ARTICLE 32 OF THE CONSTITUTION OF INDIA: RIGHT TO CONSTITUTIONAL REMEDIES

SHYAMASREE KAYAL

SOUTH CALCUTTA LAW COLLEGE

“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 (Article 32). It is the very soul of the Constitution and the very heart of it.”

Dr. B.R. Ambedkar

ABSTRACT:

The best conferment of the Constitution is the Fundamental Rights. Somehow or another, they frame the rampart of our Constitution. Each one of these Rights is trivial if there exists no instrument to authorize them. Article 32 gives such a component. That is the reason it is the gem, the delegated wonder, the heart, and the spirit of the Constitution.

KEYWORDS:

Habeas Corpus, Mandamus, Quo Warranto, Certiorari, Writ, Locus Standi.

INTRODUCTION:

Article 32 of the Indian Constitution^[1] gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights.

It is one of the fundamental rights listed in the Constitution that each citizen is entitled to. 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 the power to issue directions or orders or writs, including writs like 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 Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion. Only if any of these fundamental rights are 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 explained Article 32 as the soul and heart of the Constitution. 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”.

RESEARCH METHODOLOGY:

The descriptive and secondary quantitative data-based analysis is conducted to understand Article 32 of the Constitution of India as a right to Constitutional Remedy. The data collected is mostly from sources of various books, journals, articles, annual reports published by the government, and websites of different governmental and non-governmental agencies and organizations.^[2]

WRIT:

A precept in writing, couched in the form of a letter, running in the name of the king, president, or state, issuing from a court of justice, and sealed with its seal, addressed to a sheriff or other officer of the law, or directly to the person whose action the court desires to command, either as the commencement of a suit or other proceeding or as incidental to Its progress, and requiring the performance of a specified act, or giving authority and commission to have it done.

NATURE OF WRIT JURISDICTION:

The nature of Writ Jurisdiction provided under this Article is discretionary. There are five important factors for guiding this discretion.

Factors Guiding the Discretion	Meaning
1. Locus Standi	Right to bring an action or to be heard before a court.
2. Alternative Relief	Remedies are sought in a lawsuit in various or alternative forms.
3. Res Judicata	A case that has been decided.
4. Questions of the Fact	An issue that involves the resolution of a factual dispute or controversy.
5. Laches	A defense to an equitable action, that bars recovery by the plaintiff because of the plaintiff’s undue delay in seeking relief.

TYPES OF WRITS:

There are five types of Writs as provided under Article 32 of the Constitution:

HABEAS CORPUS:
Meaning

It is one of the important writs for personal liberty which says “You have the Body”. The main purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the protection of the individual from being harmed by the administrative system and it is for safeguarding the freedom of the individual against arbitrary state action which violates fundamental rights under articles 19, 21 & 22 of the Constitution. This writ provides immediate relief in case of unlawful detention.

When Issued?

The writ of Habeas Corpus is issued if an individual is kept in jail or under private care without any authority of law. A criminal who is convicted has the right to seek the assistance of the court by applying for “writ of Habeas Corpus” if he believes that he has been wrongfully imprisoned and the conditions in which he has been held fall below minimum legal standards for human treatment. The court issues an order against a prison warden who is holding an individual in custody to deliver that prisoner to the court so that a judge can decide whether or not the prisoner is lawfully imprisoned and if not then whether he should be released from custody.

Important judgments on Habeas Corpus

The first Habeas Corpus case of India was that in Kerala where it was filed by the victims’ father as the victim P. Rajan who was a college student was arrested by the Kerala police and being unable to bear the torture he died in police custody. So, his father Mr. T.V. Eachara Warrier filed a writ of Habeas Corpus and it was proved that he died in police custody.

Then, in the case of “ADM Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]”^{^[3]} which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the emergency (Article 359).

While deciding whether Habeas Corpus writs are civil or criminal, it was held in “Narayan v. Ishwarlal [1965 SC 1818]”^{^[4]} that the court would rely on the way of the procedures in which the locale has been executed.

This writ has been extended to non-state authorities as well which is evident from two cases. One from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in which the proctor of Cambridge University detained and arrested Hopkins without his jurisdiction and Hopkins was released. And in the case of “Somerset v. Stewart [(1772) 98 ER 499]”^{^[5]} wherein an African Slave whose master had moved to London was freed by the action of the Writ.

QUO WARRANTO:
What does the writ of Quo Warranto mean?

Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of public offices and it is issued to restrain persons from acting in public office to which he is not entitled. Although the term ‘office’ here is different from ‘seat’ in the legislature but still a writ of Quo Warranto can lie concerning the post of Chief Minister holding an office whereas a writ of quo warranto cannot be issued against a Chief Minister, if the petitioner fails to show that the minister is not properly appointed or that he is not qualified by law to hold the office. It cannot be issued against an Administrator who is appointed by the government to manage Municipal Corporation, after its dissolution. Appointment to public office can be challenged by any person irrespective of the fact whether his fundamental or any legal right has been infringed or not.

The court issues the Writ of Quo Warranto in the following cases:

When the public office is in question and it is substantive. A petition against a private corporation cannot be filed.
The office is created by the State or the Constitution.
The claim should be asserted in the office by the public servant i.e. respondent.
Important Case Laws

In the case of “Ashok Pandey v. Mayawati [W.P. (Civil) 296 0f 2007 SC]”^{^[6]}, the writ of Quo Warranto was refused against Ms. Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha members.

Then in the case of “G.D. Karkare v. T.L. Shevde [AIR 1952 Nag 330, 334]”^{^[7]}, the High Court of Nagpur observed that “In proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office.”

The Writ of quo warranto was denied by the court in the case of “Jamalpur Arya Samaj v. Dr. D. Ram [AIR 1954 Pat 297]”^{^[8]}. The writ was denied on the ground that writ of quo warranto cannot lie against an office of a private nature. And also the office must be substantive. Whereas in the case of R.V. Speyer the word ‘substantive’ was interpreted to mean an ‘office independent to the title’. Also in “H.S. Verma v. T.N. Singh [1971 AIR 1331, 1971 SCR 1]”^{^[9]}, the writ was refused as the appointment of a non-member of the state legislature as C.M. was found valid given Article 164(4) which allows such appointment for six months.

MANDAMUS:
Writ of Mandamus

The writ of Mandamus means “We Command” in Latin. This writ is issued for the correct performance of mandatory and purely ministerial duties and is issued by a superior court to a lower court or government officer. However, this writ cannot be issued against the President and the Governor. Its main purpose is to ensure that the powers or duties are not misused by the administration or the executive and are fulfilled duly. Also, it safeguards the public from the misuse of authority by the administrative bodies. The mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty is like public duty and it especially affects the right of an individual, provided there is the no more appropriate remedy”. The person applying for mandamus must be sure that he has the legal right to compel the opponent to do or refrain from doing something.

Conditions for issue of Mandamus

There must rest a legal right of the applicant for the performance of the legal duty.
The nature of the duty must be public.
On the date of the petition, the right which is sought to be enforced must be subsisting.
The writ of Mandamus is not issued for anticipatory injury.
Limitations

The courts are unwilling to issue a writ of mandamus against high dignitaries like the President and the Governors. In the case of “S.P. Gupta v. Union of India [AIR 1982 SC 149]”^{^[10]}, judges were of the view that writ cannot be issued against the President of India for fixing the number of judges in High Courts and filling vacancies. But in “Advocates on Records Association v. Gujarat [AIR 1994 SC 268]”^{^[11]}, the Supreme Court ruled that the judges’ issue is a justiciable issue and appropriate measures can be taken for that purpose including the issuance of mandamus. But in “C.G. Govindan v. State of Gujarat [(1992) IILLJ 473 Guj]”^{^[12]}, it was refused by the court to issue the writ of mandamus against the governor to approve the fixation of salaries of the court staff by the Chief Justice of High Court under Article 229. Hence, it is submitted that the Governor or the President means the state or the Union and therefore issuance of mandamus cannot take place.

Important Judgements

In “Rashid Ahmad v. Municipal Board “[1950 AIR 163, 1950 SCR 566]”^{^[13]}, it was held that about Fundamental Rights the availability of alternative remedy cannot be an absolute bar for the issue of writ though the fact may be taken into consideration.

Then, in the case of “Manjula Manjori v. Director of Public Instruction[AIR 1952 Ori 344]”^{^[14]}The publisher of a book had applied for the writ of mandamus against the Director of Public Instruction for the inclusion of his book in the list of books that were approved as textbooks in schools. But the writ was not allowed as the matter was completely within the discretion of D.I.P and he was not bound to approve the book.

CERTIORARI:
What does Writ of Certiorari mean?

Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the jurisdiction and the decision of the case is based on it. The writ can be moved to higher courts like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of the Writ of Certiorari. Certiorari is not issued against purely administrative or ministerial orders and that it can only be issued against judicial or quasi-judicial orders.

When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:

Either without any jurisdiction or in excess.
In violation of the principles of Natural Justice.
In opposition to the procedure established by law.
If there is an error in judgment on the face of it.

