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“Right to Constitutional Remedies”: A fundamental right or a privilege?

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A Supreme Court bench headed by Chief Justice of India S A Bobde, on Monday, observed that it is “trying to discourage” people to file petitions claiming provisions of Article 32 of the Constitution of India. The observation was highlighted when the supreme court bench was hearing a petition seeking the release of Siddique Kappan, a popular journalist who was arrested along with three other people on his way to Hathras, Uttar Pradesh. He was on his way to prepare a report on an alleged gangrape and murder.

What is stated in Article 32?

Each citizen is entitled to certain fundamental rights listed in the Constitution and article 32 is a part of that part of the constitution only. Article 32 deals with the ‘Right to Constitutional Remedies’.  This right means that any person, who thinks his right has been violated has the right to move the Supreme Court and can fight for the enforcement of his rights conferred in Part III of the Constitution by following appropriate procedures. The document states that the Supreme Court “shall have the power to issue directions or orders or writs, including writs in the nature of mandamus, prohibition, habeas corpus, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”. Moreover. the right granted to the citizens under this Article “shall not be suspended except as otherwise provided for by this Constitution”.

Article 32 is included in Part III of the Indian Constitution along with other fundamental rights. Other rights include:

  1. Right to Equality
  2. Right to Freedom of Speech and Expression
  3. Right to Life and Personal Liberty
  4. Right to Freedom of Religion

And, under Article 32, when any of these above-mentioned fundamental rights is violated, an individual can approach the Supreme Court directly.

What is the importance of Article 32?

In the early draft of the Indian Constitution, article 32 is referred to as Article 25. In December 1948, when the Constituent Assembly was debating and a discussion on this particular fundamental right was going on Dr. B R Ambedkar had said, “If I was asked to name any particular Article in this Constitution as the most important, I could not refer to any other Article except this one. ” He also believed that Article 32 is “the very soul and the very heart” of the Constitution and without it, the Constitution would be a nullity and that the rights and powers provided to the SC through this Article could not be withdrawn until and unless the Constitution itself is amended, making it “one of the greatest safeguards provided for the safety and security of the Indian citizen”. Other members of the drafting committee also agreed to this.

Since this article bestows a person with the right to approach the SC as a remedy whenever he feels his fundamental rights are violated, it will not be wrong to say that “it is a right fundamental to all the fundamental rights” guaranteed by the Constitution of India.

However, there were deliberations in the Constituent Assembly about whether the fundamental rights including Article 32 could be suspended or limited during an Emergency or not. It was decided that this article cannot be suspended except when an Emergency is imposed.

What were the recent observations by the Supreme Court on Article 32?

Coming back to the case of the journalist Siddique Kappan, the Supreme court raised questions on why the petitioners did not appeal to the High Court. The case will be heard later this week, perhaps till then the responses from the Centre and the UP government shall also be received.

In the previous week itself, another case filed by a Nagpur-based man who was arrested in three cases for alleged defamatory content against Uddhav Thackeray, Maharashtra’s Chief Minister, invoked article 32. The Bench headed by the CJI asked him to approach the High Court first too.

Another petition filed by Telugu poet P Hemalatha, Varavara Rao’s wife, aimed to seek relief under Article 32 for her husband’s detention in jail since 2018. To which, the Supreme Court observed that once a competent court had taken the hold of a matter, the matter shall be decided under its competence and it also asked the Bombay High Court to speed up the hearing on a bail plea filed on medical grounds that has been kept on its table since September.

A Bench of Chief Justice of India SA Bobde, Justice V Ramasubramanian, and Justice A S Bopanna issued a notice of contempt to the Maharashtra Assembly’s Assistant Secretary for questioning Arnab Goswami for approaching the top court against the breach-of-privilege notice. He had asked this in a letter addressed to the Republic TV editor-in-chief, Arnab Goswami. The court then observed that Article 32 is a fundamental right that allows a citizen to approach the Supreme Court. Needless to say, if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to serious and direct interference in the administration of justice in the country”. 

Are these observations any different from the past?

In 1950, in the Romesh Thappar vs State of Madras case, the Supreme Court observed that Article 32 guarantees remedy for the enforcement of fundamental rights and thus, the SC is the guarantor of fundamental rights, and it cannot refuse to entertain files seeking protection against non-compliance of such rights.

During the Emergency, Jabalpur vs S S Shukla (1976), the SC declared that the citizens have lost their right to approach the court provided to them under Article 32.

Therefore, as rightly said by several constitutional experts it is eventually the discretion of the Supreme Court’s current bench to decide whether an intervention, which could also be heard by the High Court first, is warranted in a case.

Can the victim approach a High Court in case his fundamental right/s is/are violated?

Legally, both, the Supreme Court and the High Courts can be approached by the victim to seek a remedy for violation of enactment of fundamental rights. This can be done by filing five kinds of writs:

  1. Habeas corpus: It is related to the right to personal liberty, that is, in cases of illegal detentions and wrongful arrests.
  2. Mandamus: This writ directs governments, public officials, and courts to perform a statutory duty they are obliged to perform.
  3. Quo warranto: This writ is filed to show by what a warrant is a person holding public office.
  4. Prohibition: This writ aims at directing judicial or quasi-judicial authorities to halt the proceedings without any jurisdiction.
  5. Certiorari: It deals with the re-examination of any order given by judicial, administrative, or quasi-judicial authorities.

In the cases of civil or criminal cases, an aggrieved person is entitled to trial courts as their first remedy. The accused can then file an appeal in the High Court followed by the Supreme Court. While in cases when a person’s fundamental rights are violated, he can approach the Supreme Court directly under Article 32. The individual can also approach the High Court under Article 226 even though it is not a fundamental right like Article 32.

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