ANALYSIS OF ARTICLE 32 OF THE CONSTITUTION OF INDIA

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Introduction

It is true that a declaration of fundamental rights is meaningless unless there is an effective machinery for the enforcement of rights. it is remedy which makes the right real. If there is no remedy there is no right at all. It was, therefore, in the fitness of things that our Constitution-makes having incorporation a long list of fundamental rights have also provided for an effective remedy for the enforcement of these rights under Article 32 of the constitution. Article 32 is itself a fundamental right. Article 226 also empowers all the High Courts to issue the writs for the enforcement of fundamental rights.

^{^[3]}Article 32 of the Indian Constitution 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’.

Under Article 32, the parliament can also entrust any other court to exercise the power of the Supreme Court, provided that it is within its Jurisdiction. And unless there is some Constitutional amendment, the rights guaranteed by this Article cannot be suspended. Therefore, we can say that an assured right is guaranteed to individuals for enforcement of fundamental rights by this article as the law provides the right to an individual to directly approach the Supreme Court without following a lengthier process of moving to the lower courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of Fundamental Rights.

Constitutional philosophy of Article 32

A person whose right is infringed by an arbitrary administrative action may approach the court for appropriate remedy. The constitution of India, under Article 32 jurisdiction on supreme court, respectively for enforcement /protection of fundamental rights of an individual. Writs is an instrument or order of the court by which the court (supreme court) direct an individual or official or an authority to do an act or abstain from doing an Act.

Article 32 (2) of the Constitution of India provides. “The Supreme court shall order have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus prohibition quo warranto and certiorari, which may be appropriate, for the enforcement of any of rights conferred by this part”

Article 32 is a fundamental right under part-III of the Constitution. Under this Article, the supreme court is empowered to relax the traditional rule of Locus Standi and allow public interest litigation(PIL) at the instance of public spirited citizens. The supreme court may also award exemplary damages by exercising its power under Article 32 as it has imposed in case of Bhim Singh’s V State of j. & k ^{^[4]}

In this case hon’ble Supreme Court held that apart from ordering the detenu at liberty also ordered compensation giving rise to new jurisprudence of compensation law.

Rudal shah’s V State of Bihar^{^[5]}

In this case Supreme Court can pass an order for the payment of money, in the nature of compensation consequential upon the upon the deprivation of fundamental right to life and liberty of a person. In the instant case, though the petitioner was acquitted, he was released from the jail after14 years of his acquittal. The Supreme Court directed the State to pay a sum of rupees35,000 as compensation for illegal arrest, in addition to rupees 5000 already paid by it. The order of compensation was in the nature of a palliative and it did not preclude the petitioner from bringing a suit to recover appropriate damages from the state and its erring officials.

Right to constitutional remedies

Article 32^{^[6]}. 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

3.1 Enforcement of fundamental rights

Article 32 can be invoved for the enforcement of fundamental rights given under part III of the constitution and the court is bound to issue appropriate direction, order or writ for their enforcement. Previously, only those proceeding were considered “appropriate” which were invoked by original petition, the jurisdiction of the Supreme Court to issue writs is given under clause(2).Later ,it was held that this restrictive interpretation does not apply to case of Article 32 where the purpose of proceeding is enforcement of a fundamental right.^{^[7]}

Charles Sobraj v. Supt., Central Jail^{^[8]}

In this case hon’ble Supreme Court held that Article 32enshires a very valuable right, if a prisoner’s fundamental right is flouted or legislative protection is ignored, the Supreme Court’s writ will run, breaking through stone walls and iron balls,to right the wrong, and restore the rule of law.

In Nain Sukh Das v. State of U. P.^{^[9]}

In this case hon’ble Supreme Court held that any right the petitioner may have as a ratepayer of The Municipality the purview of Article 32 of the constitution. Such a right is not a fundamental Right conferred by part III of the Constitution.

What is 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. For the names and description of various particular writs, see the following titles.^{^[10]}

In old English law. An Instrument In the form of a letter; a letter or letters of attorney. This is a very ancient sense of the word.
In the old books, “writ” is used as equivalent to “action;” hence writs are sometimes divided into real, personal, and mixed.
In Scotish law. Writing; an instrument in writing, as a deed, bond, contract, etc.

Types of WRITS

Habeas Corpus
Certiorari
Prohibition
Mandamus
Quo Warranto

Habeas corpus

Habeas corpus literally means “to produce the Human body”

The writ of habeas corpus is the highly privileged prerogative write under the English Law. It is considered as the most important safeguard a\ personal liberty, the main of which is the speedy release of a person who is illegally detained. It is remedial and not punitive, meaning hereby that it is meant to determine the illegality of a detention and not punish a person for past offence. It is a procedural writ and deals with the machinery of justice and not with substantive law. The writ is available in all cases of deprivation of personal liberty or wrongful detention and is a command addressed to a person who is alleged to have another person unlawfully in his custody, requiring hi to bring the body of such person before the court and show under which authority he is restraining him. If the court is satisfied that such detention is illegal, it can order the immediate release. An application writ of habeas corpus can be made by any person on behalf of the person detained but not by a stranger.

