Article 32

This article gives the fundamental right to a person in cases of a violation of a fundamental right. The importance of the article 32 can be seen from the fact that without that article, the other fundamental rights would lose their very essence.

Article 32 reads as follows:

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, which ever may be appropriate, for the enforcement of any law 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. right guaranteed by this article shall not be suspended except as otherwise provided for by this constitution.

The basic issues pertaining to this article are:

I). scope and ambit of the various writs

Ii). meaning of the word “appropriate proceedings”

• Scope and ambit of the various writs.

Introduction

Writ jurisdiction is extraordinary because it is vested only in court of record. writ jurisdiction has been taken from court of Kings bench in England

Writ means to write order. Supreme Court can issue 5 writs for only 7 fundamental rights. but High Court can issue writ for fundamental or any other legal right if alternate remedy is available.

Nature of Writs

1. Writ of Habeas Corpus:

The purpose of this writ is to free a person from unlawful arrest I.e. violation of article 21 and 22 whether it is police arrest or private arrest. there is another importance of this writ, if one court refuses other court may allow this writ. In it both parties are summoned and if detention is legal, writ is refused, if detention is illegal detenue is released from the court itself and their detaining authority may be called upon to pay compensation also.

Writ of Quo Warranto:

Elements:

• 1. For illegal selection or illegal election this writ is issued
  2. post should be a public post
  3. after hearing both the parties quote determines the legality of election or selection

Writ of mandamus:

Elements

• 1. it is issued only against executive Department or officer, example executive functions of Corporation.
  2. when above have not fulfilled legal or public duties
  3. the petitioner has suffered, and then this writ is issued after hearing the petitioner and the respondent.

Writ of Certiorari

Writ of prohibition:

Elements:

• 1. both these writs are issued against subordinate judiciary
  2. this writ quashes the illegal decisions of subordinate court
  3. Illegal decisions are of three kinds
     1. lack of jurisdiction
     2. Patent error of law
     3. violation of natural justice

Difference between certiorari and prohibition

Both writs are issued against illegal proceedings of subordinate courts. The only difference is that in surgery illegal judgment has been pronounced which is set aside in prohibition. illegal proceedings are pending. Then writ court transfers the case to competent court.

• As to “Appropriate Proceedings”

The basic issue relating to this topic is that two requirements vis –a- vis the Supreme Court are juxtaposed.:

1. The Supreme Court as the protector and guarantor of the fundamental rights, it’s sacrosanct and paramount duty to protect the fundamental rights of person.
2. the procedural requirement of locus standi (cause of action) for a person to bring his matter before the Court. Notably, a strict adherence to this requirement would render many cases unheard by the court in light of the socioeconomic discrepancies in the country.
3. court has resolved the issue by leaning in favor of the first aspect. drawing clue from the words appropriate proceedings. it has ruled that appropriateness of a proceeding has to be decided not in light of any procedural technicalities; rather its meaning has to be controlled by the purpose of article 32 ( protection and guarantee of fundamental rights). in the light of above, the court has liberalized the requirement of locus standi, and has developed the concept of public interest litigation. any person who has sufficient interest and is acting pro bono publico, can bring the matter to the notice of the court. The judicial development of the concept can be traced as follows:

Cases:

1. Ratlam municipality versus Virdi chance 1980
2. ABSK Sangh (Rly) V. UOI (1981) : Class action, PIL, Prepresentative Proceedings
3. SP Gupta vs UOI (1982) : Strict PIL-Pro Bono Publico-Letter to the court is sufficient-Duty of Supreme Court>Procedural Technicalities-Sufficient interest-There won’t be an enormous increase in Litigation
4. Cautious approach-PIL not to be allowed to be abused.
5. Bqandhua Mukti Morcha vs UOI (1984)- Enforcement of Labor Laws- Stone quarries in Faridabad-PIL By letter to the Court-Power to appoint an enquiry commission.
6. MC Mehta vs UOI 1987-(Escape of oleum gas from Shriram Food and Fertilizers Industries)-Letter even to Single Judge-Even Compensation

Power of Supreme Court

Know the Law:

Constitution of India, Article 32 – Powers of Supreme Court – It is only on facts admitted or taken as proved that the question of the violation of a fundamental right can be decided by the SupremeCourt under Article32 , because when facts are in dispute, the matter has to be enquired into and decided by proper legal proceedings.

Constitution of India, Article 32 – Judicial review – Powers of Supreme Court – Abuse of discretionary quota by Minister of State for Petroleum – Matter not raised on the floor of House of People – Not immune from judicial scrutiny by SupremeCourt under Article 32 of the Constitution of India.

