Article 32 – Indian Constitution [Explanation]

This article is a compilation of Article 32 as it is. You can understand it well, that’s why its explanation is also given below, you must read it. Its explanation is also available in Hindi, for this you can use the link given below;

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📖 Read This Article in Hindi

📜 Article 32

Right to Constitutional Remedies

32. 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 clauses (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.

🔍 Explanation

In our constitution, a lot of emphasis has been laid on fundamental rights to make a public welfare state. But as we know that the powers are in the hands of the state and our constitution is amendable, that is, the state can amend it if it wants.

In such a situation, what is the guarantee that fundamental rights should not be removed by amending them. This was absolutely possible and the Constituent Assembly knew this very well. That’s why it was arranged through Article 13 that any law which curtails the fundamental rights will be rejected to that extent.

⚫ Now one thing may come in your mind that when there is a provision in Article 13 that fundamental rights cannot be curtailed or abolished by any law, then why was Article 32 needed?

For this, let us consider some natural questions. Suppose the Parliament has to remove any fundamental right but due to Article 13, it is not able to remove it, then it has a way that, Article 368 Which is Parliament Gives the power to amend the constitution.

With his help, they should first remove Article 13 itself or amend it. As soon as this happens, after that he can easily make whatever changes he wants in the fundamental rights.

⚫ The second thing is that the  court is  not sitting only because of which law the government is making, whose basic rights are being violated.

This is the right given to a citizen, any person or his groups and it is his job to raise voice on the violation of such rights, but the question is that the constitution has given so much priority to the fundamental right, but if the state does not If the public is violated then where should they go? If he spoke then to whom?

It means to say that the fundamental right is of no use unless it is protected and unless there is an effective machinery to enforce it.

Keeping this in mind,  the provision of Article 32  (right to constitutional remedies) was included in the constitution for the protection of fundamental rights.

Its special thing is that it is also a fundamental right and it provides the right to constitutional remedies. Let us understand what kind of treatment it provides-

| Article 32 – Remedies for enforcement of rights conferred by this Part

As we have understood, the sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the Constitution.

The thing to be understood here is that it is limited to the enforcement of fundamental rights and secondly, if the fundamental rights are not violated, then a petition cannot be filed under Article 32; such as

If a person objects to any law or administrative order given under it on the ground that fundamental rights have been violated, then he can file a petition under Article 32.

If this does not happen, then no matter how wrong that law or that order is, the court will not interfere with that law or order under Article 32.

⚫ Doing business with the government or getting recognition from it is not a fundamental right, therefore a petition cannot be filed under Article 32 for the violation of such rights.

⚫ If your liberty is violated under Article 21 by the State then you can get the protection of Article 32, but if a private person locked you in a room then you cannot take advantage of Article 32.

⚫ If the provisions of any law are objected to on any ground other than the violation of fundamental rights, then this objection will not be considered in the proceedings under Article 32.

After understanding this much, let us understand this article section-wise;

Article 32 clause (1) The right to approach the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

This section gives a person the right to go directly to the Supreme Court on the violation of fundamental rights. And empowers the Supreme Court to issue writs for the enforcement of fundamental rights.

Clause (2) of Article  The Supreme Court shall have power to issue such directions or orders or writs including habeas corpus, mandamus, prohibition, writ of mandamus and writ of banishment, as may be appropriate, for the enforcement of any of the rights conferred by this Act.

This power of the Supreme Court can be taken away only through constitutional amendment and not by any ordinary law or administrative order. That too when the Supreme Court feels that it is not harming the basic structure of the Constitution.

And interestingly, Article 32 is the basic structure of the constitution and it was declared by the Delhi Judicial Service Association case 1991.

And that is why as long as the acceptance of the principle of basic structure remains, the Parliament cannot abolish it even by amending the constitution.

In case of violation of fundamental rights, the right to file a petition in the Supreme Court is also a fundamental right. That is why if a person brings a petition to the Supreme Court, then the Supreme Court cannot refuse to hear it.

Volume (3) Without prejudice to the powers of the Supreme Court to issue writs under the Act, Parliament may confer any or all of its powers to issue writs on any other court to be exercised within its local limits.

Although this has not happened so far, only the Supreme Court and the High Court have been given the power to issue writs.

clause (4) of article 32  Except as otherwise provided by the Constitution, the right guaranteed by this article shall not be suspended. That is, if the  President  wishes,   he can suspend it under Article 359 during the National Emergency.

It also happened during the Emergency that the protection of Article 32 was put on hold. Read the given article to understand it in detail; habeas corpus case 1976

What are the powers of the Supreme Court under Article 32?

