 2.
4. The right guaranteed by the article shall not be suspended except as otherwise provided for by this Constitution.
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.
3. Without prejudice to the powers conferred on the Supreme Court by clauses 1 and 2, Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause 2.
4. The right guaranteed by the article shall not be suspended except as otherwise provided for by this Constitution.
5 Types of Writs under Article 32 of the Constitution.
Article 32: Introduction
Right to Constitutional Remedy is the most important right of the Indian Constitution. This is the 6th and the last Fundamental Right of the Indian Constitution. Article 32 deals with the right to constitutional remedy. This right is giving the power to every person to move to the Supreme Court on the infringement of any of his Fundamental Rights under Article 32. They also have an option to move to high court under Article 226 of the Indian Constitution. This Article is made a part of the basic structure of the Indian Constitution.
This article is having 4 clauses in it. Let’s look at each one of them:
Article 32- Clause 1: Right to move to Supreme Court
Clause 1 of this article is giving the right to move to the Supreme Court for the enforcement of the Fundamental Rights which are given under part 3 of the Constitution. It is important to understand that only “appropriate proceedings” will be allowed to be taken to the Supreme Court and not any sort of proceedings.
In the case of Daryao Singh v. State of U.P., AIR 1961, the Supreme Court said that the nature of the proceeding like the order or writ used by the person will decide if the proceeding is appropriate or not. A person needs to approach the court using the right appropriate proceeding so that he can claim his right.
The Supreme Court has also allowed the concept of Public Interest Litigation in this Article. The concept of PIL will be dealt with by us later in this article.
Article 32 – Clause 2: Writs, Directions and Orders
This clause is giving the power to the Supreme Court to give any direction, order or writ like habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of the Fundamental right which is coming under this clause.
This clause is having a wide jurisdiction as it not only gives the power to the Supreme Court to issue writs but also gives the power to the Court to give certain directions and orders which are important for the implementation of that order.
This clause is having a wide jurisdiction as it not only gives the power to the Supreme Court to issue writs but also gives the power to the Court to give certain directions and orders which are important for the implementation of that order.
Let us look at all the 5 Writs one by one:
1. Habeas Corpus: This word means ‘to have a body’. This writ is issued by the court to bring the body of the imprisoned person to itself and then look into the legality of his imprisonment. If the court finds out that the person is unnecessarily detained then he can be set free by the court.
1. Habeas Corpus: This word means ‘to have a body’. This writ is issued by the court to bring the body of the imprisoned person to itself and then look into the legality of his imprisonment. If the court finds out that the person is unnecessarily detained then he can be set free by the court.
This writ can be issued against any private person or government authority that are having the concerned person in his authority. This writ is issued for the enforcement of the Fundamental Rights and when the order of detention is Ultra Vires.
2. Mandamus: Mandamus means ‘Command’. This writ commands the person to do his legal or quasi-legal duty. This is issued usually because the person in duty has failed in performing his duty. It is issued for the enforcement of Fundamental Rights.
3. Prohibition: The writ of Prohibition is issued by the Supreme Court to a lower court forbidding them to stop proceeding in a case which is completely outside its jurisdiction. This writ commands inactivity to the lower courts.
4. Certiorari: This writ is issued to a lower court by the Supreme Court. Under this writ, the Supreme Court quashes the decision or order of a lower court. The decision is quashed because the lower court was working outside its jurisdiction.
Certiorari is issued at a later stage when the decision is already given by the court. On the other hand, writ of Prohibition is issued when the proceeding is still going on in the lower court.
Certiorari is issued at a later stage when the decision is already given by the court. On the other hand, writ of Prohibition is issued when the proceeding is still going on in the lower court.
5. Quo Warranto: This is the 5th and the last writ issued by the Supreme Court under Article 32. In this writ, the Supreme Court enquires about the legality of a claim of a person to a public position. If the court finds that it is not a right claim then-Supreme Court will remove that person using this writ.
