Context: Recently, the Supreme Court of India observed that it is trying to discourage individuals from filing petitions under Article 32 of the Constitution.
More on the news: The observation came during the hearing of a petition seeking the release of a journalist, who was arrested while on their way to Hathras, Uttar Pradesh, to report on an alleged gangrape and murder.
- One of the fundamental rights: Listed in the Constitution that each citizen is entitled.
- It is a right fundamental to all the fundamental rights guaranteed under the Constitution.
- The Article cannot be suspended except during the period of Emergency.
- 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.
- Right to Constitutional Remedies: It affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
- Only if any of the fundamental rights under Part III of the Constitution of India is violated, a person can approach the Supreme Court directly under Article 32.
- Significance of Article 32: According to Dr B R Ambedkar during the Constituent Assembly debates in 1948 -
- An Article without which this Constitution would be a nullity.
- It is the very soul of the Constitution and the very heart of it.
- The rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended.
- Five kinds of writs under Article 32:
- 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.
- Comparing SC’s and HC’s powers:
- 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.
The Supreme Court’s observations on Article 32:
- Romesh Thappar vs State of Madras (1950): The Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights.
- 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, during proclamation of Emergency.
- In the recent cases:
- The court asked why the petitioners could not go to the High Court.
- On a petition filed against the conditions of detention of Telugu poet Varavara Rao, the Supreme Court 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 court questioned the Assistant Secretary of the Maharashtra Assembly for approaching the top court against the breach-of-privilege notice.
- The court also observed that if a citizen of India is deterred from approaching this Court 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.
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.