The writ of certiorari is issued after the passing of the order.

Important Judgments on writ of Certiorari

In “Surya Dev Rai v. Ram Chander Rai & Ors[Appeal (Civil) 6110 of 2003]”^{^[15]}., the Supreme Court has explained the meaning, ambit, and scope of the Writ of Certiorari. Also, in this it was explained that Certiorari is always available against inferior courts and not against equal or higher courts, i.e., it cannot be issued by a High Court against any High Court or benches, much less to the Supreme Court and any of its benches. Then in the case of “T.C. Basappa v. T. Nagappa & Anr. [1954 AIR 440, 1955 SCR 250]”^{^[16]}, it was held by the constitution bench that certiorari may and is generally granted when a court has acted (i) without jurisdiction or (ii) more than its jurisdiction. In “Hari Bishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233, 244]”^{^[17]}The Supreme Court said that “the court issuing certiorari to quash, however, could not substitute its own decision on the merits or give directions to be complied with by the court or tribunal. Its work was destructive, it simply wiped out the order passed without jurisdiction, and left the matter there.” In “Naresh S. Mirajkar v. State of Maharashtra [AIR 1967, SC 1]”^{^[18]}, it was said that High Court’s judicial orders are open to being corrected by certiorari and that writ is not available against the High Court.

PROHIBITION:
What does Writ of Prohibition mean?

It is a writ directing a lower court to stop doing something which the law prohibits it from doing. Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from acting contrary to the rules of Natural Justice.

When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts to refrain it from doing something which it is not supposed to do as per law. It is usually issued when the lower courts act more than their jurisdiction. Also, it can be issued if the court acts outside its jurisdiction. And after the writ is issued, the lower court is bound to stop its proceedings and should be issued before the lower court passes an order. Prohibition is a writ of preventive nature. The principle of this is ‘Prevention is better than cure.

Important Case Laws

In the case of “East India Commercial Co. Ltd v. Collector of Customs [1962 AIR 1893, 1963 SCR (3) 338]”^{^[19]}, a writ of prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on the ground that the proceeding is without or more than jurisdiction or contradiction with the laws of the land, statutes, or otherwise. Then in the case of “Bengal Immunity Co. Ltd –V- State of Bihar[1955]”^{^[20]}, the Supreme Court pointed out that where an inferior tribunal is shown to have seized jurisdiction which does not belong to it then that consideration is irrelevant and the writ of Prohibition has to be issued as a right.

AMENDMENTS TO ARTICLE 32:

‘Anti-freedom’ clauses were included in Article 32 by the 42nd Amendment. Such an amendment was made during the time of emergency when it was passed to reduce ‘both directly and indirectly’ the jurisdiction of the Supreme Court and the High Courts to review the application of fundamental rights. Then 43rd amendment of the Indian Constitution was passed which repealed Article 32A immediately after the emergency was revoked. Following the amendment, the Supreme Court again gained the power to quash the state laws. Also, the High Courts got the power to question the constitutional validity of central laws.

LIMITATIONS TO ARTICLE 32:

There are certain circumstances during which the citizens do not get the privileges that they ought to under Article 32. Therefore, the situations when the fundamental rights may be denied to the citizens but the constitutional remedies will not be available i.e. Article 32 will not be applicable are:

Under Article 33, the Parliament is empowered to make changes in the application of Fundamental Rights to armed forces and the police are empowered with the duty to ensure proper discharge of their duties.
During the operation of Martial law in any area, any person may be indemnified by the Parliament, if such person is in service of the state or central government for the acts of maintenance or restoration of law and order under Article 34.
Under Article 352 of the Constitution when an emergency is proclaimed, the guaranteed Fundamental Rights of the citizens remains suspended. Also, Fundamental Rights guaranteed under Article 19 is restricted by the Parliament under Article 358 during the pendency of an emergency.
Article 359 confers the power to the President to suspend Article 32 of the Constitution. The order is to be submitted to the Parliament and the Parliament may disapprove the President’s order.

CONCLUSION:

The constitutional remedies provided to the citizens are the powerful orders with immediate effect. And the writs are mostly invoked against the state and are issued when PILs are filed. The Writ Jurisdictions which are conferred by the Constitution though have prerogative powers and are discretionary and yet they are unbounded in its limits. The discretion, however, is exercised on legal principles. Therefore, the first essential on which the constitutional system is based in the absence of arbitrary power. Hence, the decision must be taken based on sound principles and rules and should not be based on whims, fancies, or humor. And if a decision is not backed by any principles or rules, then such a decision is considered arbitrary and is taken not following the rule of law.

References: