Article 32: Recent buzz around the ‘heart’ and ‘soul’ of the constitution

Introduction:

The Constitution of India which came into force on 26^th January, 1950 envisages supreme laws governing the Republic of India. It is a vast document and has been amended from time to time in line with the changing demonographies of the country. Part 3 of the Constitution contains fundamental rights that are necessary to uphold the spirit of democracy by laying down the foundation necessary to govern the nation. One such fundamental right which has been referred to as ‘the heart and soul of the constitution’ by Dr. B.R. Ambedkar is the ‘right to constitutional remedies’ mentioned under Article 32 of the Constitution. It grants the people of the country the right to initiate appropriate proceedings in the Supreme Court when their fundamental rights have been violated.

Article 32

Article 32 reads as under-

Remedies for enforcement of rights conferred by this Part[1]:

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
2. 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.
3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

The 5 writs as per Article 32(2) of the constitution can be issued by the Supreme court and can also be issued by the High court under Article 226 of the constitution.

1. Habeas Corpus: the term Habeas Corpus translates to ‘have the body of’ and empowers the citizens of India to safeguard themselves from unlawful detention. The writ of Habeas Corpus comes into play when a person has been detained and kept under police or private custody without any lawful justification. The writ confers right on the person so detained to be produced before a court of law and if the judge feels that the detention was wrongful then the person will be set free. It is a matter of basic human right that a person should not be detained without just reasons and if so detained he should have the power to present his case before the court to protect his body and freedom from being sabotaged.
2. Mandamus: the term mandamus stands for ‘we command’ and the writ of mandamus is issued when a public official, inferior court, government, tribunal or public authority either fails or refuses to perform their duty and are therefore ordered by the court to perform the same. The condition for issuance of this writ being that the duty in question which is sought to be performed should be mandatory in nature. The writ of mandamus cannot be issued against private individuals or organizations, president, governor of state, chief justice of Supreme Court and High Courts.
3. Certiorari: the word certiorari means ‘to be informed’ and the writ of certiorari is issued by a court of higher authority to a lower court or tribunal instructing them to either transfer a matter pending before them or squash an order already issued by them. It is issued when either excess or lack of jurisdiction is exercised or an error of law is committed. The writ not only identifies the error but also provides a remedy to correct it.
4. Prohibition: the word prohibition means to stop or to forbid something and the writ of prohibition is issued by the Supreme Court or High Court directing inactivity to an inferior court or a quasi-judicial body with respect to a jurisdiction which they do not possess.
5. Quo warranto: the term quo warranto translates to by what warrant or authority and the writ of quo warranto is issued to a person holding a public office to which he is not entitled seeking an explanation by what authority he is holding the office. The person concerned will have to vacate the office if it is found that he has usurped public office.

Recent observations by Supreme Court

On 5^th October, 2020, Journalist Siddique Kappan with three other people was arrested in Uttar Pradesh when they were going to Hathras to report an alleged gangrape and murder of a Dalit woman. Honorable Chief Justice of India SA Bobde was hearing a petition seeking the release of the aforesaid men under Article 32 of the Constitution and questioned them why did they not approach the High Court first. Justice Bobde further observed that an attempt is being made to ‘discourage’ individuals from filing petitions under Article 32. A similar observation was made by the Supreme Court earlier also when a resident of Nagpur district had tweeted certain remarks which were alleged to be derogatory against the Chief Minister of Maharashtra Mr. Uddhav Thackrey. The court in this case had observed that ‘even high courts can uphold fundamental rights’.

In the case of Additional District Magistrate, Jabalpur vs. Shivkant Shukla[2] the court held that the right granted under Article 32 are not maintainable during an emergency.

In the case of Anita Khushwa v. Pushpa Sadan, the court held that that (legal) cases pending for hearing in Jammu & Kashmir courts can be transferred to any place in India.[3]

In Romesh Thappar vs State of Madras, the Supreme Court observed that Article 32 provides a “guaranteed” (SC cannot refuse) remedy for the enforcement of fundamental rights.[4]

In Union of India vs Paul Manickam, the court held that In order to invoke jurisdiction under Article 32 of the Constitution to approach this Court directly, it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court. Unless satisfactory reasons are indicated in this regard filing of petition on such matters, directly under Article 32 of the Constitution is to be discouraged.[5]

Conclusion

A sudden surge has been observed in petitions being filed under Article 32 and the Supreme Court has on several instances transferred cases to the High Court as under Article 226 the citizens of India can even approach the High Court to seek constitutional remedies for upholding their fundamental rights in case they are violated. The Supreme Court of India is overburdened with cases and if the people start approaching the Supreme Court directly despite having a remedy to approach the High Court first the pile of cases is only going to increase further. The parties if not satisfied with the judgment rendered by the High Court can always file an appeal against the said order before the Supreme Court.

References:

[1] The Constitution Of India, 1949, Acts of Parliament, 1949 (India)

[2] ADM Jabalpur v. Shivkant Shukla, 1976 SCR 172

[3] Cases of J&K court can be transferred to any part of India: SC, The Milli Gazette — Indian Muslims Leading News Source, https://www.milligazette.com/news/1-community-news/14720-cases-of-j-k-court-can-be-transferred-to-any-part-of-india-sc/ (last visited Dec 15, 2020).

[4] Posted by IASbaba & IASbaba, Supreme Court interpretation of Article 32 over the years IASbaba (2020), https://iasbaba.com/2020/11/supreme-court-interpretation-of-article-32-over-the-years/ (last visited Dec 15, 2020).

[5] Union of India vs Paul Manickam, AIR 2003 SC 4622