The Constitution has empowered the Supreme Court to issue such directions or orders, writs or orders for the enforcement of any of the Fundamental Rights, under which they may issue  habeas corpus,  mandamus,  prohibition, certiorari and quo warranto  .

1. Habeas Corpus : It is derived from the Latin language, which means ‘ to be presented or brought forth ‘ .

If a person has   been forcibly detained by  the state or any other person and that person has filed a petition on the ground of violation of fundamental rights, then the court can issue a writ of habeas corpus  .

If the court does not find the custody lawful then that person is immediately released but if the custody is lawful then this writ cannot be issued.

The writ of habeas corpus can be issued against any public authority or any person and both. But these are not issued in some cases like,

(1) If the detention is lawful, it cannot be released,

(2) If the proceedings are for contempt of any Legislature or Court,

(3) If the detention took place outside the jurisdiction of the Court.

(4) If the custody is by the Court itself.

In 1976, a famous case came to the Supreme Court, which is called  Hibius Corpus case  or  ADM Jabalpur vs Shivkant Shukla  case.

It was a case of forcible custody, but the decision given by the Supreme Court at that time is counted among the worst decisions of the Supreme Court. What was the whole matter, for this you can read the given article.

2. Mandamus : It means ‘ We order  ‘. It is an order that is issued to public units,  subordinate courts , corporations,  authorities  and the government.

Why is it issued? When the court feels that the  institution or institution mentioned above is  not doing its work properly or when a person takes some work and goes to the concerned officer of these institution or institutions and they refuse to do it.

In such a situation mandamus is issued so that he can be asked about his actions and denials and such mistakes can be rectified.

In this writ, it is necessary that the petitioner has the right to get the work done against the person against whom this writ is being issued. It means to say that some work does not come under the purview of an officer, yet you ask him to do that work and if he refuses, then this writ cannot be issued. That is, before issuing the writ, it is necessary to prove that it is the work of that officer only.

◾ By the way, it is important to remember one thing here that mandamus cannot be issued in some areas, such as –

(1) against a private person or a private company,

(2) Such departments which are non-constitutional,

(3) Against the Governor and the President of the States of India,

(4) Against the Chief Justice of the High Court,

(5) Such work, the execution of which depends on discretion, etc.

3. Prohibition : Prohibition literally means to  stop .

It is issued by the Supreme Court or High Court to prevent subordinate courts or tribunals from performing judicial functions outside their jurisdiction.

For example – if a sub-divisional court sentences a convict to death, then the High Court can stay it. Because the death penalty is something outside his jurisdiction. That is, if a court does justice contrary to the law, then the High Court or the Supreme Court can stop it.

◾ It is worth remembering here that they can be issued only against judicial and quasi-judicial authorities. It cannot be issued against any other authorities or units.

4. Certiorari : Its literal meaning is ‘ to be certified  ‘ or ‘ to inform  ‘.

It is also somewhat similar to prohibition, but the main difference is that where prohibition is issued by a subordinate court to prevent encroachment of its jurisdiction, whereas a writ of prohibition is issued by a higher court to subordinate courts or tribunals. is issued for transfer of pending cases.

This means that whenever a Supreme Court feels that it should hear and review a particular case itself, while that case is in a lower court, then in such a situation any High Court or Supreme Court can issue a reference. He takes the matter to himself.

◾ One thing to note here is that apart from judicial authorities, it can also be issued against administrative authorities affecting the rights of individuals. However, this does not apply to private individuals or entities.

Secondly, using Article 32, the Supreme Court cannot issue a Certiorari against the High Court . That is, the decision of the High Court cannot be challenged under Article 32.

5. Quo Warranto : Its literal meaning is, ‘ Authorized  or by warrant’. By the way, it   is also called Right of inquiry .

Under which the court can investigate whether any person holding any public post is entitled to hold that post or not.

Or in other words, is he entitled to take the decisions he has taken while on that post or not.

In this, the court can ask that person under which right or by using which power you have done a certain work or have taken a decision.

For example – no person above 65 years of age can be appointed as a member of the Public Service Commission. If someone is appointed in violation of this rule, the court can order to vacate that post.

◾ It cannot be issued for any minister’s office or private office. Secondly, any interested person can ask to issue it.

What is the difference between the writ jurisdiction of the Supreme Court and the High Court?

