Theoretical overview
Article 32 is considered as the heart and soul of Indian constitution as it provides constitutional remedy for the enforcement of fundamental rights given under part 3 of the constitution. Article 32 is itself a fundamental right. As said by Dr Ambedkar, it is the very heart of Indian constitution without which this constitution would be a nullity.
Article 32(1) guarantees the right to move the supreme court by appropriate proceedings for the enforcement of the right conferred by part 3 of the constitution. The right to the move to supreme court is only available to those, whose fundamental rights are infringed. The power vested in the supreme court can only be exercised for the enforcement of fundamental rights. The granting of an appropriate relief under article 32 is not discretionary, the citizens are ordinarily entitled to appropriate relief under article 32 once it shown that their fundamental rights have been illegally or unconstitutionally violated.
Article 32(2) talks about the supreme court as the protector and guarantor of fundamental rights. The supreme court is empowered to issue appropriate direction, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the fundamental rights guaranteed by part 3 of the constitution. The power of supreme court is not confined to issuing of writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari but also directions and orders which is similar to the writs so far as to fit in with any circumstances peculiar to India. There is no imitation period to approach to the apex court for the remedy.
Under clause 3, the parliament is authorised by law to empower any other court to exercise within the local limits of existing jurisdiction all or any of the powers exercisable by the supreme court under clause 2. According to clause 4 of article 32, the right to move to the supreme court for the enforcement of the fundamental right shall not be suspended except as otherwise provided by the constitution. There is only one situation when this right can be suspended which is the emergency under article 352.
Article 226 and 32
Article 226 empowers the High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, certiorari and quo warranto or any of them for the enforcement of any of the fundamental rights or for any other purpose. It has been held that the words ‘for any other purpose’ mean for the enforcement of any statutory or common law rights. The jurisdiction of the High Courts under Art 226 is wider than that of the Supreme Court under Art 32. The jurisdictions under Art 32 and 226 are concurrent and independent of each other so far as the fundamental rights are concerned. A person has a choice of remedies. He may move either the Supreme Court under Art 32 or an appropriate High Court under Art 226. If his grievance is that a right other than a fundamental right is violated, he will have to move the High Court having jurisdiction. He may appeal to the Supreme Court against the decision of the High Court. After being unsuccessful in the High Court, he cannot approach the Supreme Court under Art 32 for the same cause of action because as said earlier, such a petition would be barred by res judicata. Similarly, having failed in the Supreme Court in a petition filed under Art 32, he cannot take another chance by filing a petition under Art 226 in the High Court having jurisdiction over his matter because such a petition would also be barred by res judicata.
The High Court’s jurisdiction in respect of ‘other purposes’ is however, discretionary. The courts have laid down rules in accordance with which such discretion is to be exercised.
The jurisdiction of the High Court under Art 226 cannot be invoked if:
The petition is barred by res judicata;
If there is an alternative and equally efficacious remedy available and which has not been exhausted;
If the petition raised questions of facts which are disputed; and
If the petition has been made after an inordinate delay.
These rules of judicial restraint have been adopted by our courts from the similar rules developed by the English courts in the exercise of their jurisdiction to issue the prerogative writs.
It is a general rule of the exercise of judicial discretion under Art 226 that the High Court will not entertain a petition if there is an alternative remedy available. The alternative remedy however, must be equally efficacious. Where an alternative and efficacious remedy is provided, the Court should not entertain a writ petition under Art 226. Where a revision petition was pending in the High Court challenging the eviction degree passed against a tenant by the court of the Small Causes, it was held that the High Court should not have entertained a writ petition filed by the cousins of the tenants. The petitioners should have exhausted the remedies provided under the Code of Civil procedure before filing the writ petition. Petitions were dismissed on the ground of the existence of an alternative remedy in respect of elections to municipal bodies or the Bar Council.
When a law prescribes a period of limitation for an action, such an action has to be brought within the prescribed period. A court or a tribunal has no jurisdiction to entertain an action or proceeding after the expiration of the limitation period. It is necessary to assure finality to administrative as well as judicial decisions. Therefore, those who sleep over their rights have no right to agitate for them after the lapse of a reasonable time. Even writ petitions under Art 226 are not immune from disqualification on the ground of delay. Although the law of limitation does not directly apply to writ petitions, the courts have held that a petition would be barred if it comes to the court after the lapse of a reasonable time. This is however, not a rule of law but is a rule of practice. Where the petitioner shows that illegality is manifest in the impugned action, and explains the causes of delay, the delay may be condoned.
Relevant articles
Article 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 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
Article 226.– 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
Important case laws
Romesh Thappar vs. State of Madras,1969 – the powers vested in the supreme court can be exercised for the enforcement of the fundamental right. The court cannot refuse it.
Hussainara Khatoon vs. State of Bihar,1979 – the supreme court held that speedy trial is an essential and integral part of the fundamental right to life and liberty enshrined in art 21.
Jagannath Baksh Singh vs. State of UP, 1962 – the application under article 32 may always be made first to the supreme court since article 32 is itself a fundamental right. There is no need to resort to art 226 before approaching supreme court under article 32. The same question cannot be reopened in art 226 if same has been answered in art 32.
Gulam Sarvar vs. Union of India,1967 – the rule of res judicata is not applicable in the writ of habeas corpus and where the petitioner has been refused a writ from the high court, he may file a petition for the same under article 32.
Points to remember
- Article 32 is considered as the heart and soul of Indian constitution as it provides constitutional remedy for the enforcement of fundamental rights given under part 3 of the constitution.
- Article 32(1) guarantees the right to move the supreme court by appropriate proceedings for the enforcement of the right conferred by part 3 of the constitution. The right to the move to supreme court is only available to those, whose fundamental rights are infringed.
- Article 32(2) talks about the supreme court as the protector and guarantor of fundamental rights. The supreme court is empowered to issue appropriate direction, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the fundamental rights guaranteed by part 3 of the constitution.
- There is only one situation when this right can be suspended which is the emergency under article 352.
- The jurisdictions under Art 32 and 226 are concurrent and independent of each other so far as the fundamental rights are concerned.
- Although the law of limitation does not directly apply to writ petitions, the courts have held that a petition would be barred if it comes to the court after the lapse of a reasonable time.
