Dr. B.R. Ambedkar once 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 (Article 32). It is the very soul of the Constitution and the very heart of it. This article examines the Indian approach towards this provision, and whether it is truly relevant for the Indian scenario.
Introduction
Article 32 in the Indian Constitution is the protector of the Fundamental Rights of the citizens of India. It is a mechanism or an instrument through which an individual whose fundamental rights have been infringed can approach the Apex Court i.e. Supreme Court of India to seek remedy as well as enforcement of these rights. Thus, Article 32 makes the Supreme Court both the guarantor and the defender of ‘Fundamental Rights’.
Why is Article 32 Regarded as the ‘Heart and Soul of the Constitution’?
Article 32 of the Indian Constitution provides remedies to individuals whose fundamental rights have been violated. The article is included in Part III of the Indian Constitution along with other rights like the right to life and personal liberty, right to free speech and expression, etc. and if any of these other rights are violated, an individual has a right to approach the Supreme Court for enforcement of his/her rights.
When article 32 was introduced, there was a debate in the Constituent Assembly (now NITI Aayog) whether article 32 can be suspended or limited during the period of emergency, and then it was decided that the article cannot be suspended except during the period of emergency.
Thus, Article 32 is the protector of the rights of the citizens of India and is regarded as the ‘heart and soul of the constitution’.
Scope and Ambit of Article 32
Article 32, within its scope and ambit, has four provisions which are as follows: it empowers the individual with the right to move to the Supreme Court if his or her fundamental rights, mentioned within Part III of the Indian Constitution, are violated. Moreover, it provides the Supreme Court with the power to issue directions, orders, writs including the writ like:
- Habeas Corpus: Habeas Corpus is a Latin term which means “To have the body”. If a person is illegally detained by authority then that authority has to produce that illegally detained person within 24 hours of his or her arrest.
- Mandamus: Mandamus means “We Command”. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform or has wrongfully performed.
- Quo Warranto: Quo Warranto means “by what authority or warrants”. It is issued by the court to inquire into the legality of the claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.
- Prohibition: Prohibition means “to forbid”. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
- Certiorari: Certiorari means “to certify”. It is an order issued by the superior court to an inferior court or tribunal exercising judicial or quasi-judicial functions to investigate and decide the legality and validity of the order passed by it.
Under this clause, parliament may empower any other court to exercise within the local limits of its jurisdiction all or of the powers exercised by the Supreme Court in clause (1) and (2). This clause talks about when Article 32 can be suspended. The rights guaranteed under Article 32 can only be suspended except as provided by the Constitution.
Cases Related to Article 32
Article 32, as stated above, is regarded as the heart and soul of the Indian Constitution and also the protector and saviour of the rights of Indian citizens but here a question pops up that is “whether Article 32 is a part of the Basic Structure Doctrine?”
The Basic Doctrine was evolved by the Supreme Court in its judgment of the case of Kesavananda Bharati v. the State of Kerala, AIR 1973 SC 1461 in the year 1973 which states that the parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.
Now coming back to our question of whether Article 32 is a part of the basic structure then the answer to this is ‘Yes’. For the first time, in the case of L Chandra Kumar v. Union of India and Others, AIR 1997 SC 1125, the Supreme Court declared that Article 32 was an integral and essential part of the Indian Constitution. The same thing was again reiterated in the case of S P Sampath Kumar v. Union of India [AIR 1987 SC 386].
During the period of emergency in the year 1975, a case came up by the name of A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, where the Supreme Court held that the right to constitutional remedies enshrined under Article 32 cannot be enforced during the period of emergency.
With the winning of the Janta Party in the 1977 elections, they wanted to restore the situation of law and order which was there before the emergency and thus, the 44 Constitutional Amendment, 1976 was passed under which the President of India can suspend the right of the individual to move to Supreme Court for enforcement of their Fundamental Rights under Article 32 during National emergency under Article 359 except Article 20 and 21. It also altered Article 359 to say that during an emergency one could approach the Supreme Court to issue habeas corpus writs.
Critical Analysis of the Recent Trends Relating to Article 32
The right to move to the Supreme Court under Article 32 has seen a decline since the Supreme Court is now not entertaining petitions which are being filed by the petitioners. The Chief Justice of India, S.A. Bobde, had made a statement stating that they are trying to cut down the jurisdiction of Article 32.
The statement made by the Chief Justice of India was instead of the numerous petitions filed under Article 32 and is asking the petitioners to approach the High Courts rather than approaching the Supreme Court directly under Article 32 since they are discouraging such petitions.
But the main question which lies here is “Whether the Supreme Court can discourage the petitions filed under Article 32?” The same issue was raised in the case of Romesh Thappar v. the State of Madras, AIR 1950 SC 124 where the Advocate General of Madras raised an objection to the petition filed under Article 32 and argued that as per the procedure practised in the U.S., the petitioner should first have approached the appropriate High Court under Article 226 and then would have approached the Supreme Court thereafter.
During that time, the Supreme Court rejected this argument and stated that “Article 32 provides a “guaranteed” remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court has 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.” This becomes a settled law until decades when in the year 2003, in the case of Union of India v. Paul Manickam, (2003) 8 SCC 342, the apex court held that if Article 32 was being invoked to approach the court directly, then the petitioner needs to satisfy that as to why the High Court cannot be approached in such matter. If the petitioner fails to satisfy why they haven’t approached the High Court first, then filing of such petitions under Article 32 should be discouraged.
Although the Supreme Court wants to discourage such petitions under Article 32 then some clear grounds or clarifications as to why such petitions are being discouraged should be made. Also, the Supreme Court has not provided any proper reasoning behind not following the precedent established in the Romesh Thappar case, and thus there is, for now, no valid legal rationale as to why they are being discouraged.
Conclusion
As I see it, the Supreme Court should set up some concrete reasons as to why Article 32 petitions are being discouraged and a decade’s long precedent set in the Romesh Thappar case is being broken now. Nonetheless, Article 32, time and again, has acted as a guardian and a saviour of fundamental rights, and thus, I agree with what Dr. B.R. Ambedkar said that without Article 32, the Indian Constitution is null and void and thus is regarded as the heart and soul of the Indian Constitution.
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