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Article 32 – Constitutional remedy

Article 32 – Constitutional remedy

Article 32:

  • Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
  • It states that 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”.
  • The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
  • The Article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion.
  • Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

If I was asked to name any particular Article in this Constitution as the most important — an 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 on Article 32

Can High Courts be approached in cases of violation of fundamental rights?

Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

* Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)

* Mandamus — directing public officials, governments, courts to perform a statutory duty;

* Quo warranto — to show by what warrant is a person holding public office;

* Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and

* Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.

In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court. When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32. Article 226, however, is not a fundamental right like Article 32.

Supreme Court’s recent observations on Article 32:

High Court as first remedy:

  •  In the case of the journalist Siddique Kappan, the court asked why the petitioners could not go to the High Court.
  •  In another case last week invoking Article 32, filed by a Nagpur-based man arrested in three cases for alleged defamatory content against Maharashtra Chief Minister Uddhav Thackeray and others, the same Bench directed him to approach the High Court first.

Supreme Court as Supreme:

In another matter, on a contempt notice to the Assistant Secretary of the Maharashtra Assembly, the court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that “there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country”.

During the Emergency, in Additional District Magistrate, Jabalpur vs S S Shukla (1976), the Supreme Court had said that the citizen loses his right to approach the court under Article 32.

Constitutional experts say that it is eventually at the discretion of the Supreme Court and each individual judge to decide whether an intervention is warranted in a case, which could also be heard by the High Court first.