Article 32 of the Indian Constitution: The Guardian of Fundamental Rights

Introduction

Welcome to the official blog of the Law Offices of Kr. Vivek Tanwar Advocate and Associates, where we are dedicated to providing litigation support services for matters related to the Constitution. In today’s blog post, we aim to shed light on the prevailing issues surrounding the Constitution, the legal framework in place for their protection, and the steps we can take as a society to combat these acts. Join us as we explore this critical subject and empower you with the knowledge to protect your rights and safety.

Article 32 of the Indian Constitution is hailed as one of the most significant provisions, enshrining the right to constitutional remedies for the protection of fundamental rights. It serves as the backbone of the Indian judiciary, ensuring that citizens have access to justice and can seek redressal against violations of their fundamental rights. Often referred to as the “Right to Constitutional Remedies,” Article 32 stands as a powerful tool in safeguarding the democratic ethos of India.

Historical Context

The Indian Constitution, which came into effect on January 26, 1950, was a visionary document that laid the foundation for a sovereign, socialist, secular, and democratic republic. Dr B.R. Ambedkar, the chairman of the drafting committee, played a pivotal role in crafting Article 32, recognizing its significance as a key protection for citizens’ fundamental rights.

Understanding Article 32

Article 32 of the Indian Constitution empowers individuals to approach the Supreme Court of India directly if they believe their fundamental rights have been violated. The right to move the Supreme Court for the enforcement of these rights is considered sacrosanct, and the court is mandated to issue appropriate writs, orders, or directions for the protection of those rights.

Fundamental Rights and Their Significance

The Indian Constitution guarantees its citizens certain fundamental rights, such as the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, and the right to constitutional remedies. These rights are considered fundamental because they are essential for the well-being and dignity of every individual and serve as the bedrock of a just and fair society.

Constitutional Philosophy Of Writs

The constitutional philosophy of writs grants individuals the right to seek judicial remedy when their fundamental rights are violated. This remedy is available through Article 32 for the Supreme Court and Article 226 for High Courts. Dr B.R. Ambedkar considered the right to a constitutional remedy as the essence of the Constitution. The Supreme Court is viewed as the protector and guarantor of fundamental rights, with a responsibility to entertain applications seeking protection.

Justice Gajendragadkar In the case Prem Chand Garg v Excise Commissioner said “Court has to play the role of a ‘sentinel on the qui vive’ and it must always regard it as its solemn duty to protect the said Fundamental Rights ‘zealously and vigilantly’. The judgment in the case of Bandhua Mukti Morcha vs Union Of India emphasized that the Supreme Court has the power to issue directions, orders, or writs to provide judicial redress to citizens.

The Nature And Scope Of Article 32

The nature and scope of Article 32, which is a Fundamental Right itself, differ from Article 226. Article 32 grants the Supreme Court mandatory jurisdiction to address violations of fundamental rights. On the other hand, High Courts have discretionary jurisdiction under Article 226 for various purposes.

Article 32 is unique as it is solely concerned with fundamental rights and is not included in the articles defining the Supreme Court’s General Jurisdiction. It means that only fundamental rights cases can be brought before the Supreme Court using this provision. An interesting question arises whether writs can be used against entities transitioning from private to public roles. In the case of the Board of Control For Cricket vs Cricket Association Of Bihar, the Supreme Court ruled that organizations like BCCI, performing public functions, can be subject to writs when their actions become inherently public in nature.

Writ Jurisdiction: The Supreme Court, in exercising its powers under Article 32, can issue five types of writs:

