“If I was asked to name any particular article in this Constitution as the most important- an article without which this Constitution would be a nullity— I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.”
These are words of Dr. B. R. Ambedkar when one asked him that which is the most article in the Constitution of India. But recently the saviour of the heart and soul of the Constitution- Judiciary, raised their hands and told that they are not particularly entertaining any petition under Article 32 as there are many petitions and it is overburdening for the Apex Court to entertain all of them. Also, they state that since petitions can also be put in High Courts under Article 226. Before moving into detail what the Apex Court said about Article 32 and its journey with amendments and changes let us first take a brief look into the article and enjoy the beauty of the rights which were given to us but we are not allowed to use.
ARTICLE 32: AN OVERVIEW
Article 32 gives rights to an individual to pursue justice in a court whenever the individual thinks that his right have been encroached on or ‘unduly deprived’. The supreme court has the power to restore the rights which an individual is deprived from and the right is protected by the Constitution of India. The article contains other constitutional rights in Part III of the Constitution, including democracy, freedom of speech and expression, life and personal liberty, and freedom of religion. And only if any of these fundamental rights are being violated then an individual, under Article 32, can directly approach the Apex Court.
Writs under article 32:
According to Article 32 the high court and the supreme court can be approached in case of infringement of fundamental rights. There are five types of writs which can be issued by the Supreme Court for the restoration of the rights guaranteed under the Part III of the Constitution are as follows:
1) Habeas Corpus: This means that ‘produce the body’. The main use of this is writ is to claim against the unlawful detention of an individual. This can be filed by the individual or any other person related to that individual who is unlawfully detained.
2) Quo Warranto: It refers to ‘By what means. Under this writ the court asks public officers to answer by what authority the person has assumed the office. And if the person’s authority is defective then the person has to leave the public office
3) Mandamus: It means ‘We Command. The writ is issued to command government organizations or laws, statute for performance of public duty.
4) Certiorari: It refers to be certified. This writ is issued by Supreme Court and High Court for the lower courts asking for review of judgements to check whether the judgement given by the court is illegal or not.
5) Prohibition: The word means ‘to prevent or to prevent. This is issued before the lower court which have announced the judgement and forbids the particular judgement to be illegal. This writ can only be issued against judicial orders and authorities only.
HISTORY OF ARTICLE 32
In the case of L. Chandra Kumar v Union of India and Others it was observed that Article 32 was a basic and necessary function of the Constitution and constituted its basic structure. In the case of S. P. Sampath Kumar v. Union of India, it was held that the powers of the Supreme Court under Article 32 formed part of the basic structure framework of the Indian Constitution. In the a five-judge bench of the Supreme Court in case ADM Jabalpur v. Shivakant Shukla ruled that during the national emergency period the right to constitutional remedy remains suspended. Citizens are powerless to obtain reform or remedy to their fundamental as well as human rights compliance.
Over all this the 42nd amendment took power for entertaining the right to constitutional redress during emergency but which was again taken back in 43rd amendment which repealed Article 32A immediately after the emergency was revoked. After this amendment, the Supreme Court once again got the power to quash the state laws and the High Courts in return gained the power to question the constitutional validity of central laws.
After the expansion of Public Interest Litigation (PIL), Article 32 became the basis for petitions of welfare and interest for the public where the petitioner himself has not necessarily individually suffered a violation of his fundamental rights. This means that Writs and PILs can be filed by anyone and it is not necessary that the party filing it should be the aggrieved party.
Until this we can easily get to know the importance of this Article 32. But recently our former CJI S A Bobde said that the Apex Court is “trying to curb” citizens from filing petitions under Article 32 of the Constitution. Now the former CJI says that the Supreme Court is trying to discourage petitions under Article 32 and is planning to give more powers to the high courts in matter related to the exercising individual’s power to protect the rights of individuals. Why then, did it act differently in the case of Arnab Goswami?
Goswami’s case under Article 32 was obviously the rarest of the rare for the SC to have entertained it as it included a high-profile journalist. On November 11, Goswami was granted interim bail by the SC. Even though the court had asked every high court to exercise its jurisdiction to protect liberty, the ultimate reason for the existence of such courts as constitutional courts, the SC held that the Bombay high court had stumbled in rejecting Goswami’s bail application. But when it came to Journalist Siddique Kappan’s case, and other, all three were arrested when they were heading towards Hathras in UP, to collect the report of an incident of claimed gang rape and murder. The UP police alleged that Kappan was there for a conspiracy to inflame the sentiments of Hathras group. For the same case a writ petition was filed under Article 32. But the CJI as said earlier that the Apex Court is trying not to entertain petitions under Article 32 and in that instant case that the matter should be transferred to the UP high court.
