What is Article 32 of Indian Constitution ?
- How has the Supreme Court interpreted Article 32 over the years?
WHY IN NEWS:
- A Supreme Court Bench headed by Chief Justice of India S A Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.
- The observation came during the hearing of a petition seeking the release of journalist Siddique Kappan, who was arrested with three others while on their way to Hathras, Uttar Pradesh
SYLLABUS COVERED: GS 2 : Fundamental Rights
For PRELIMS it is important to understand all the writs and who issues them ! Meanwhile we have mentioned a few examples to substantiate the same .
For MAINS go through the relevant cases and the evolution of Article 32. Let us dive in !
ROLE OF JUDICIARY
ROLE OF JUDICIARY IN DEMOCRACY
- Constitution envisages a strong, independent, impartial and well-organized judiciary
- Prevents the arbitrary use of governmental authority
- Safeguards the rights and liberties of citizens.
- Guardian of the constitution
The very soul of the constitution and the very heart of it.
- Article 32( 1) : Guarantee to remedy
- Article 32(2) : Power of supreme court to issue writs
- Article 32(3) : Power of parliament to confer the power to issue writs to other courts
- Article32(4) : Suspension of Fundamental Rights.
WHAT IS ARTICLE 32?
- It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
- Article 32 deals with the ‘Right to Constitutional Remedies’.
- 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
- The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
- Article 32 affirms the right to move the Supreme Court if a fundamental right is violated.
True Peace Is Not Merely The Absence Of War, It Is The Presence Of Justice -JANE ADDAMS
- The essence of justice lies in Rule of law i.e. supremacy of law
- Ensured by Supreme Court, High Court and lower courts
THE VERY SOUL OF THE INDIAN CONSTITUTION
During the Constituent Assembly debates in December 1948,Dr B R Ambedkar had said:
- The Article is included in Part III of the Constitution with other fundamental rights .
- These include : 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.
- The rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended.
- Others in the drafting committee also said , “it is a right fundamental to all the fundamental rights” guaranteed under the Constitution.
- The Constituent Assembly debated whether fundamental rights including this one could be suspended or limited during an Emergency.
- The Article cannot be suspended except during the period of Emergency.
- Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:
- It is in the nature of an order calling upon the person who has detained another to produce the latter before the court.
- To know on what ground he has been detained
- To set him free if there is no legal justification for the imprisonment
SOURCES : IE | EXAMPLE : WRITS
INCREASING SCOPE OF HABEAS CORPUS
- KANU SANYAL V. DISTRICT MAGISTRATE : The court may examine the legality of the detention without requiring the person detained to be produced before it .
- SHEELA BARSE V. STATE OF MAHARASHTRA : If the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf.
- NILABATI BEHERA V. STATE OF ORISSA : The petitioner was awarded compensation of Rs. 1, 50, 000
- Mandamus is used to directing public officials, governments, courts to perform a statutory duty.
GROUNDS FOR WRIT OF MANDAMUS
The Writ can granted against a public authority if
- Acted against the law
- Exceeded his limits of power
- Acted with mala fides
- Did not apply his mind
- Abused his discretionary powers
- Did not take into account relevant consideration
- Has taken into account irrelevant consideration
- HEMENDRA V GAUHATI UNIVERSITY : Mandamus was issued to direct a University to announce that the petitioner has passed where, University had refused so to declare the pass marks.
- BARADA KANTA V STATE OF WEST BENGAL : Writ of Mandamus cannot be issued against an individual person or any private organization because they are not entrusted with a public duty
- Quo warranto is to show by what warrant is a person holding public office.
- Issued to restrain a person from holding a public office.
- Public office created by a statue
- Person to be appointed by a statue or statutory instrument.
- It is to forbid or to stop called as “Stay Order”
- Issued in cases where is excess of Jurisdiction and where there is absence of Jurisdiction.
- When the proceedings are pending in the court.
- Issued by both SC and HC’s to any inferior court or Quasi-Judicial Body but not against legislative or administrative body
- It means re-examination of an order given by judicial, quasi-judicial or administrative authorities.
- Alternatively, It means “To be Certified”
- Both preventive and curative.
ARTICLE 226 vs ARTICLE 32
- 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.
- Article 226, however, is not a fundamental right like Article 32.
OBSERVATIONS OVER THE YEARS
- ROMESH THAPPAR VS STATE OF MADRAS (1950) : the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights.
- JABALPUR VS S S SHUKLA (1976) : During the Emergency, in Additional District Magistrate, the Supreme Court had said that the citizen loses his right to approach the court under Article 32.
- It cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights.
- 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.
Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it wherever found, against the wrong. -THEODORE ROOSEVELT
SOURCES: THE HINDU | What is Article 32 of Indian Constitution ?