1. Habeas Corpus: This writ ensures the production of a detained person before the court, verifying the legality of their detention. It is a crucial instrument in preventing unlawful arrests or detentions. The Writ of Habeas Corpus is issued by courts to release individuals detained illegally, commanding the presentation of the detained person and requiring valid grounds for detention. It can be filed by the detainee, family members, or even strangers, and can be taken up by the court in the public interest. However, it cannot be successively made to different judges of the same court Landmark Cases:
   • In the ADM Jabalpur v. Shivakant Shukla case, the right to not be unlawfully detained was held to be suspendable during emergencies.
   • In Kanu Sanyal v. District Magistrate, the Supreme Court ruled that it can examine the legality of detention without the detained person being produced.
   • Sheela Barse v. State of Maharashtra saw the Supreme Court relaxing the doctrine of locus standi, allowing prayers on behalf of detainees.
   • In Nilabati Behera v. State of Orissa, the Supreme Court applied compensatory jurisprudence, awarding Rs. 1,50,000 as compensation to the petitioner.
   • In Bhim Singh vs. State of Jammu and Kashmir, Rudul Shah v. State of Bihar, and Sebastian Hongray v. UOI, the Supreme Court held that violation of fundamental rights requires compensation in the form of exemplary costs.
2. Mandamus: This writ commands a public official, a lower court, or a tribunal to perform its official duties correctly. It is used when there is a failure of duty or an abuse of power. The Writ of Mandamus, meaning ‘command,’ is issued by a superior court to ensure the performance of mandatory duties by lower courts or government officers. It can also apply to other administrative authorities like Inferior Tribunals or Corporations. The writ can be issued if certain grounds are met, including the recognition of the petitioner’s right by law, infringement of that right, and the absence of an alternative remedy. However, the writ won’t be issued for anticipatory injury, and there are cases when the courts can refuse to grant it, such as when the right has lapsed or the duty has already been fulfilled. Additionally, the writ cannot be granted against the President or Governor of a State, nor against private entities except in cases involving the State. Landmark Cases:
   • The Supreme Court, in the cases of Praga Tools Corporation v. C.V. Imanual and Sohanlal v. Union of India, established that a mandamus can be issued against a private individual if they collude with a public authority.
   • In the case of Rashid Ahmad v. Municipal Board, it was ruled that having an alternative remedy cannot completely bar the issuance of a writ.
   • In S.P. Gupta v. Union of India, the court held that a writ of Mandamus cannot be issued against the President, and similarly, in C.G. Govindan v. State of Gujarat, it was refused against the Governor.
3. Prohibition: This writ is issued by a higher court to a lower court or tribunal, preventing them from exceeding their jurisdiction or acting beyond the scope of their authority. The writ of prohibition, as old as common law, forbids or prevents an inferior court, tribunal, or quasi-judicial body from deciding a case due to lack of jurisdiction. It is an extraordinary remedy issued by a Superior Court during ongoing proceedings. Over time, its rigidity has eased, and it may also be issued based on natural justice grounds against anyone. The writ can be issued if the lower court exceeds its jurisdiction, acts against natural justice, or if there is an unconstitutionality of a statute or violation of fundamental rights. Landmark Cases:
   • In the East India Commercial Co. Ltd v. Collector of Customs case, a writ was issued, directing an inferior tribunal to refrain from adjudicating as the proceedings exceeded its jurisdiction.
   • In the case of Brij Khandelwal v. India (1975), the Delhi High Court declined to issue a prohibition against the Central Government’s involvement in a boundary dispute with Sri Lanka, asserting that the government can perform executive and administrative duties without any legal impediment.
   • In S. Govind Menon v. Union of India (1967), it was established that a writ of prohibition can be issued in both cases of excess jurisdiction and lack of jurisdiction.
   • In Hari Vishnu v. Syed Ahmed Ishaque (1955), a distinction between certiorari and prohibition writs was set, clarifying that the writ of prohibition can only be filed during the ongoing proceedings.
4. Certiorari: Certiorari, meaning ‘to certify,’ is a correct and judicial order issued by the Supreme Court to an inferior court, quasi-judicial, or administrative body. It transfers a case to the Court of Records for inspection to determine its legality and validity and check for any contravention of the law. The writ serves both preventive and curative purposes. To issue the writ, certain conditions must be met, such as the body or person having legal authority, affecting people’s rights, and acting judicially. Grounds for the writ include errors, lack, excess, or abuse of jurisdiction, as well as apparent errors of law or violations of natural justice principles. This writ allows the Supreme Court to quash a decision or order of a lower court or tribunal if it is found to be illegal or without jurisdiction. Landmark Cases:
   • In Naresh S. Mirajkar v. State of Maharashtra, the High Court ruled that judicial orders can be corrected using the writ of certiorari, but this writ is not applicable against the High Court itself.
   • In T.C. Basappa v. T. Nagappa & Anr, a constitutional bench held that a writ of certiorari can be granted when a court exceeds its jurisdiction or acts without jurisdiction.
   • In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court clarified the meaning and scope of the writ of certiorari. It stated that certiorari is available against inferior courts and tribunals but not against equal or higher courts.
5. Quo Warranto: Quo Warranto, meaning ‘by what authority,’ is a writ used to question the legality of a person holding a public office and their authority. It reviews the actions of administrative authorities appointed to public office. If the office holder is found to lack a valid title, the writ is issued to remove them. However, it also protects those rightfully holding a public office from being deprived of their position. This writ can be filed by someone who is not an aggrieved person. Conditions for its issuance include the office being wrongfully assumed, created by statute or the constitution, having public duties, and a permanent term not terminable at someone else’s pleasure. The person against whom the writ is sought must be in possession of the office. This writ is issued to inquire into the legality of a person holding a public office and to question the authority by which they hold the said office. Landmark Cases:
   • In Niranjan Kumar Goenka v. The University of Bihar, Muzaffarpur, the court noted that the Writ of Quo Warranto cannot be issued against a person who does not hold a public office.
   • In the case of Jamalpur Arya Samaj Sabha v. Dr D Rama, an application for the Writ of Quo Warranto was rejected as it did not pertain to a public office.
   • In H.S. Verma v. T.N. Singh, the writ of Quo Warranto was declined, and it was found that the Chief Minister’s right to appoint a non-member for six months was valid under Article 164(4).

