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Article 32 - Heart and Soul of Indian Constitution
- An unhappy Chief: The CJI of SC noted in 2021 that there was "a spate of Article 32 petitions" and reiterated that the High Court can also uphold fundamental rights (under article 226).
- What it is: The Article 32 of the Constitution (Right to Constitutional Remedies) is a fundamental right, which states that individuals have the right to approach the Supreme Court (SC) seeking enforcement of other fundamental rights recognised by the Constitution. The SC has power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
- Who can suspend it: The right to move the SC shall not be suspended except as otherwise provided for by the Constitution. Thus, the Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency (Article 359).
- Original and Concurrent: In case of the enforcement of Fundamental Rights, the jurisdiction of the SC is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226. It is original, because an aggrieved citizen can directly go to the SC, not necessarily by way of appeal. It is concurrent as when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.
- Guaranteed: Since the right guaranteed by Article 32 (ie, the right to move the SC where a fundamental right is infringed) is in itself a fundamental right, the availability of alternate remedy is no bar to relief under Article 32. However, the SC has ruled that where relief through the high court is available under Article 226, the aggrieved party should first move the high court. In the Chandra Kumar case (1997), the SC ruled that the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic structure of the Constitution.
- Counter-Argument: Even as the SC underlines the powers of the high courts, it has in the past transferred cases to itself from the high courts. Most recently, the SC transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court. Incidentally, the petitioners had not sought such a transfer. When such transfers are made, the petitioners lose a stage of appeal that would otherwise have been available had the high courts heard and decided the case. Recently, the SC also conveyed its concerns that in many matters involving personal liberty, the High Courts are not exercising their jurisdiction as constitutional courts.
- Article 226: This article empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo warranto for the enforcement of the fundamental rights of the citizens and for any other purpose. The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right. This implies that the writ jurisdiction of the high court is wider than that of the SC. This is because the SC can issue writs only for the enforcement of fundamental rights and not for any other purpose. But the high court can issue writs to any person, authority and government not only within its territorial jurisdiction but also outside its territorial jurisdiction if the cause of action arises within its territorial jurisdiction.
- Summary: The founder fathers envisaged an India where fundamental rights would be supreme, and the core of citizen's existence. The individual was given supremacy, over society or religion or community, as clearly reflected in Part III on Rights. The judiciary was appointed the watchdog. Over time, many challenges arrived, and judiciary has tried in various ways to preserve these values.
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