When the law becomes a weapon of abuse rather than balancing and stabilising, democracy is in danger. The declaration of fundamental right is meaningless unless there is effective machinery for the enforcement of the rights. It is remedy which makes the right real. One of the common defining principles Ubi Jus, Ibi Remedium which means where there is a right there is a remedy. Similarly, it can be said that if there is no remedy there is no right. Article 32 shares out the Right to Constitutional Remedies and provides that every individual has right for moving to Supreme Court to acquire their fundamental rights safe. The constitutional remedies are available to every citizen of India along with a writ petition which is a formal request made to a court for the enforcement of constitutional right. Under Article 32, the parliament also can ask any other court to exercise the power of the Supreme Court, if it is within its jurisdiction. Without the provision that there is some constitutional amendment, the rights guaranteed by this article cannot be suspended. The main purpose of this article is to assure rights that are guaranteed to people for enforcement of basic rights as law offers the desired right to people directly to Supreme Court without any hurdles, by appropriate proceedings, without going to lower courts at first for the enforcement of the rights conferred in Part III of the Constitution.
ARTICLE 32: HEART AND SOUL OF THE CONSTITUTION
As said by Dr. B.R. Ambedkar that without this article the Constitution would be a nullity, saying it is the soul and the heart of the constitution. When article 32 was introduced, there was a debate in the Constituent Assembly which is at present known as NITI Aayog, whether article 32 can be suspended or limited during the period of emergency, and then it was decided that the article cannot be suspended except during the period of emergency. Thus, this article is the protector of the rights of the citizens of India and is regarded as the heart and soul of the constitution.[1]
AMBIT AND POWER OF ARTICLE 32
Article 32 of the Indian Constitution is considered one the most important articles when it comes to the enforcement of the rights of an individual. It is itself a fundamental right. Through this every individual can seek justice in a court when they feel that their rights have been violated and the Supreme Court has the power to execute the rights. Article 226 also empowers all the High Courts to issue the writs for the enforcement of fundamental rights. The writs which the Supreme Court can issue in Art.32 include – Habeas corpus, Mandamus, Prohibition, Quo-warranto and Certiorari. Here, the court is not bound to issue these writs strictly as these writs were issued in English law. The power of Supreme Court of issuing writs is to give more liberty for doing justice and similar power is being displayed by the High Courts but the High Courts has power to issue writs not only for the enforcement of fundamental rights but also for other purposes.
NATURE OF WRIT JURISDICTION UNDER ARTICLE 32
The writ jurisdiction provided under article 32 is discretionary. There are five important factors for guiding this discretion. Factors guiding the discretion are-
Locus standi à to appear before the court
Alternative relief à alternative remedies sought in a lawsuit
Res Judicata à the case that has been adjudicated by the court
Questions of the fact à an issue of fact not law
Laches àan equitable defence of the defendant where the plaintiff is barred from claim due to undue delay
WRITS
- Habeas Corpus: It is a Latin term that protects against unlawful and indefinite imprisonment which means show me the body i.e. the judge or court should have any person who is being detained and brought forward so that the legality of that person’s detention can be assessed. Any prisoner or any other person acting on his behalf may file petition, the court or a judge may file for a writ petition. It can be issued when the person is detained and not produced before the magistrate within 24 hours without any violation of law. The exception of Habeas Corpus falls where the petition has been ejected by High Court, a fresh petition can be filed to Supreme Court under Article 32 of the Constitution of India.
IMPORTANT JUDGEMENTS
In case of A.D.M. Jabalpur VS Shivkant Shukla, court held that a person’s right cannot be unlawfully detained and can be suspended as said by Justice P.N. Bhagwati where art. 14, art.19 and art.21 was taken away. In another case A.K.Gopalan VS State of Madras,1950 , court held that the detention under the Preventive Detention Act was constitutional and justified as it was argued previously that the detention has violated art.19 and art.21 of the Indian Constitution. Again in case of Rudul Sha VS State of Bihar(1983), a writ petition of habeas corpus by PIL was filed as the petitioner was not released from imprisonment for another 14 years. It was later on held that extra 14 years of imprisonment was unjustified and therefore he received compensation and relief from court.[2]
- Mandamus: It means ‘We Command’. It is a judicial remedy in the form of an order from a superior court to any government, subordinate court, corporation or public authority to do some specific act which the body is obliged under law to do. It must be filed by a person in good faith and has the legal right to do so. This writ can’t be issued against the President of India and Governor of state, working Chief Justice, enforce some kind of private contract and if the duty in question is discretionary and not mandatory.
