This article is written by Mithravindha.R, BA.LL.B(Hons.),II year, SOEL,TNDALU during her internship at LeDroit India.
Keywords:
Fundamental rights, enforcement machinery, writs, infringed, supreme court
Abstract:
Part-III of Indian Constitution provides us with Fundamental Rights these rights may get violated, infringed or disregarded if there is no proper enforcement machinery. To prevent such situation our constitution makers have included article 32 and 226 to our constitution . Both of these acts as a guardian for fundamental rights. In this article we will be seeing about article 32 in more detail which provides right to the individual to move to Supreme court when their rights get unduly deprived, we will further discuss about the remedies available like writs, PIL, special leave petition etc. which enable the citizen to seek the court when their rights get infringed.
Article 32- An Overview:
“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”
-Dr.Ambedkhar
Article 32 is called the soul of the constitution because it paves way for any citizen to approach the court if their rights get infringed, it is the key which makes all other fundamental rights operative.
Article 32(1) provides right for the citizen to move to Supreme Court by “Appropriate Proceedings” if their fundamental rights get violated. There is no limitation for the kind of proceedings envisaged in article 32 (1). Here appropriate proceedings means the light of purpose for which the proceeding is to be taken.
32(2) allows supreme court to give appropriate directions or orders or issue writs like Habeas Corpus, Mandamus, Prohibition, Quo warranto or Certiorari for doing justice. (We will be discussing in detail in upcoming paras)
32(3) says that parliament by law can make other courts within local limits to exercise all or some of the powers exercised by supreme court
32(4) says that the right guaranteed under article 32 shall not be suspended except as otherwise provided for the constitution.[1]
Scope of Article 32:
Article 32 gives Supreme court wide powers which allows it to enforce fundamental rights guaranteed under part-III of Indian constitution using writs, orders or directions. It gives Supreme Court original Jurisdiction and not an appellate one, whose ever Fundamental Right gets violated can directly seek Supreme Court without approaching the High Court .It relaxes the rule of locus standi and allow the Public Interest Litigation at the instance of Public spirited individuals. However an application under Article 32 cannot lie where no fundamental right can be determined.
Following are the significance of article 32:
- It prevents the legislature or state from misusing their power that if power is unlimited they may use it to violate the rights of Individual
- A Individual can directly approach the supreme court if their rights get violated so that they can avoid the waste of time in approaching lower courts
- The restrictions on judiciary on certain area which it is not allowed interfere with is removed by Article 32
- There is a regular check on the work of authorities especially administrative authorities by issuing writs to ensure that they do not step out of their jurisdiction[2]
Hence article 32 plays a very important role in protecting the rights of the citizen and expanding powers of Supreme Court.
Locus Standi and PIL:
Locus Standi refers to the right to bring an action, an individual can bring an action against someone or a law only when he gets affected or injured. If he has no relation with the case then court may reject the case for not having locus standi, which led to many problems like no one were able to challenge the arbitrary administrative actions, which made them enjoy the unlimited power. And also the injured person suffering from poverty was not ready to incur expenses by moving to the court nor no one was able to sue on behalf of him as they lacked locus standi.This traditional rule of locus standi was overcome by Article 32 and 226 which did not prescribe specific person or class of persons having right to move to court [3]
Public Interest Litigation was permitted under article 32 whereby an Individual or Organisation can file a PIL either in his own standing or to protect the rights on behalf of the disadvantaged or weaker sections of the society who is unable to enforce their rights. Thus the rule of locus standi got replaced by PIL.
Writs and its types:
According to Lord Halsbury, writs can be called as Extraordinary Remedies which are issued upon causes shown in cases where the ordinary legal remedies are inapplicable or inadequate. This concept was borrowed from England law. Both High Court and Supreme Court have the power to issue the writs there are basically five types of writ, they are as follows:
Habeas Corpus:
The Latin term Habeas corpus means “You may have the body”. This writ is to release the person who is in illegal custody or produce him immediately before court if he is in prison or private custody. However it cannot be given against the detention issued by competent court or when it is lawful.