Constitution of India, 1950 Articles 32 and 226 Judicial review – Judicial review is part of basic structure of Constitution – Power of judicial review vested in High Courts and Supreme Court cannot be taken away – Power of judicial review vested with High Court even with regard to order passed by AFT – Said power is part of basic structure of Constitution.

Power of Supreme Court under Article 32 for Transfer of Case:

Constitution of India, 1950 Article 32 , 136 and 142 Civil Procedure Code, 1908 Section 25 Divorce petition – Transfer – Supreme Court is not powerless to transfer petition from State of Jammu & Kashmir to any other State and vice versa – Such power can be exercised under Article32 or Articles 136 and 142 of Constitution of India – In interest of justice and in facts and circumstances of case, treating transfer petition as one filed under Article 32 of Constitution of India SupremeCourt allowed transfer of Divorce Petition pending in Court of Addl.District Judge, Srinagar, to Court of District Judge, Amritsar, Punjab.

Civil Procedure Code, 1908 Section 25 Constitution of India, 1950 Article 139A Criminal Procedure Code, 1973 Section 406 Constitution of India, 1950 Articles 142 and 32 :-

Supreme Court has power to transfer a civil or criminal case pending in any Court in the State of Jammu and Kashmir to a Court outside that State and vice versa even if there is no provision under C.P.C or Cr.P.C for transfer of cases from or to the State of Jammu and Kashmir to subserve interest of justice – Held :-

1. Even if the provision empowering courts to direct transfer from one court to other were to stand deleted from the statute, the superior courts would still be competent to direct such transfer in appropriate cases so long as such courts are satisfied that denial of such a transfer would result in violation of the right to access to justice to a litigant in a given fact situation – 1991 (4) SCC 584 Relied.

Constitution of India, 1950 Article 32 and 145 Supreme Court Rules, 2013, Order 6 , Rule 1 , 2 and 4 – Constitution of Bench – Issuance of writ – No mandamus can issue to direct body or authority which is vested with rule making power to make rules or to make them in particular manner – SupremeCourt been authorised under Article 145 to frame rules of procedure – Mandamus of nature sought by petitioner cannot be issued.

Power of Supreme Court and High Court in directing De novo Trial.

Constitution of India, 1950 Articles 226 and 32 Criminal Procedure Code, 1973 Section 386 De novo trial – Power to direct – Normally retrial has to be ordered by Appellate Court while dealing with validity and correctness of judgment of trial court – However, in exceptional circumstances, such power can be exercised by High Court under Article 226 or by SupremeCourtCourt under Article 32 of Constitution of India – Powers plenary in nature meant to do complete justice and to inhibit travesty of justice.

Power of Supreme Court in exercising power of Remission

Constitution of India, 1950 Articles 161 and 72 Exercise of power of remission – Whether the “appropriate Government” is permitted to exercise the power of remission under Sections 432 /433 of the Code after the parallel power has been exercised by the President under Article 72 of the Government under Article 161 or by SupremeCourt in its constitutional power under Article 32 as in this case? – Held :-

(i) It is permissible to the appropriate Government to exercise the power of remission under Section 432 /433 Cr.P.C. even after the exercise of power by the President under Article 72 or the Governor under Article 161 or by this Court in its constitutional power under Article 32.

Criminal Procedure Code, Sections 432 , 433A and 435 – Constitution of India, Articles 72 , 161 and 32 – Death sentence awarded to accused but commuted to life imprisonment – Whether once power of remission under Articles 72 or 161 or by SupremeCourt exercising Constitutional power under Article 32 is exercised, is there any scope for further consideration for remission by the executive – This and other following questions referred to constitution Bench – The Bench also asked to decide the correctness of the verdict of another three-judges Bench in Swamy Shraddanananda Case (2008(3) RCR (Criminal) 772 : 2008(4) Recent Apex Judgment (RAJ) 480) and alongwith it examine the decision of the Constitution Bench in Bhagirath :-

(i) Whether imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (2008(3) RCR (Criminal) 772 : 2008(4) Recent Apex Judgments (R.A.J.) 480), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?

(ii) Whether the “appropriate Government” is permitted to exercise the power of remission under Section 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its Constitutional power under Article 32 as in this case?

(iii) Whether Section 432(7) of the Code clearly gives primacy to the executive power of the Union and excludes the executive power of the State where the power of Union is co-extensive?

(iv) Whether the Union or the State has primacy over the subject matter enlisted in List II of Seventh Schedule of the Constitution of India for exercise of power of remission?

(v) Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code?

(vi) Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section if, yes whether the procedure prescribed in sub-clause (2) of the same Section is mandatory or not?

(vii) Whether the term “consultation” stipulated in Section 432(1) of the Code implies “concurrence”?

Also Check: Basic Structure of Constitution of India