It is important to remember that the office must be a public office created by a Statute or by the Constitution of India. The position of that person must be at a substantive level and not at the level of a peon or a servant. There must be a contravention of law when that person is holding that position.
It is important to remember that the office must be a public office created by a Statute or by the Constitution of India. The position of that person must be at a substantive level and not at the level of a peon or a servant. There must be a contravention of law when that person is holding that position.
Directions and Orders under Clause 2 of Article 32
Article 32 also gives the power to the Supreme Court to issue orders and directions which are important for the implementation of the decisions of the Supreme Court. So we can say that Article 32 is not only restricted to writs only.
Article 32- Clause 3: Power of Parliament for Lower Courts
Clause 3 of Article 32 is giving the power to the Parliament of the Country to create laws which are giving the power to the Lower Courts to issue writs under their Jurisdiction. It is important to know that our Parliament has not used this power yet and has never given the power to any lower court to issue writs under its jurisdiction.
Article 32- Clause 4: Suspension of Rights under this Article
“In times of emergency the life of the State itself is in jeopardy and if the State is not able to protect itself in times of emergency, the individual himself will be found to have lost very existence.” – Ambedkar
This clause 4 says that the right given under Article 32 cannot be suspended except by the Constitution. This clause has a little reference to Article 358 and 359 of the Constitution.
Article 358 of the Constitution allows the suspension of Fundamental Rights under Article 19 (1) at the times of emergency on the grounds of war, external aggression or internal revolt under Article 352.
Article 359 of the Constitution gives the power to President to suspend all Fundamental Rights (except Article 20 and 21) during an emergency declared under Article 352. This order of the President must be approved by the Parliament.
Article 358 of the Constitution allows the suspension of Fundamental Rights under Article 19 (1) at the times of emergency on the grounds of war, external aggression or internal revolt under Article 352.
Article 359 of the Constitution gives the power to President to suspend all Fundamental Rights (except Article 20 and 21) during an emergency declared under Article 352. This order of the President must be approved by the Parliament.
Article 32 and Public Interest Litigation (PIL)
In early days the courts used to follow the rule of locus standi which says that the right to move the court is available only to the person whose legal right is infringed. It is because of this rule the poor people were not able to get access to Justice in the Society.
The Supreme Court of India decided a different approach and created the concept of Public Interest Litigation (PIL). Under this litigation, the court allowed people to file cases which are largely for the benefit of poor and backward people. This is made for people who cannot approach the court directly due to their economic and social condition in society.
The Supreme Court of India decided a different approach and created the concept of Public Interest Litigation (PIL). Under this litigation, the court allowed people to file cases which are largely for the benefit of poor and backward people. This is made for people who cannot approach the court directly due to their economic and social condition in society.
In the case of A.B.S.K. Sangh (Railway) v. Union of India, AIR 1981, the Supreme Court said that Public interest Litigation is the present Constitutional Jurisprudence.
In the case of S.P. Gupta v. Union of India, AIR 1982, the Supreme Court ruled that any member of the public can invoke the writ jurisdiction of the High Courts and Supreme Court seeking redressal from the violation of legal and constitutional rights of persons who cannot directly approach the court due to their poverty.
In the case of S.P. Gupta v. Union of India, AIR 1982, the Supreme Court ruled that any member of the public can invoke the writ jurisdiction of the High Courts and Supreme Court seeking redressal from the violation of legal and constitutional rights of persons who cannot directly approach the court due to their poverty.
What are the guidelines to be followed while filing PIL?
To contain the misuse of PIL the Supreme Court laid down the following guidelines:
1. The PIL should concern a large number of people.
2. The affected person must be from a disadvantaged section of society.
3. Where judicial law-making in necessary to avoid the exploitation.
4. Where judicial intervention is important to protect the sanctity of democratic institutions.
5. Where the government’s decision is harmful to natural resources like air and water.
1. The PIL should concern a large number of people.
2. The affected person must be from a disadvantaged section of society.
3. Where judicial law-making in necessary to avoid the exploitation.
4. Where judicial intervention is important to protect the sanctity of democratic institutions.
5. Where the government’s decision is harmful to natural resources like air and water.
What is the criticism of the PIL?
