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‘Article 32 and its ever changing interpretation’

  • Category
    Polity
  • Published
    24th Nov, 2020

In a latest development, a Supreme Court Bench observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

Context

In a latest development, a Supreme Court Bench observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

Background

  • The observation came during the hearing of a petition seeking the release of journalist Siddique Kappan, who was arrested with three otherswhile on their way to Hathras, Uttar Pradesh, to report on an alleged gangrape and murder.
  • Kerala-based Kappan was arrested on 5 October when he was on his way to Hathras to report on the alleged gang rape and murderof a 20-year-old Dalit woman.
  • The police had initially arrested Kappan, along with three others, under Section 151 of the Code of Criminal Procedure (CrPC) on the suspicion that they may commit some cognisable offence. Later, they were also booked on charges of sedition and sections of the Unlawful Activities Prevention Act(UAPA).

Analysis

What is Article 32?

  • Article 32 is one of the fundamental rights listed in the Constitution that each citizen is entitled.
  • It 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.
  • 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, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”.
  • The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
  • The Article is included in Part III of the Constitution with other fundamental rights including to 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 guaranteed under Article 32 cannot be suspended unless provided for by the Constitution.

‘Heart’ and ‘Soul’ of the Constitution

  • During the Constituent Assembly debates in December 1948, a discussion on this fundamental right (in the draft, it is referred to as Article 25), Dr B R Ambedkar had said,

“If I was asked to name any particular Article in this Constitution as the most important — an Article without which this Constitution would be a nullity — I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it…” He said the rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended and hence it was “one of the greatest safeguards that can be provided for the safety and security of the individual”.

  • Others in the drafting committee also said that since it gives a person the right to approach the Supreme Court as a remedy if fundamental rights are violated, “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.

What is the Court’s observation on Article 32?

  • In the case of the journalist Siddique Kappan, the court asked why the petitioners could not go to the High Court.
  • It has sought responses from the Centre and the UP government.
  • In another case last week invoking Article 32, filed by a Nagpur-based man arrested in three casesfor alleged defamatory content against Maharashtra Chief Minister Uddhav Thackeray and others, the same Bench directed him to approach the High Court first.
  • Relief under Article 32 was also sought in a petition filed by Telugu poet Varavara Rao’s wife, P Hemalatha, against the conditions of his detention in jail since 2018.
    • The Supreme Court directed the Bombay High Court to expedite the hearingon a bail plea filed on medical grounds, pending since September.
    • It observed that once a competent court had taken cognisance, it was under the authority of that court to decide on the matter.
  • In another matter, the Bench of CJI Bobde, Justice A S Bopanna and Justice V Ramasubramanian had issued a contempt noticeto 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 and 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”.

Observations over the years

  • 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.
  • During the Emergency, in Additional District Magistrate, Jabalpur vs S S Shukla (1976), the Supreme Court had said that the citizen loses his right to approach the court under Article 32.

Writs

One of the most significant features of Article 32 is that the Supreme Court has the power to issue directions, orders or writs for enforcement of fundamental rights. Someone can seek justice through the five types of writs as provided by Article 32 of the Constitution. These are —

  • Habeas corpus:Considered to be among the most important writs for personal liberty, habeas corpus literally means to ‘produce the body‘. It is invoked to seek relief in cases where a person has been unlawfully detained. Individuals can file habeas corpus petitions if they believe they have been wrongfully imprisoned.
  • Mandamus:The writ of mandamus is issued by a higher court to a lower court or a government official or body, directing them to perform duties that they have refused to do.
  • Certiorari:A superior court issues a certiorari writ for re-examination of an action or decision by a lower court. It is invoked when a judgment has been delivered in violation of principles of natural justice or in opposition to the procedure established by law.
  • Prohibition:The writ of prohibition is to stop a lower court from going ahead with certain proceedings to ensure that it does not exceed its jurisdiction.
  • Quo warranto:This writ is issued to prevent people from assuming positions in public office when she or he is not entitled to it.

Where to approach for violation of FRs? SC or HC?

  • 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.
  • When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32.
  • Article 226, however, is not a fundamental right like Article 32.

How Article 32 is different from Article 226?

  • Article 226 is enshrined under Part V Chapter V of the Constitution. It empowers the High Courts to issue certain writs.
  • Article 226 gives discretionary power to the High courts to issue direction, order, writs including the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari
  • The scope of Article 226 is much wide than Article 32.
  • It not only gives the power to issue direction, order or writs not enforce fundamental rights but also for the enforcement of other rights too.
  • It also talks about the interim order for writs and also states the mechanism of how interim order will be disposed of by the High courts. 

Article 32

Article 226

It is for enforcement of  Fundamental Rights only

It is for enforcement of Fundamental Rights as well as other legal Rights

Power of Supreme court to issue writs

Power of High courts to issue writs

Mandatory power to issue the writ is Mandatory

Discretionary power to issue writs

Scope is narrow

Scope is Wide

It is fundamental Right

It is not a Fundamental Right

Article 32 is suspended during the period of Emergency

It cannot be suspended during emergency

Territorial Jurisdiction is wide

Territorial Jurisdiction is narrower than the Supreme Court.

Closure

Article 32 is a fundamental right which empowers the Supreme court to issue direction, order, and writs.  It is known as 'the heart and soul of the Constitution'. It ensures that the rights of the Indian citizens are protected and provisions of the Constitution of India are upheld. 

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