IMPORTANT JUDGEMENTS
In case of Bombay Municipality VS Advance Builders AIR 1972, it was held that mandamus can be issued where an authority vested with a power improperly refuses to exercise it and directed the municipality to implement a planning scheme. Another case in Birendra Kumar VS India AIR 1983 where High Court directed the telephone authorities to restore the connection within a week as the telephone of the applicant was wrongfully disconnected, in spite of paying his dues regularly.[3]
- Quo Warranto: It is a Latin term which means by what authority or warrants. It is a common remedy which is used to challenge a person’s right to hold the public a corporate office. A solicitor general or public prosecutor upon the order of the President can file a writ of quo-warranto.
IMPORTANT JUDGEMENTS In case of Amarendra Chandra VS Narendra Kumar Basu 1951, court held that writ of quo-warranto would not be applicable to an office of a private nature. Jamalpur Arya Samaj VS Dr. D Ram & Ors, the Patna High Court held that this writ can be issued against a person who holds a public office wrongfully and not applicable in case of a private office in which he Court denied issuing the writ.[4]
- Prohibition: It means to forbid or to stop. It is issued by a higher court to a lower court or tribunal directing it not to proceed with a case which does not fall under its jurisdiction. It can be issued against a judicial and quasi-judicial body and not against a legislative or administrative body. A writ of prohibition is normally issued when inferior court or tribunal- (a) proceeds to act without jurisdiction or in excess of jurisdiction (b) proceeds to act in violation of rules of natural justice (c) proceeds to act under a law which is itself ultra-vires or unconstitutional (d) proceeds to act in contravention of fundamental right.
IMPORTANT JUDGEMENTS
In case of Subramaniam Chettiar VS Joint Commercial Tax Officer, court held that the issue of unit of prohibition can only be done when the petitioner can prove that any government official has a duty towards him which falls under his jurisdiction but failed in deploying it. In another case of Brij Khandelwal VS India AIR 1975, Delhi High Court refused to issue prohibition to the central government to prevent it from entering into an agreement with Sri Lanka regarding a boundary dispute. Again Subhash Chandra VS India AIR 1973, court held that a court martial constituted under the Army Act has been held subject to prohibition.[5]
- Certiorari: The literal meaning is to be informed which means to certify. It is issued by a higher court to lower courts ordering them either to transfer a case pending with them or quash their order in a case. The grounds on which the writ of certiorari can be issued are- (a) without jurisdiction or (b) excess of jurisdiction or (c) error of jurisdiction.
IMPORTANT JUDGEMENTS
T.C.Basappa.VS T.Nagappa & Anr, it was held that this writ can be issued when a court has either acted without its jurisdiction or has acted beyond its jurisdiction. In another case of Surya Dev Rai VS Ram Chander Rai & Anr., the apex court held that writ of certiorari can be issued against an inferior court only and not against any higher court.[6]
ARTICLE 32 IS AN INTEGRAL AND IMPORTANT PART OF BASIC STRUCTURE OF THE CONSTITUTION
In this landmark case of Skill Lotto Solutions Pvt Ltd VS Union Of India & ors, in the year of 2022, the three rejoiced judges of the Supreme Court effectively gave a lauded judgement of a Writ Petition (Civil) and held that Article 32 plays a vital role in the integral part of the basic structure of the constitution and is meant to ensure observance of rule of law.
As Article 32 enforces fundamental rights and no citizen can be denied to apply for a writ petition, so in this case the petitioner filed a Writ Petition under Article 32 challenging the constitutionality of the levy of GST on lotteries.
The petitioner was an authorized agent for sale and distribution of lotteries organised by State of Punjab, who filed this Writ Petition disputing the truth of the definition of Goods under Section 2 (52) of Central Goods and Services Tax Act, 2017 and important notifications to the extent it levies tax on lotteries where the petitioner seeks declaration that the levy of tax on lottery is discriminatory and violates Articles 14, 19(1)(g), 301, 304 of Indian Constitution. The notable judgement given by Apex Court is the strongest weapon which provides the enforcement of the fundamental rights and this alone explains why Dr BR Ambedkar is known as the father of the Constitution and described Article 32 as the heart and soul of the Constitution. [7]
RELATING ARTICLE 32 WITH ARTICLE 226
Article 226 includes the power of High Court to issue orders, directions and writs which are enshrined in Part V of the Constitution of India. Both articles play a vital role in the Indian Constitution.
- Article 32 is a fundamental right and Article 226 is a constitutional right.
- If president declares an emergency then Article 32 will be suspended but Article 226 cannot be suspended even at that time.
- The scope of article 32 is narrower than article 226 because article 32 is applicable only in case of violation of fundamental right and article 226 is applicable not only in violation of fundamental right but also of a legal right.
- Article 32, Supreme Court has broader territorial jurisdiction as it empowers to issue writ all over India and Article 226, High courts have narrower territorial jurisdiction as it empowers to issue a writ in its own local jurisdiction only.
- As Article 32 is a fundamental right, so Supreme Court cannot refuse any petition filed under it and Article 226 confers discretionary power which means it is at the discretion of the High Court to issue a writ or not.