Following are the criticism of the PIL:
1. It is said that entertaining PIL can flood the Supreme Court with so many cases.
2. It leads to intervention in the work of Executive and Legislature. It might cause conflict between them.
3. The courts don’t have the power to execute and change the situation through its order. Due to which many times decisions don’t show any major change in the situation.
1. It is said that entertaining PIL can flood the Supreme Court with so many cases.
2. It leads to intervention in the work of Executive and Legislature. It might cause conflict between them.
3. The courts don’t have the power to execute and change the situation through its order. Due to which many times decisions don’t show any major change in the situation.
Article 32 and Res Judicata
Res Judicata means a thing which is already decided. This principle says that the things which are decided by a court must be taken as a conclusive truth until they are reversed by some higher court. So a subsequent proceeding cannot be started on a case which is already decided. This is a principle of Civil law. It is added in Section 11 of the Code of Civil Procedure, 1908.
The rule of Res Judicata is also applied on writ petitions filed under Article 32. This means that if a question under a writ petition is decided by the Supreme Court, so that same question cannot be re-opened.
In the case of Gulam Sarvar v. Union of India, AIR 1967, it was decided that the rule of res judicata won’t be applied in the writ of habeas corpus and in the petitions where the petitioner has been refused a writ under the High Court then he can approach the Supreme Court under Article 32.
In the case of Gulam Sarvar v. Union of India, AIR 1967, it was decided that the rule of res judicata won’t be applied in the writ of habeas corpus and in the petitions where the petitioner has been refused a writ under the High Court then he can approach the Supreme Court under Article 32.
Article 32 and Rule of Laches
Rule of Laches says that the court will help those who are vigilant about their rights and who do not sleep on their rights. So the courts will not entertain pleas which are coming to them after some considerable delay of time. So we can say that if a person wants him to be heard by the court then he must approach the court under Article 32 within some reasonable time. There is no specific limit of 90 days is given under the Limitation Act.
In the case of Trilokchand Motichand v. H.B. Munshi, AIR 1970, the main question which was to be decided was if there is any type of period of limitation which is to be followed while filing cases under Article 32 of the Indian Constitution. The question is of the discretion of the court, which is to be followed on the case by case basis. There is no lower limit or upper limit of the period of limitation while deciding the cases under Article 32. It will depend upon the discretion of the Judges.
What is the difference between Article 32 and Article 226?
Following are the differences between Article 32 and Article 226:
1. Article 32 is given for the Supreme Court and Article 226 is given to all the High Courts of different States.
2. Article 32 can only be enforced for Fundamental Rights. Article 226 by High Courts can be used for any other purpose. So this makes the power of Article 226 much wider than the power of the Supreme Court. High courts can give issue writs on any other purpose.
3. The power exercised by the High Courts cannot be in derogation of the power of the Supreme Court. This means that the order of the Supreme Court will supersede any previous order given by the High Courts.
4. A person can directly approach the Supreme Court under Article 32 for the violation of his Fundamental Rights. There is no need to go to the high court first.
1. Article 32 is given for the Supreme Court and Article 226 is given to all the High Courts of different States.
2. Article 32 can only be enforced for Fundamental Rights. Article 226 by High Courts can be used for any other purpose. So this makes the power of Article 226 much wider than the power of the Supreme Court. High courts can give issue writs on any other purpose.
3. The power exercised by the High Courts cannot be in derogation of the power of the Supreme Court. This means that the order of the Supreme Court will supersede any previous order given by the High Courts.
4. A person can directly approach the Supreme Court under Article 32 for the violation of his Fundamental Rights. There is no need to go to the high court first.
Conclusion of Article 32
So, we can finally say that Article 32 is the most important Fundamental Right which is given under the Indian Constitution. It is because of this Article we can enjoy all the Fundamental Rights. This article is a part of the basic structure of the Indian constitution. So no Constitutional Amendment can abridge this right given by our Constitution.
