June 13, 2021

All about Article 32 of the Constitution of India

Constitution

                              

Abstract

The Constitution of India has always focussed upon the concept of Fundamental Rights. It has provided the remedies for enforcement of such rights. So, the author intends to give a proper evaluation of the Article 32 and its further validation down the years. Author deals with the conceptual overview and also the related cases. There is substantive interpretation. Insight into concepts such as ‘Right to move the Supreme Court and Writs has been given primary importance. Validity of the provisions in Indian scenario would closely deal in this paper.

Introduction

When the law becomes a weapon of oppression rather than an equalising force, democracy is in danger. Article 32 deals with the ‘Right to Constitutional Remedies’, and affirms the right of an individual to move the (SC) by appropriate proceedings for the enforcement of the rights conferred in Part III of the constitution.

Article 32 of the Indian Constitution is considered one the most important articles when it comes to the enforcement of the rights of an individual. It gives rights to an individual to seek justice in a court when they feel that their rights have been infringed or ‘unduly deprived’. The SC has the power to execute the rights that have been bestowed upon an individual by the constitution.

Under Article 32, an assured right is guaranteed to persons for the protection of fundamental rights as the statute grants a person the right to immediately reach the Supreme Court without pursuing a longer procedure by going to the lower courts first as the primary object of Writ Jurisdiction under Article 32 is to enforce fundamental rights. 

Dr. B.R. Ambedkar has said, “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 —It is the very soul of the Constitution and the very heart of it”.

Concept and Purpose of Article 32 of the Constitution of India

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights’.

Nature of Writ Jurisdiction under Article 32 of the Constitution of India

Factors Guiding the DiscretionMeaning
1. Locus StandiRight to bring an action or to be heard before a court.
2. Alternative ReliefRemedies sought in a lawsuit in various or alternative forms.
3. Res JudicataA case that has been decided.
4. Questions of the FactAn issue that involves resolution of a factual dispute or controversy.
5. LachesA defence to an equitable action, that bars recovery by the plaintiff because of the plaintiff’s undue delay in seeking relief.

Article 32(1): Guarantee to remedy

Article 32(2): Power of Supreme Court (and high courts) to issue writs

Article 32(3): Power of parliament to confer the power to issue writs to other courts (so far this power is not exercised.

Article 32(4): Suspension of Fundamental Rights. Supreme Court which is guardian of the fundamental rights in India has three kinds of jurisdiction: original, appellate & advisory.

Article 32 uses the power of original jurisdiction of the Supreme Court by which any person who has a complaint that his / her fundamental right has been violated within the territory of India may move directly to the Supreme Court. He / She may move to the High Court does not imply that he/ she cannot move directly to the Supreme Court. Original jurisdiction of the Supreme Court extends to any dispute between Government of India and one or more States between the Government of India and any State or States on one side and one or more States on the other or between two or more States.

Writs under Article 32 of the Constitution of India

In case of violation of fundamental rights The high court and supreme court can be approached .

 There are five types of writs can be issued in case of violation of fundamental rights, they are: 

  1. Habeas Corpus: This means that ‘produce the body’, the main purpose of this writ is to claim against the unlawful detention of an individual. The purpose of it is to protect an individual from unlawful harm caused by the administrative system.

A criminal who is convicted has the right to seek the assistance of the court by filing an application for “writ of Habeas Corpus” if he believes that he has been wrongfully imprisoned and the conditions in which he has been held falls below minimum legal standards for human treatment. 

The first Habeas Corpus case of India was that in Kerala where it was filed by the victims’ father as the victim P. Rajan who was a college student was arrested by the Kerala police and being unable to bear the torture he died in police custody. So, his father Mr T.V. Eachara Warrier filed a writ of Habeas Corpus and it was proved that he died in police custody.

Narayan v. Ishwarlal[1]

In this case it was heldthat the court would rely on the way of the procedures in which the locale has been executed.

 ADM Jabalpur v. Shivakant Shukla [1] which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the emergency (Article 359

  • Quo Warranto: It means ‘By what means’. This writ shall be invoked in public service cases and shall be given to preclude people to whom he is not entitled from participating in public office.

In the case of Ashok Pandey v. Mayawati[2], the writ of Quo Warranto was refused against Ms Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha members.

Then in the case of G.D. Karkare v. T.L. Shevde[3], the High Court of Nagpur observed that “In proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office.”

  • Mandamus: It literally means ‘We Command’. This writ is provided for the proper execution of compulsory and exclusively ministerial duties and is issued to a lower court or government official by a superior court.

In Rashid Ahmad v. Municipal Board[4], it was held that in relation to Fundamental Rights the availability of alternative remedy cannot be an absolute bar for the issue of writ though the fact may be taken into consideration.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a book had applied for the writ of mandamus against the Director of Public Instruction for the inclusion of his book in the list of books which were approved as text-books in schools. But the writ was not allowed as the matter was completely within the discretion of D.I.P and he was not bound to approve the book.

  • Certiorari: It literally means to be certified. It is provided where the power is wrongfully exercised and the judgment of the case is focused on it.