All the writs that we have understood above about the right to issue writs by the Supreme Court can also be issued by the High Court of India. But there is some difference in the scope of issuing writs of both, which are as follows –

1.  The Supreme Court has got the right to issue writs under Article 32 (which itself is a fundamental right) and the Supreme Court can issue writs only for fundamental rights.

While talking about the High Court, which gets the right to issue writs under Article 226, it can also issue writs for any other general legal rights other than fundamental rights.

2.  The Supreme Court can issue writs against any person or the government, while the High Court can issue against individuals or governments other than its own state.

3.  Since  Article 32  is a fundamental right in itself, the Supreme Court cannot strike it down. This means that if anyone files a petition related to the violation of fundamental rights in the Supreme Court, then the Supreme Court cannot refuse to hear.

On the other hand, if we talk about the High Court, then it can also deny the implementation of its writ jurisdiction because the High Court   hears the case of violation of fundamental rights under Article 226 , which is not a fundamental right.

Apart from this, any other order can also be given which is necessary to protect the fundamental rights. That is to say, the court can pass such equitable orders which do not come within the ambit of privilege writs.

remember,

⚫ An application under Article 32 can be made to the Supreme Court in the first instance. That is why it is not necessary to first raise the matter in the High Court under Article 226.

⚫ If the application under Article 226 is dismissed by the High Court on merits, the writ cannot be issued by the Supreme Court on the same facts and on the same grounds.

⚫ If the High Court finds that a matter cannot be decided by writ proceedings, then the petitioner cannot apply to the Supreme Court under Article 32.

⚫ If the application under section 226 is dismissed in a summary hearing and no reasoned order is also passed. Or the question on which no decision has been taken, then the principle of res judicata will not apply here.

Under Article 32, the Supreme Court cannot:

◾ cannot make such declarations which are of no use to the petitioner.

◾ Cannot issue Certiorari against the High Court . (as we have also understood above)

◾ Can’t interfere in policy related decisions.

The Court cannot direct any Legislature or subordinate legislative authority to make any specific law or rule.

Who can apply under section 32?

◾ If any person feels that any of the fundamental rights given by the constitution have been violated, then he can report to the Supreme Court.

Remember here that there are some fundamental rights which are applicable to all persons, such as Article 14, so anyone can apply under Article 32 for violation of such fundamental rights.

But some rights are available only to Indian citizens, such as Articles 15, 16, 19, 29 and 30. So in this case only Indian citizen can apply for it.

◾ Corporate body can also do this under Article 32. But it cannot do so in the case of a right which is only for individuals.

Also remember here that the company and its shareholders are considered to be different, that’s why when any fundamental right of a company is violated, then the company has to come forward to get that right. The shareholder cannot take his place.

But if the fundamental rights of the shareholders of the company are also affected by any decision or law of the state, then the shareholders can also apply under Article 32. For example, you can see the case of RC Cooper v. Union of India .

◾ Since the right to property has been removed from the category of fundamental rights, therefore a person cannot approach the Supreme Court for the violation of the right to property.

Public Interest Litigation (PIL) and Article 32

Under Public Interest Litigation, any person or social organization can go to the court to get the rights of any person or group of persons, if that person or group of persons, due to poverty, ignorance or their adverse socio-economic conditions, go to the court itself. Can’t go for treatment.

As we have also understood above that ordinarily a person can make an application under Article 32 or Article 226 only when he is personally affected by the abrogation of the right by any law or order.

But having regard to the public or public interest, the Court shall allow the application to be made by any member of the organization having special interest in the matter. It is also known as public interest litigation .

Read in detail – PIL – Public Interest Litigation: Concept

So overall this is Article 32, I hope you have understood. To understand other article, you can use the link given below.

| Related Article

Hindi Articles	English Articles
⚫ अनुच्छेद 33 ⚫ अनुच्छेद 34 ⚫ अनुच्छेद 35 ⚫ अनुच्छेद 28 ⚫ अनुच्छेद 29	⚫ Article 25 ⚫ Article 34 ⚫ Article 35 ⚫ Article 28 ⚫ Article 29

⚫ Constitution ⚫ Basics of Parliament ⚫ Fundamental Rights ⚫ Judiciary in India ⚫ Executive in India

⚫ Constitution ⚫ Basics of Parliament ⚫ Fundamental Rights ⚫ Judiciary in India ⚫ Executive in India

Disclaimer - The articles and their interpretations presented here are based on the original Constitution (latest edition), DD Basu's commentary on the Constitution (mainly) and various scholars of the Constitution (whose writings are available in newspapers, magazines and audio-visuals on the Internet). We have just tried to make it interesting and easy to understand.