May 17, 2021

Article 32 and Writ Petitions under Indian Constitution

Along with other, substantive fundamental rights in Part III, the Constitution of India also provides for right to enforce those fundamental rights under Article 32. This is a remedial right and under this Article, the Supreme Court can be approached directly. It does have retrospective effect. Article 32 has been held as integral part of the Indian Constitution even before the basic structure of the Indian Constitution was discussed by the Courts.[1] The Supreme Court of India, therefore, has a wide power under this provision, that is it can give directions which will act as a bridge till the legislature passes some law or the Executive takes action. Dr. Ambedkar called Article 32 “the heart and soul” of the Indian Constitution.[2]

Although an individual has the right to approach the Supreme Court under Article 32 for the purpose of enforcing Fundamental Rights, it is not a medium through which policy preferences or priorities should be determined and the supreme court is not the forum where the conflict between policies and priorities are to be attended.[3] Res judicata applies even in the cases of Article 32 and where the proceeding is barred by res judicata, Article 32 cannot be brought in.[4] The Supreme Court cannot give any direction to the Legislature or Executive which they are empowered to and is intra vires their authority.

Clause (1) reads that the right to approach the Supreme Court is guaranteed under this provision, by the way of having proper proceedings. “Appropriate proceedings” in this clause has been interpreted as that the word appropriate in this context, refers to the purpose of proceedings. The purpose of proceedings should be enforcement of fundamental rights and the form in which the Court is approached can be through a letter with no particular format too, when approached on behalf of the unprivileged sections of the society and for enforcement of their fundamental rights.[5] However, the Court is not bound to give any particular remedy to the petitioner.

Clause (2) of the Article states the powers which the Supreme Court has with respect to giving orders, issuing directions and writs. The Supreme Court can issue writs for purposes other than granting remedy for fundamental rights. These different types of writs are, Habeas Corpus, Certiorari, Quo warranto, Mandamus and Prohibition. Under the English law, these writs were collectively called prerogative rights. These five writs have been discussed in Article 226, which gives powers to the High Courts of India to issue the five writs as well. Clause (3) provides the Parliament the power to appoint any lower court, within its local jurisdiction, to have all the powers that Supreme Court has under clause (2). Lastly, under clause (4) it is stated that the right under Article 32 cannot be suspended except as provided in the Constitution itself. Writs are constitutional remedies which can be issued by the Supreme court and High Courts under Article 32 and Article 226 respectively.

When the Court issues the writ of Habeas Corpus, this done to release the person who had been confined without any legal justification. Through this writ, the Court reviews the unlawful detention of the person which infringes upon their liberty. The writ of habeas corpus does not apply in situations when a competent court has given the order of detention and where the order not wholly illegal or without jurisdiction.[6] The Court can not only issue the writ against the State but also any non-state individual who is holding the person under illegal custody. Habeas Corpus also applies where the detaining authority has held someone with mala fide intention or some ulterior motive.[7] It has been held that the writ shall not be issued to prevent any detention and will only lie when a person is already detained.

A writ of Certiorari shall be issued by the Court to the small courts, quasi-judicial bodies or tribunals for transfer of the pending proceeding and in some cases, to quash it. It can only be availed for when the Court has already given an order or decision. The writ of certiorari can be granted for lack of jurisdiction, abuse of jurisdiction or excess of jurisdiction. It can also be granted in case principles of natural justice are violated or there is a prima facie error of law existing. The Court has held in Syed Yakoob v Radhakrishnan,[8] that issuing writ of certiorari is supervisory function of the High Court and it cannot act as an appellate authority in such situation. The Supreme Court cannot issue a writ of certiorari against the High Court, as the remedy for that is available under Article 136 of the Constitution.

The Prohibition writ is also known as “stay order” – since, through this writ the Court forbids the inferior courts from acting outside its powers and jurisdiction. However, the Supreme Court can only issue writ of prohibition when there is infringement of fundamental rights and only where the courts or tribunals are acting in violation of principles of natural justice. The objective of issuing the writ of prohibition is to prohibit administration’s arbitrary actions which lead to violation of an individual’s rights.

In Latin, Mandamus means “we command”, and this writ is granted to the lower courts or non-judicial authorities to make them do something that falls well within their scope of duty. This writ lies where the public officer is supposed to act in a manner but does not do so. However, this right cannot be availed as a right; it is the Court’s discretion. Where the petitioner accuses the public official of being in breach of its duty, the aggrieved needs to prove that when they asked for the enforcement of the duty, they were denied of it.[9] It cannot be issued when the duty is not mandatory, when it is not against the State official who does not ow public duty, and nor can it be granted to enforce any duty made in contracts.

Quo Warranto means “by what warrant” or “in what authority”, and this writ can be availed when the petitioner can prove to the Court that office in issue is public office and is being held without authority.[10] The writ of quo warranto, if claimed by the person, does not mean that he is entitled to it and it is the Court’s discretion to issue it.[11]

Now, the Courts have allowed for bona fide persons to approach the Supreme Court on behalf of the poor, disabled, unprivileged section of the society by the way of public interest litigation. However, any person who files a public interest litigation with “vested interests, improper motions or actuated by a desire to win notoriety or cheap popularity” is not entitled.[12] An individual who has approached the Supreme Court by the way of public interest litigation should have bona fide “sufficient interest”, on behalf of the disadvantaged group that cannot do it by themselves.[13] Even when the person is qualified to raise the issue, they must do full research and then approach the Court.[14]

When the action arises out of executive or legislature’s actions, Article 32 can be claimed for. It is enough for the petitioner to prove that the enacted law does not fall in the legislative list and also that it affects the fundamental right for which he is seeking help under Article 32. This provision is not a medium for getting declaratory suit; however, there is no need to approach to the High Court under Article and the petitioner can directly come to the Supreme Court. It is okay for the petitioner to not have a proper prayer; this cannot be a ground to dismiss the petition – the Court can go ahead and grant the correct relief. Even when there is reasonable apprehension of infringement of a guaranteed fundamental right, a petition can be filed under Article 32.

Endnotes


[1] Prem Chand Garg v Excise Commr, AIR 1963 SC 996.

[2] Constituent Assembly Debates, Vo. VII, 953.

[3] B. Krishna Bhat v Union of India, (1990) SCC (3) 65.

[4] Jagannath Baksh Singh v State of U.P., AIR 1962 SC 1563.

[5] Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802.

[6] R v Secy. Of State for Home Affairs, (1942) 1 KB 87.

[7] A.K. Gopalan v State of Madras, AIR 1950 SC 27.

[8] AIR 1964 SC 477.

[9] State of Bombay v Hospital Mazdoor Sabha, AIR 1960 SC 610.

[10] University of Mysore v C.D. Govinda Rao, AIR 1965 SC 491.

[11] Baij Nath Singh v State of U.P., AIR 1965 All 151.

[12] Ashok Kumar Pandey v. State of West Bengal AIR 2004 SC 1928, V. Ammaraja v The Secretary to the UOI.

[13] S.P. Gupta (n4), Bhandua Mukti Morcha v Union of India [1984] 3 SCC 161.

[14] S.P. Anand v. H.D. Deve Gowda 1996 (6) SCC 734.


Author Details: Harshita Fatesaria (O.P. Jindal Global University)

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