When Supreme Court can refuse a remedy?

The right to move the Supreme Court under Article 32 is a Fundamental Right, guaranteeing the protection of fundamental rights. However, the Supreme Court may refuse to grant the remedy under certain conditions:

1. Res Judicata: The principle of Res Judicata applies to writ petitions filed under Article 32, except for Habeas Corpus. However, the same Habeas Corpus petition cannot be filed repeatedly based on the same facts.
2. Inordinate Delay: The Court may deny relief if there is an unreasonable delay in filing the petition without valid explanations.
3. Malicious Petition: A petition found to be malicious can be liable for dismissal.
4. Misrepresentation or Suppression of Material Facts: If the petitioner is found to have misrepresented or suppressed material facts, the petition may be dismissed.
5. Existence of Adequate Alternative Remedy: While an alternate remedy is not an absolute rule, there can be valid exceptions to seeking relief under Article 32.

Public Interest Litigation Under Article 32

Under Article 32, Public Interest Litigation (PIL) allows citizens to file cases in the Supreme Court for the welfare of the public. The court can also take up PIL cases on its own. Unlike regular cases, PILs don’t require personal rights violations. They empower the public to seek remedies through judicial activism. To be considered valid, a PIL must have substantial facts and grounds, avoiding frivolous claims. The Rule of Locus Standi is moderately applied, provided the petitioner acts in good faith and seeks larger public interest rather than personal gain, political motives, or mala fide intentions.

Comparison of Article 32 And Article 226

Grounds	Article 32	Article 226
Right	Fundamental right	Constitutional right
Suspension	Can be suspended during an emergency under Article 359	Cannot be suspended, even during an emergency
Scope	Limited to the enforcement of fundamental rights	Broader scope, includes enforcement of both fundamental and legal rights
Territorial Jurisdiction	Pan-India jurisdiction	High Court’s jurisdiction within its respective territory
Discretionary Power	Supreme Court cannot refuse rights and remedies under Article 32	High Court has discretionary power to issue writs
Public Interest Litigation (PIL)	Available in the Supreme Court under Article 32	Available in the High Court under Article 226
Locus Standi	No strict application	Moderately applied when the petitioner acts bona fide and seeks larger public interest

Limitations and Exceptions

While Article 32 is a powerful provision, it is not absolute. There are certain limitations and exceptions to its application. One notable limitation is that the right to constitutional remedies is only available against state actions and not private individuals. Moreover, if an alternative remedy exists, such as approaching a lower court, then the Supreme Court may refuse to entertain a petition under Article 32.

Significance and Impact

Article 32 plays a crucial role in ensuring that citizens can approach the highest court of the land for the protection of their fundamental rights. By granting this right, the framers of the Indian Constitution intended to establish an effective system to counteract any potential government excesses and safeguard individual liberties.

Over the years, Article 32 has been invoked in numerous landmark cases to protect citizens’ rights, uphold the rule of law, and ensure the democratic principles of India are upheld. It has acted as a beacon of hope for the oppressed, the marginalized, and those whose rights were trampled upon.

Conclusion

Article 32 of the Indian Constitution exemplifies the commitment of the framers to create a just and equitable society. It is a testament to the foundational values of India as a democratic nation, where every citizen’s rights are protected, and justice is accessible to all. This provision stands as a crucial pillar of the Indian judiciary, upholding the spirit of the Constitution and preserving the democratic fabric of the nation.

We are a law firm in the name and style of Law Offices of Kr. Vivek Tanwar Advocate and Associates at Gurugram and Rewari. We are providing litigation support services for matters related to the Indian Constitution Of India.