Article 32

GS 2 Indian Polity Indian Constitution— significant provisions and basic structure.

Introduction 

Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.

Contemporary Issue:

     Recently 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.

Case:

  • Kerala-based Siddique Kappan was arrested on October when he was on his way to Hathras to report on the alleged gang rape and murder of a 20-year-old Dalit woman.
  • Initially, he along with 3 others was arrested under Section 151 of the Code of Criminal Procedure (CrPC), later he was booked on charges of sedition and sections of the Unlawful Activities Prevention Act (UAPA).
  • A habeas corpus petition seeking release of Siddique Kappan was filed in the Supreme Court.
  • In an another case, Article 32 petition filed on behalf of Nagpur resident Sameet Thakkar (arrested for allegedly making objectionable comments against Maharashtra CM) was also declined.

                 As per Faizan Mustafa, vice chancellor of the NALSAR University, ideally, cases must first go to the high court. However, SC should also be consistent in the matters, then only the desired results can be achieved.

Decisions in the similar cases:

  • In a recent matter, the Bench of CJI, had issued a contempt notice to the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice.
  • The court had then said that 
    • the right to approach the Supreme Court under Article 32 is itself a fundamental right .
    • that “there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, 
      • it would amount to a serious and direct interference in the administration of justice in the country”.
    • Even as the Supreme Court underlines the powers of the high courts, it has in the past transferred cases to itself from the high courts.

Transfer of Cases:

  • Even though SC underlines the powers of the high courts, there are past examples of transferring cases Suo Moto, to itself from the high courts.
    • Most recently, the Supreme Court transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court.
  • In 2018, the SC had transferred the case seeking probe into the death of judge B H Loya from the Bombay High Court to itself.

When such transfers take place petitioners lose a stage of appeal that would otherwise have been available had the High Court heard and decided the case.

Fundamental rights under Article 32:

  • Article 32 of the constitution is a Fundamental Right that  falls under Part III 
  • It provides individuals, seeking enforcement of other fundamental rights, the right to approach the Supreme Court directly.
  • Under Article 32 the Supreme Court have power to issue directions or orders or writs, including writs in the nature of 
    • habeas corpus
    • mandamus
    • prohibition
    • quo warranto 
    • certiorari.
  • The right guaranteed by this Article ‘shall not be suspended except as otherwise provided for by this Constitution’.
  • Under Article 226 of the Constitution, similar powers have been conferred on high courts, to enforce the fundamental rights of citizens. 
    • However, article 226 is not a fundamental right like Article 32.
  • The two provisions are not mutually exclusive 
  • Allow a citizen to either approach the high court that has jurisdiction over the case or the Supreme Court.
  • Both the High Courts and Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:
    • Habeas corpus: It is issued against the illegal detentions and wrongful arrests 
      • to ensure personal liberty 
      • considered as one of the most important writs for personal liberty.
    • Mandamus:It is issued against public officials, governments, courts to perform a statutory duty.
    • Certiorari:Issued for re-examination of an order or decision by judicial, quasi-judicial or administrative authorities.
    • Prohibition: Issued for directing judicial or quasi-judicial authorities 
      • to stop from going ahead with certain proceedings 
      • to ensure that it does not exceed its jurisdiction.
    • Quo warranto:It is issued to prevent people from assuming positions in public office when she or he is not entitled to it.

Previous judgments related to article 32:

  • In Romesh Thappar vs State of Madras (1950), the Supreme Court observed 
    • that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights
    • “This Court is thus constituted the protector and guarantor of fundamental rights and it cannot, 
    • consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,” the court observed.
  • In Additional District Magistrate, Jabalpur vs S S Shukla (1976)
    • During the Emergency, the Supreme Court had ruled that the right to constitutional remedies under Article 32 would remain suspended during a national emergency.
  • 44th Constitutional amendment provided that president could issue orders suspending the right to move any court for the enforcement of fundamental rights, under Article 32, during a national emergency, with the exception of Article 20 and 21.

Conclusion 

      Constitutional experts say that it is eventually at 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.       
There is a need to bring in more clarity by judiciary on the matter of article 32 so that people do not lose their hope in the justice system as the ultimate remedy for the violation of their rights.

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