In Sunil Batra (2) V. Delhi Admn.^{^[11]}[Sunil Batra (2)]

In this case Hon’ble Supreme Court Held that the writ of Habeas corpus is a writ of versatile vitality and operational utility that makes the healing of presence of law to live up to its reputation as bastion of livery even within jails. The Burden of proof to justify detention lies on the shoulders of detaining authorities.

IN ADM, Jabalpur v. Shivakant Shukla^{^[12]} (Habeas corpus case)

In this case Hon’ble Supreme court held that a person who is a detained under Maintenance of Internal security Act, (MISA) could not Move to a High Court for his release as long as enforcement of fundamental rights remain suspended during the emergency. In his strong dissenting judgment, Khanna held that the Constitution does not empower any authority to suspend the power of High Courts to issue writ of habeas corpus during the period of emergency. He observed that Article 226 of the Constitution, under which the High Courts can issue writs, is an integral part of Constitution and same cannot be suspended by putting a particular interpretation on the Presidential Order issued under Article 359(I).

Mandamus

The word “mandamus” means “the order”. The writ of Mandamus is thus an order by a superior court commanding a person or a public authority (including the Government and public corporation) to do or forbear to do something in the nature of public duty or certain cases of a statutory duty. The conditions under which the writ is issued in England are in substance the same as those set forth in Section 45 and 46, Specific Relief Act,1963.

Mandamus will not, however, lie against the president, the Governor, High Court judge, Central or State Legislative, a person who does not hold public office, a company registered under the Companies Act,1956,unless it is an agency or instrumentality of the government.

In Vineet Narain v. Union of India^{^[13]}

In this case Hon’ble supreme court held that observed that the writ of mandames may be issused for an indefinite period and the supreme court has aple power to keep the matter pending before it and issue direction from time to time.

In Praga Tools Corporation v. C.V. Imanual^{^[14]}, and Sohanlal v. Union of India,^[15]

The nature of the duty must be public. the Supreme Court stated that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority. 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. But Any body who is likely to be affected by the order of a public officer is entitled to bring an application for mandamus if the officer acts in contravention of his statutory duty

Prohibition

The jurisdiction for the grant of a writ of prohibition is primarily supervisory and the object of writ is to restrain courts or inferior tribunals from exercising jurisdiction which they do not possess at all to prevent them from exceeding the limits of their jurisdication.^[16] Prohibition is a legal term that implies ‘to prohibit, restrain, prevent, or forbid.’ A higher court issues a writ of prohibition against the lower court to prevent it from exceeding its authority or going beyond its required jurisdiction. It cannot be enforced against administrative agencies, statutory authorities, or private persons or enterprises. It is exclusively applicable to judicial and quasi-judicial bodies.

Brij Khandelwal v. Union of India ^[17]

The Delhi High Court refused to issue a prohibition against the Central Government from engaging in a boundary dispute agreement with Sri Lanka. The judgment was founded on the basis that there is no bar against the government performing executive or administrative duties. With the idea of natural justice and the growth of the concept of fairness, there is no longer a tolerable view, even in administrative tasks. The stiffness about certiorari or prohibition writ has also been softened. If any of the grounds on which the writ of prohibition is issued is present, the writ can now be issued to anybody, regardless of the nature of the duty fulfilled by it. Prohibition is currently considered as a broad remedy for judicial control of impacting quasi-judicial as well as administrative actions.

Certiorari

Certiorari literally means, “to be fully informed of” A writs of certiorari may be issued by a superior court requiring that the record of the proceedings in some cause or matters pending before the inferior court should be transmitted to the superior court to be dealt with there.

In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced

In Province of Bombay v/s Khushaldas^{^[18]}

In this case it was held that whenever anybody of person having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially acts in excess of their legal authority, a writ of certiorari will lies. it does not lie to remove merely ministerial act or to remove or cancel executive administrative acts. Writ lies on Judicial bodies one of the fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be availed of only to remove or to adjudicate upon the validity of judicial acts. the expression judicial acts includes the exercise of quasi-judicial functions by administrative bodies or authorities or persons obliged to exercise such functions and is used in contrast which are purely ministerial acts. the supreme court has laid down two propositions for ascertaining whether an authority is to act judicially

Quo warranto

The maxim quo warranto means “by what authority” and this writ is issued to prevent a ‘usurper’ from wrongfully occupying a substantive public office, enjoying certain privileges and franchise from that public office, when he does not have the authority to do so. The person being appointed to the public office must show by what authority he occupies it, in order for it to be considered a valid appointment.
The writ of quo warranto can be issued under the following cases:

When a public office (created by law or the Constitution) is occupied by a private person, who does not actually have the authority to do so.
The public office must be substantive in character. The duties connected to the office must also be public in nature.
The usurper, whose authority is being challenged, must be holding his position at the time the challenge is made.
Even if a person was qualified at one point of time, the writ of quo warranto can be issued against him if he loses his qualifications.

In G.D Karkare v. T.L Shevde,^{^[19]}

the appointment of a non-applicant as Advocate-General of Madhya Pradesh by the Governor was challenged. The non-applicant had already crossed the age of 60 and retired from his post as a High Court Judge. As such, based on Article 165(1), since he was no longer a High Court Judge, he was not qualified to be appointed as Attorney-General. Here, the Court observed that it was not merely confined to enforcing fundamental rights based on Article 226(1). The phrase “for any other purpose” in Article 226 empowered the Court to act on any object it considered appropriate and in the exercise of its powers. There is no reason that the same cannot be applied to issuing the writ of quo warranto.

Judicial Activism

Under the Indian Constitution, the State is under the prime responsibility to ensure justice, liberty, equality and fraternity in the country^[20]. State is under the obligation to protect the individuals’ fundamental rights and implement the Directive Principles of State Policy. In order to restrain the State from escaping its responsibilities, the Indian Constitution has conferred inherent powers, of reviewing the State’s action, on the courts. In this context, the Indian judiciary has been considered as the guardian and protector of the Indian Constitution. Considering its constitutional duty, the Indian judiciary has played an active role, whenever required, in protecting the individuals’ fundamental rights against the State’s unjust, unreasonable and unfair actions/inactions. Black’s Law Dictionary defines judicial activism as: “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent”

In Fertilizer Corporation Kamgar Union v. Union Of India ^{^[21]}

In this case Hon’ble Supreme court held that the power of the Supreme Court under Article 32 is an integral part of the basic structure of the Indian Constitution “because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.” It cannot be suspended even during emergency

In Vishaka v. State of Rajasthan, ^{^[22]}

In this case Hon’ble Supreme Court held that in the “absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution.”

Rupa Ashok Hurra v. Ashok Hurra, ^[23]

In this case Hon’ble Supreme court held that curative petition has been invented by the higher judiciary in order to prevent abuse of process or to cure gross miscarriage of justice. It is also maintainable in case of violation of the principles of natural justice.

Judicial activism and shift from locus standi to public interest litigation

Access to justice is a fundamental aspect of rule of law. If the justice is not accessible to all, establishment of the rule of law is not possible. The individuals fail to reach justice system due to various reasons including lack of basic necessities, illiteracy, poverty, discrimination, privacy, poor infrastructure of the justice system, etc. The Supreme Court of India has recognised in many landmark judgments that access to justice is a fundamental right.12 Indian Judiciary has played an active role in ensuring access to justice for the indigent persons, members belonging to socially and educationally backward classes, victims of human trafficking or victims of beggar, transgender, etc.

In Fertilizer Corporation Kamgar Union v. Union of India, ^{^[24]}

In this case Hon’ble Supreme court held that public interest litigation is part of the participative justice.

Conclusion

In the hands of the Supreme Court PIL in India has taken a multidimensional character. The deep-rooted ill-disposed framework has been given a pass by. With the coming of legal activism, letters, paper reports, dissensions by open lively people, social activity bunches conveying to the notice of the Court in regards to infringement of major rights were managed regarding them as writ petitions and the alleviation of pay was additionally allowed through writ jurisdiction.

Article 32 gave to the subjects are the incredible powers with prompt impact. Furthermore, the writs are generally summoned against the state and are issued when PILs are recorded. The Writ Jurisdictions which are presented by the Constitution, however, have privilege controls and are optional in nature but then they are unbounded in its breaking points. The carefulness, in any case, is practiced on legitimate standards.

Hence, obviously immense forces are vested with the Judiciary to control a managerial activity when it encroaches fundamental privileges of the subjects or when it goes past the soul of Grundnorm of our nation i.e Constitution of India. It guarantees the Rule of Law and appropriate check and equalizations between the three organs of our vote-based framework. The rationality of writs is very much synchronized in our Constitutional arrangements to guarantee that privileges of nationals are not smothered by a self-assertive authoritative or Judicial activity.

WRITTEN BY: HIMANSHU KUMAR