HAVE DISCRIMINATION AGAINST HAVING A FUNDAMENTAL RIGHT?
Digging deeper into the Goswami case which issued a notice to the Assistant Secretary of the Maharashtra Legislative Assembly, and the notice observed that the right of a citizen to approach the apex court is a fundamental right under Article 32 of the Constitution. And it was also reported that
“There is no doubt that if a citizen of India is deterred in any way from moving the court in exercise of his right under Article 32, it would amount to a serious interference in the administration of justice in the country.”
BUT CAN THE COURT REALLY DISCOURAGE PETITIONS FILED UNDER ARTICLE 32?
In 1950 the Advocate-General of Madras raised an objection for the petition filed by Romesh Thappar by saying the petitioner should have first filed a petition under Article 226 in Madras High Court and if he wasn’t satisfied there he could have further gone to the Supreme Court and filed writ under Article 32. In addition to the statement, further says that the general procedure is first to go to lower court and if not satisfied with the justice rendered then can appeal to the Supreme Court. The court held that “Article 32 guarantees a remedy for the rights infringed and guaranteed remedy itself is a right embedded under Part III of the Constitution. Thus, this Court can be tagged as the protector and guarantor of the fundamental rights and also is responsible for the refusal of applications which contravenes the fundamental rights.
By this statement it was made clear that any individual can move to the Apex Court to get protection from the breach of their fundamental rights under Article 32 and get the guaranteed remedy for the same. And also, why should we particularly focus on the statement made in 1950 when we have the statement made in 2021 by the CJI himself. But what made this an issue is that the statement made by CJI is contradictory. As for Goswami case he says that people should come to court when there is infringement of fundamental rights and on the other side, he says that the court is trying to discourage the petitions filed under Article 32 for the Kappan case. But in between these two cases there is another case in 2003, Union of India vs Paul Manickam, the apex court held that Article 32 can be invoked directly when the petitioner shows that why he approached the apex directly rather than first approaching the high court under Article 226. And if the CJI said the statement on this ground then we can’t this justification because it only says that the petitioner needs to give a reason regarding why didn’t he approached the High Court rather than directing the Apex Court to not to take the case itself. And also, what is important is that following the Constitution is more important rather than following a judgement. The reason being that the Constitution does not mandate that a person has to first move to the high court under Article 226 and then advance towards the Supreme Court. And the court is asking to do so then there must lie a specified legal valid reason.
If there is an argument that Article 32 petitions are to be discouraged when there is a chance of invoking Article 226, then it should be uniform for every petitioner and there should be a set of guidelines on what will be considered valid reasons to come to the top court directly, these should also be lucid and harmoniously applied in all cases. This is not the only comparison of getting and not getting the justice. In cases like Varavara Rao one where the journalist was kept in custody for a long time and allegations are not proven to be right. During the whole period he was kept in jail, he got Covid positive, and was having a lot of medical issues but no bail has been granted even after appealing to the Supreme Court. While a high-profile journalist was given the right to apply under Article 32, but Varavara Rao, aged-81 years and suffering from multiple medical issues, has been in jail since 2018 November places no consideration and leads to petition. Surely, we can say that this is not what exactly the maker of our constitution would have predicted would be the fate of the common man struggling to get the rights guaranteed by the Constitution while filling writs under the Article 32, which upholds the right for all and not for a favoured few like Goswami’s case. Article 32 according to the founders of Constitution was the heart and soul and which not only dealt with individual’s infringement of rights but also took PILs into consideration like the one filed by Laxmi Agarwal for the acid survivors and liquor shops away from the highways. When Article 32 has this much potential to do and change the society and how van it sometimes fail in not doing the work assigned to it by the judiciary whose duty is to fulfil the same? Thus, now it is the work of the Apex Court to take a just and fair decision regarding this issue and give a concrete idea so that the essence of Article 32 remains the same and citizen will have the faith in judiciary that they will safeguard the rights of every citizen irrespective of their occupational status and their position in the society.