Mandamus:
This writ is issued by Supreme Court or High Court ordering a lower court, tribunal or a public authority to do their public duty which they failed to perform. However it cannot be issued against President of India, Governor of the state, Chief Justice of India, private individual or private organisation. The Latin term Mandamus means “we Command”
Certiorari:
Whenever the Supreme Court or High Court feels that there is error in the judgement of lower court or any tribunal it can issue the writ of Certiorari either to quash the order or to transfer it to higher court. This can be issued even against administrative authorities. Latin term Certiorari means “to be certified”
Quo-Warranto:
This writ is issued for asking a person who occupies a public office, to show by what authority he holds his office, if it is found that the holder has no valid title then he is asked to vacate from his office. It cannot le against a private office or ministerial office. The Latin term Quo warranto means “to forbid”
Prohibition:
This writ is issued by Supreme Court to prevent the lower court or tribunal or administrative authority from exceeding its jurisdiction or abuse of their jurisdiction setting aside the laws of land. The main difference between certiorari and prohibition is that the former is to quash the order which is issued after the proceedings while the latter prevent the further continuance of proceedings. The writ of prohibition is based on the object that prevention is better than cure. [4]
Article 32 and Article 226
Article 226 allows the citizens to move to the High court if their fundamental rights get violated or for any other purpose where the High Court is vested with a reservoir of powers that it can issue to any person or authority directions, writs or orders and it cannot be curtailed under any legislation. It is same as the right guaranteed under Article 32 however there are some differences as mentioned below
| S.NO. | Article 32 | Article 226 |
| 1. | It guarantees the right to move to Supreme Court when Fundamental right gets violated. | It guarantees the right to move to High court when a citizen’s right gets violated. |
| 2. | It is a fundamental right itself | It is not a Fundamental right |
| 3. | When emergency is declared by the president it cannot be suspended | When emergency is declared by president it can be suspended |
| 4. | It allows Supreme Court to issue writ throughout India | High court can issue writ only within its local jurisdiction |
| 5. | It is a fundamental right and cannot be left at the Court’s discretion | It is left at the discretion of the court to issue writs. |
Whether subsequent Writ petition to Supreme Court possible when earlier writ petition is pending in High Court?
When a petition is still pending before the High Court, filing of another writ petition before the supreme Court under Article 32 on identical set of facts for identical reliefs was held nothing to be but an abuse of process of the court. Hence the court dismissed the writ petition with costs of Rs. 1 lakh to be submitted to the Supreme Court Legal Service Authority was held in Lourembem Deben Singh v. Union Of India (AIR 2019 SC 391)[5]
Special Leave Petition:
Article 136 allows Supreme Court to grant Special Leave for any appeal from any judgement, decree or order passed by any court or tribunal. This Article is also called Lawyer’s paradise. However it can only be granted if the court has exercised the power in excess of its jurisdiction, or acted illegally or violated the principles of Natural Justice or committed an error of law.
Judicial Activism:
The rulings of the court based on political, personal, rational and prudence of judges rather than current or existing legislation. Its main objective is to declare the regulation void if it is ultra vires to the constitutional provisions. Such power for the court to make guidelines for public welfare is guaranteed under Article 32 same was held in Vichada v. State Of Rajasthan (AIR 1997 SC 301141)
Related case laws:
Shriram food and Fertilizer case or MC Mehta v. Union of India (1986 AIR 1086)
A writ petition under article 32 of Indian Constitution was filed for the closure of the Shriram Food and Fertilizer plant located in Kriti nagar which released dangerous substances creating public nuisance. The Supreme Court at the instance of PIL ordered the company to take all necessary actions before running the plant [6]
Sunil Batra v. Delhi Administration 🙁 1980 AIR 1579)
A writ petition was filed on behalf of inmates of a prison who were tortured by the prison authorities. The court appointed amicus curiae to visit the prison and they discovered that the petitioner suffered severe anal rupture which was a result of torture from the warden who was demanding money. The court held that fundamental rights do not flee the person when they enter prison [7]
Rudul Sah v. State Of Bihar (AIR 1983 SC 1086)
The court issued the writ of habeas corpus to release an acquitted person who was detained for over 14 years and also awarded the exemplary damages of Rs.50000/-[8]
Gujarat State Finacial Corporation v. Lotus Hotels pvt. Ltd.( AIR 1983 SC 1881)
In this case, the corporation entered into an agreement with the lotus hotel to provide finance for hotel construction but did not release the fund. The High court issued Writ of Mandamus to release the funds. [9]
Hari Vishnu v. Syed Ahmad (AIR 1955 SC 233)
In this case, Supreme court quashed the decision taken by the Election Tribunal on the ground that it ignored certain rules[10]
Raj Leathers v. Secretary to the Government of India (AIR 1990 Mad.30)
It has been held that the petitioner cannot seek the help of court and obtain a writ of prohibition to stop authorities from conducting investigation [11]
Baij Nath v. State of U.P. (AIR 1955 All 15)
It has been held that where the holder of an office has been continuing in office for a long time and there is no complaint against him, quo warranto cannot be issued against him as it would be vexatious. [12]
Conclusion:
Article 32 have made constitution a living and dynamic document even it had brought justice to the poor who cannot directly seek the court. It is an enforcement machinery for infringed fundamental rights. Not only this it has widened the power of Supreme Court by allowing to issue writs, orders and directions for the public Justice. Hence it is a proved fact that Article 32 is heart and soul of Constitution.
