Article – 32, the guardian of citizens of India

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“यतो धर्मस्ततो जयः”

The above Sanskrit slogan is something that a few might know, the other part must be confused between “सत्यमेव जयते” and “यतो धर्मस्तो जयः” and the remaining unknown to the slogan. This slogan is that of the Supreme Court of India. The English translation of the above mentioned Sanskrit Slogan is “Where there is righteousness (dharma), there is victory (jayah)”. If we link the title of the article and the Sanskrit slogan, the reader might find himself/herself on the crossroads of thoughts. To clarify, this article has been solely dedicated to Article 32 of the Indian Constitution and the relevance of this article from our constitution in the modern-day era.

To begin with, let us see what exactly Article 32 says:

Remedies for enforcement of rights conferred by this Part

  1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
  2. 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
  3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
  4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

To say in layman language, Article 32 of the Indian constitution provides for remedy of approaching the Supreme Court of the country (also known as the apex court of the country) in case the six Fundamental Rights enshrined under Article 14 to Article 32 of the Indian Constitution has been violated. Now while writing the above statement, a question will definitely cross the mind of the readers. The question being, how Article 32 is the part of the six fundamental rights guaranteed by the Indian constitution?

To address the contention, it was maintained during Assam Sammilita Mahasangha v. Union of India, AIR 2015 SC 783 that Article 32 of the Indian constitution is the ‘heart and soul’ of the constitution that guarantees the right to move the Supreme Court for the enforcement of all or any of the fundamental rights conferred by Part III of the constitution. Hence, making this article (Article 32) a fundamental right itself.

Not just this, Article 32 has also been referred to as the ‘heart and soul’ by Dr. B.R. Ambedkar as well in his speech. While we are at it, it is important for the readers to understand that the remedies provided under Article – 32 are extraordinary in nature. Hence, it was observed in the case Kunga Nima Lepcha v. State of Sikkim, AIR 2010 SC 1671 that:

The remedies evolved by way of writ jurisdiction are of an extraordinary nature. They cannot be granted as a matter of due course to provide redressal in situations where statutory remedies are available”

Whenever we talk about Article 32 of the Indian Constitution, it is imperative to talk about Article 226 and 227 of the Indian constitution as well. Keeping in mind the audience of this article could/could not belong to legal fraternity, I will limit the explanation to the surface level and give a basic gist/information about the Article 226 and 227 of the Indian constitution. 

Article 226 of the Indian constitution says:

 Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without

(a) Furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.

This means that the power to issue writs regarding a violation of fundamental rights also lies in the hands of the High court of the state. Furthermore, not just writs, according to Aruna Ramchandran Shanbaug v. Union of India, AIR 2011 SC 1290: (2011) 4 SCC 454: JT 2011 (3) SC 300: (2011) (3) SCALE 298, the High Court under Article 226 has been conferred the power to issue orders or directions along with writs.

Now the contention that might arise in the mind of readers might be about the difference between Article 32 and Article 226 of the Indian Constitution. Prima facie, the difference that could be noted is that the latter involves only the Supreme Court of India, whereas the former involves the High Court of the state. The second difference being, Article 32 is a fundamental right, as it was explained above, whereas, Article 226 is a constitutional right. The basic difference between a fundamental right and a constitutional right is, the former is an inalienable and basic right granted to each and every citizen of the country, whereas, the latter is the supreme right guaranteed by the constitution of a nation.

Before addressing the issue of why Article 32 is in talks these days, the aspect of Public Interest Litigation needs to be understood. Now, PIL refers to any kind of litigation which has been filed in a court of law for the protection of the Public Interest as a whole like, increased level of pollution, terrorism, etc. Justice Krishna Iyer and Bhagwati are the people whose contribution to PIL made it a grand success. In India, the first PIL was filed in the year 1976 – Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai and others [1976 (3) SCC 832]. Some of the most important PILs include, Vishakha v. State of Rajasthan, M.C. Mehta v. Union of India etc.

The concept of PIL is closely linked to that of Article 32 and Article 226 of the Indian Constitution. Both the articles mentioned above have their own significance of the concept of PIL which then formed the landmark judgements under the Constitutional law.

As per Article 32 and PIL, it was observed under Kalyanseshwari v. Union of India, (2011) 3 SCC 287: JT 2011 (2) SC 38: (2011) 1 SCALE 651 that any petition that lacks bona fide intention and is aimed at taking over a company or to settle business rivalry or engaging into augmentation of the business of any other company at the cost of closure of business under the shadow of PIL is nothing but the abuse of the due process of law. Then, when we speak about Article 226 and PIL, it was observed under S.P. Gupta v. Union of India, AIR 1982 SC 149 and Wadhwa v. State of Bihar, AIR 1987 SC 579 and Ratlam Municipality v. Vardichand, AIR 1980 SC 1622 that,

“PIL is a proceeding in which an individual or group seeks relief in the interest of the general public and not for its own purpose”

Hence, if we draw a comparative analysis between the case laws with respect to PIL mentioned under that of Article 32 and Article 226, we could very well understand that PIL is not an instrument which could be used to garner rivalry and satisfy the personal interest(s) of organisation(s) and rather has to be used as an instrument of bringing in rational change in the society.

Now if we look at the present day scenario and Article 32, the country has been witness to the fact that the Apex court of the country has been engaging into two-fold statements regarding the same. Many people in the country have also argued to the point where they have called the Apex court as corrupt and one with double standards. The entire fiasco and the war of words started when the Apex court started being inconsistent with the position of Article 32 cases.

In the journalist Siddique Kappan case, the Supreme Court asked the petitioners to take the normal route to avail justice by first going to the High Court of Uttar Pradesh and then appeal in the Supreme Court if they lose in the High Court. A similar, yet a loosely tied approach was followed by the Supreme Court when the court directed a relief petition to the Bombay High Court and further asked to expedite the hearing of the bail plea based on medical grounds of the Poet Varavara Rao case. 

Contrary to these approaches, in the Arnab Goswami case, the court had then said that the right to approach the Supreme Court lies within the scope and ambit of Article 32. Further, it was also observed 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, it would amount to a serious and direct interference in the admission of justice in the country”

When we look at this case, a special vacation bench was appointed in order to avail speedy justice to the reporter, Arnab Goswami. Speedy justice and trial is something that is deserved by everyone and was clearly mentioned under Hussainara Khaaton v. State of Bihar. However, the argument of selective speedy trial prevails when a comparative analysis is drawn. One more important thing to note here is the fact that Mr. Harish Salve, who appeared on behalf of the petitioner (Mr. Arnab Goswami) followed the normal route of first approaching the High Court and then the Supreme Court.

Also, it was observed under Ramesh Thappar v. State of Madras, 1950 that the Supreme Court is the protector and guarantor of the Fundamental Rights, and it cannot refuse to entertain applications seeking protection against infringement of such rights. However, it was also observed under Jabalpur v. S.S. Shukla, 1976 that the citizen loses his right approach the court under Article 32. Now such contrary beliefs have made their way through the Indian Judiciary. As we see it, it is eventually at the discretion of the Supreme Court and each individual judge to decide about an intervention as such.

To conclude with, now that we have seen the structure of Article 32 of the Indian Constitution, it is necessary for us to understand that the very basic essence and ethos of this article is not just to issue writs, but be a guardian of the Indian citizens in true sense.

Abeer Tiwari – Writer Bharat Bharat

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