Article 32 of Indian Constitution, Right to Constitutional Remedies

Article 32 of Indian Constitution is famously called the “heart and soul” of the Constitution by Dr. B.R. Ambedkar. It guarantees every Indian citizen the right to constitutional remedies when their fundamental rights are violated. Through this provision, citizens can directly approach the Supreme Court for protection of their rights. It ensures justice, safeguards liberty, and strengthens the democratic framework of India.

Article 32 of Indian Constitution

Article 32 provides the right to constitutional remedies, allowing citizens to move the Supreme Court (SC) for enforcement of their Fundamental Rights (FRs). Unlike other rights, Article 32 gives the SC mandatory jurisdiction, meaning the Court cannot refuse to hear cases related to violations of FRs.

The Parliament can empower other courts to issue directions and writs for enforcing fundamental rights. However, this does not include High Courts, as they already have writ jurisdiction under Article 226.

Types of Writs under Article 32

Writs are legal orders issued by the Supreme Court to enforce fundamental rights. There are five main writs:

1. Habeas Corpus (“To have the body”)

• Purpose: Protects individuals from unlawful detention or imprisonment.
• Who can file: Any person, even on behalf of someone detained.
• Against whom: Public authorities or private individuals.
• Exceptions:
  • Lawful detention
  • Detention by a competent court
  • Contempt proceedings
  • Detention outside court jurisdiction

2. Mandamus (“We command”)

• Purpose: Orders public officials to perform duties they have failed to do.
• Who can file: Any person whose rights are affected.
• Against whom: Public officials, government bodies, corporations, tribunals, or inferior courts.
• Cannot be issued:
• Against private individuals
• To enforce discretionary duties
• To enforce contractual obligations
• Against the President, Governors, or Chief Justices of High Courts

3. Prohibition (“To forbid”)

• Purpose: Prevents a lower court or tribunal from exceeding its jurisdiction.
• Against whom: Only judicial and quasi-judicial bodies.
• Difference from Mandamus: Mandamus orders action, while Prohibition orders inaction.

4. Certiorari (“To be certified or informed”)

• Purpose: Transfers a case from a lower court to a higher court or nullifies the lower court’s order due to excess of jurisdiction or error of law.
• Against whom: Judicial, quasi-judicial, and administrative authorities.

5. Quo Warranto (“By what authority”)

• Purpose: Challenges the legal right of a person to hold a public office.
• Who can file: Any interested person, not necessarily the aggrieved.
• Scope: Only for substantial public offices created by statute or Constitution. Cannot be applied to ministerial or private offices.

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Can Article 32 of Indian Constitution be Amended?

Article 32 of the Indian Constitution cannot be amended as it is part of the basic structure of the Constitution. The Supreme Court, in Kesavananda Bharati vs State of Kerala, ruled that the basic structure cannot be altered. Later, in L. Chandra Kumar vs Union of India, the Court confirmed that Article 32 is an integral part of this basic structure. Therefore, Parliament cannot amend or remove the right to constitutional remedies under Article 32.

Supreme Court Observations on Article 32

The Supreme Court has repeatedly emphasized that Article 32 is a fundamental right and a guaranteed remedy for enforcement of fundamental rights, and any obstruction to it undermines justice. Its accessibility and urgency are crucial for protecting citizens’ liberties.

1. Romesh Thappar vs State of Madras (1950) – Article 32 provides a “guaranteed remedy” for the enforcement of fundamental rights.
2. Arnab Goswami Case – Any hindrance to the right under Article 32 is a serious interference with the justice system.
3. Telugu Poet Varavara Rao Case – SC directed the Bombay High Court to expedite a bail plea, emphasizing timely justice.
4. Journalist Siddique Kappan Case – SC questioned why petitioners could not approach the High Court, underlining the importance of accessible remedies.
5. L. Chandra Kumar vs Union of India – Confirmed Article 32 as integral to the basic structure and cannot be amended.

Difference Between Article 32 and Article 226

Article 32 provides citizens with a fundamental right to approach the Supreme Court for enforcement of Fundamental Rights, whereas Article 226 empowers High Courts with discretionary writ jurisdiction to enforce both fundamental and legal rights.