Article 226 has a much broader scope than Article 32 because it can also be used to enforce other legal rights having the same power of enforcing fundamental rights. It is Article 32 which is known as the heart and soul of the Constitution and is a fundamental right in itself and cannot be refused whereas, Article 226 being a constitutional right gives discretionary power to the High Courts. Therefore, power in both articles ensures that the rights of the citizens are protected.
DISMISSAL OF A WRIT PETITION BY THE SUPREME COURT UNDER ARTICLE 32 OF INDIAN CONSTITUTION
Under Article 32, the Supreme Court can dismiss a writ petition in the following circumstances:
- Non-filing of the writ in compliance with the court hierarchy
A person cannot file a writ petition in any other Court if the writ has been dismissed by Supreme Court once. But if the writ petition is filed before the High Court and refuses his writ petition, then he has the right to appeal against the decision of the Supreme Court under the principle of Natural Justice.
- Principle of Res judicata
It means when the case has been adjudicated by the court. It means that a matter already adjudicated or a matter in which the decision is already there, in such cases the Supreme Court may dismiss the petition. The principle of Res Judicata is based on three maxims:
Nemo debet lis vaxari pro eadem causa (no man should be charged twice for the same cause)
Interest republicae ut sit finis litium (it is in the interest of the state that there should be an end to litigation)
Res judicata pro veritate occipitur (a judicial decision must be accepted as correct)
- Misrepresentation of facts
If the petitioner is found to have committed a substantial misrepresentation of key facts then the Supreme Court may dismiss the petition at any stage.
- Availability of alternative relief
If the petitioner has any other alternative remedies sought in a lawsuit, then he must opt that remedy before filing a writ petition.
- Inordinate delay
Any delay will not be accepted in the court without any justified reason behind the undue delay.
- Malicious petition
If the writ petition submitted before the Apex Court is found malicious, then the Supreme Court can dismiss the petition under Article 32 of the Indian Constitution.
RECENT DEVELOPMENTS UNDER ARTICLE 32 OF INDIAN CONSTITUTION
- In 2019, the Supreme Court held in case of Shashidhar M. VS Poornima C that writ petitions for recalling directives in Special Leave Petition (SLP) are not maintainable.
- In the case of Skill Lotto Solutions Pvt Ltd. VS Union Of India (2020), Supreme Court held that Article 32 is an important and integral part of the basic structure of the Constitution.
- In another case of Gayatri Prasad Prajapati VS State of Uttar Pradesh and Others (2022), Supreme Court held that for quashing a criminal proceeding or a First Information Report (FIR) writ petitions cannot be filed.
- In the year 2020, in a case of Mohammad Moin Faridullah Qureshi VS The State Of Maharashtra , it was held by the Supreme Court that when a judgement is declared final under Article 32, it cannot be disputed.
- In the case of Sharad Zaveri vs Union Of India (2022), Supreme Court ruled that not all conflicts involving places of worship may be taken before the Supreme Court under Article 32.
- The Supreme Court warned against submitting petitions pertaining to Section 482 of the Criminal Procedure Code, 1973 under the guise of Article 32 in the case of Dharmraj Singh VS The State Of Bihar (2022).[8]
CONCLUSION
The constitutional remedies under Article 32 provided to the citizens are eloquent orders with immediate effects along with the results. That is the reason why it has always been considered as the powerful fundamental right embedded in the Indian Constitution. After all the study, it is clearly understandable that the Constitution of India is not rigid as on various cases it keeps on challenging the basis structure and the integral part of the Constitution. The Writs that are conferred by the Constitution have both prerogative powers and are discretionary in nature. Article 32 along with the parliament, entrusts the other courts to exercise the power of Supreme Court as it can be considered both the guarantor and protector enforced by the Judiciary of India where no citizen will be left unheard and deprived of his rights being the citizens of a democratic country.
[1] https://libertatem.in/articles/why-is-article-32-of-the-constitution-of-india-regarded-as-the-heart-and-soul-of-the-indian-constitution/
[2] Dr. J.N. Pandey, Constitutional Law Of India, Central Law Agency, Allahabad, 52nd edition, 2015
[3] Dr. J.N. Pandey, Constitutional Law Of India, Central Law Agency, Allahabad, 52nd edition, 2015
[4] https://blog.ipleaders.in/difference-article-32-article-226/
[5] Dr. J.N. Pandey, Constitutional Law Of India, Central Law Agency, Allahabad, 52nd edition, 2015
[6] https://blog.ipleaders.in/difference-article-32-article-226/
[7] https://www.legalservicesindia.com/law/article/1731/10/Article-32-Is-An-Important-And-Integral-Part-Of-Basic-Structure-Of-Constitution-SC?id=1731&u=10
[8] https://blog.ipleaders.in/article-32-constitution-india
Author: Dipshikha Roy Chowdhury
Juris Centre 