Supreme Court’s recent observations on Article 32
In November 2020, 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. The observation came during the hearing of a petition seeking the release of journalist Siddique Kappan, who was arrested with three others while on their way to Hathras, Uttar Pradesh, to report on an alleged gangrape and murder.
Article 32 is one of the fundamental rights listed in the Constitution that each citizen is entitled. 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. 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.
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. The Article cannot be suspended except during the period of Emergency.
Can High Courts be approached in cases of violation of fundamental rights?
Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:
* Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)
* Mandamus — directing public officials, governments, courts to perform a statutory duty;
* Quo warranto — to show by what warrant is a person holding public office;
* Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
* Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.
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 of the Supreme Court directly under Article 32. Article 226, however, is not a fundamental right like Article 32.
What have been the Supreme Court’s recent observations 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, and will hear the case later this week.
In another case invoking Article 32, filed by a Nagpur-based man arrested in three cases for 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 hearing on 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 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 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”.
And what have been its 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 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.
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.
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