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that Certiorari is always available against inferior courts and not against equal or higher court, i.e., it cannot be issued by a High Court against any High Court or benches much less to the Supreme Court and any of its benches.

In the case of T.C. Basappa v. T. Nagappa & Anr.[5], it was held by the constitution bench that certiorari maybe and is generally granted when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction.

  • Prohibition: That is a writ that orders a lower court to avoid doing anything that the statute forbids it to do. The primary aim is to prohibit an inferior court from violating its authority or behaving in violation of the provisions of Natural Justice.

In the case of East India Commercial Co. Ltd v. Collector of Customs [6], a writ of prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on the ground that the proceeding is without or in excess of jurisdiction or in contradiction with the laws of the land, statutes or otherwise.

In the case of Bengal Immunity Co. Ltd[7], the Supreme Court pointed out that where an inferior tribunal is shown to have seized jurisdiction which does not belong to it then that consideration is irrelevant and the writ of Prohibition has to be issued as a right.

Analysis of Article 32 of the Constitution of India

When a crime is committed against a person or a person is infringed of his fundamental rights, the victim loses a lot apart from incurring damages and injuries. The work of the judiciary should not only be to punish the guilty but also to compensate the victim as even if the accused is punished, the victim’s loss is not compensated. It is not like that the victims of crime can never ask for the compensation as such a prayer is available under the civil laws, but filing two different suits for the same offence in two different courts. This may lead to further traumatisation to the victims.

The idea behind awarding monetary compensation to the victims of crime or the victims of state lawlessness is both legal as well as humanitarian. If the state is unable to protect the individual’s rights, then the state is under legal obligation to compensate him. Many times the victim passes through many hardships, pain and many times the result is the permanent loss of the source of income, which makes it sensible and logical for him to be compensated.

In the Indian culture of the 21st century, many individuals need their ladies to be “unadulterated” or pure virgins. A victim of rape in such cases not just loses out the chance to wed into an otherwise decent family but is segregated upon for no blame of hers. It is said that the most priced possession of a lady is her dignity and respect. In the general public where individuals still have an old mentality, the life of such a lady only degrades. It just bodes well to compensate such a victim well apart from punishing the accused. Mental shock, loss of income and cost of litigation should be taken into consideration when coming out with compensation and the Courts should hence compensate the victims more frequently

Amendments to Article 32

‘Anti-freedom’ clauses were included in Article 32 by the 42nd Amendment. Such an amendment was made during the time of emergency when it was passed to reduce ‘both directly and indirectly’ the jurisdiction of the Supreme Court and the High Courts to review the application of fundamental rights. Then 43rd amendment of the Indian Constitution was passed which repealed Article 32A immediately after the emergency was revoked. Following the amendment, the Supreme Court again gained the power to quash the state laws. Also, the High Courts got the power to question the constitutional validity of central laws.

Limitations to Article 32 of the Constitution of India

  • Under Article 33, the Parliament is empowered to make changes in the application of Fundamental Rights to armed forces and the police are empowered with the duty to ensure proper discharge of their duties.
  • During the operation of Martial law in any area, any person may be indemnified by the Parliament, if such person is in service of the state or central government for the acts of maintenance or restoration of law and order under Article 34.
  • Under Article 352- when an emergency is proclaimed, the guaranteed Fundamental Rights of the citizens remains suspended. Also, Fundamental Rights guaranteed under Article 19 is restricted by the Parliament under Article 358 during the pendency of an emergency.
  • Article 359 confers the power to the President to suspend Article 32 of the Constitution. The order is to be submitted to the Parliament and the Parliament may disapprove President’s order.

Conclusion

We arrive at the conclusion that compensation isn’t just required yet it is in reality a critical part of even criminal law and the courts ought not to utilize this sparingly but rather a little generously. Of course they ought to be cautious of not granting too high a compensation and consequently ought to be careful.

Article 32 has allowed wide powers to the Supreme Court to protect the essential privileges of Indians, and as I would see it is a standout amongst the most liberal article in the constitution of India. In spite of the fact that our constitution ensures fundamental rights, they are regularly alluded to as unfundamental. The reason is that our justice system is diverting, bulky, moderate and costly. Infringement of major rights frequently goes unreported due to the sheer measure of time and cash one needs to spend to get justice. This is the reason instead of looking for lawful review individuals regularly disregard the encroachment of their essential rights. What’s more, this is presumably one of the most grounded reasons why laudable damages and compensation ought to be granted.

The Judicial activism in such manner to uphold and to guarantee that basic rights stay crucial is an appreciated advance. The pattern is plainly heading towards the correct bearing. It will be interesting to perceive how judiciary, by using its dynamism, makes the machinery smoother, legitimate and just.


[1] AIR 1965 SC 1818

[2] AIR 2007 SC 2259

[3] AIR 1952 Nag. 333.

[4] AIR 1952 Orissa 344

[5] 1954 AIR 240

[6] 1962 AIR 1893

[7] AIR 1955 SC 661

Author: Surbhi Kumari (Amity Law School, Patna)

Essay Competition

Leave a Reply

You cannot copy content of this page