Article 32 of the Indian Constitution: Right to Constitutional Remedies | UPSC Notes

"Article 32 is the heart and soul of the Constitution"- Dr B.R. Ambedkar

Article 32 is the most important Fundamental Right of the Constitution, ensuring that all the rights are enforceable. It allows any citizen to directly approach the Supreme Court when their rights are violated. It is the strongest safeguard of individual freedoms in Indian democracy.

Article 32 is a high-yield topic for UPSC Prelims (writs, constitutional remedies) and GS Paper II of Mains (judicial review, role of the Supreme Court). Let’s study the topic in detail!

Article 32 is a fundamental right (Part III) that guarantees every Indian citizen the power to directly approach the Supreme Court of India whenever their fundamental rights are violated.

• The Supreme Court is the ultimate protector and guarantor of fundamental rights.
• Under Article 32, the Supreme Court has the authority to issue five types of writs:

1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo warranto

• Article 32 can be suspended only during a national emergency under Article 359.
• This suspension does not apply to the fundamental rights under Articles 20 (protection in respect of conviction for offences) and Article 21 (protection of life and personal liberty).
• The Supreme Court has mandatory jurisdiction under Article 32. It cannot refuse to hear a petition if fundamental rights are violated.
• Article 32 has been declared part of the basic structure of the Constitution, meaning it cannot be removed or destroyed even through constitutional amendments.
• The High Court, under Article 226, possesses similar powers to issue writs within its territorial jurisdiction.

Also read: Fundamental Duties (Article 51A) in the Indian Constitution | UPSC Polity Notes

The main objective of Article 32 is to provide citizens with an effective and guaranteed way to protect their Fundamental Rights.

• To offer citizens an immediate and effective remedy when their Fundamental Rights are breached.
• To uphold the rule of law by ensuring that guaranteed rights are not merely theoretical, the court can intervene to enforce them.
• Enable the SC to examine and, if necessary, strike down laws or actions that violate Fundamental Rights.
• To stop the government from acting unfairly by allowing people to directly approach the Supreme Court.
• To protect people’s freedoms and keep the rule of law strong through the judicial system.

Also read: Constitutionalism in India | UPSC Polity Concepts

Article 32 consists of four main clauses that together form the backbone of India's constitutional remedy system.

Clause 1 - Right to Move the Supreme Court

• Guarantees every citizen the fundamental right to move the Supreme Court for the enforcement of fundamental rights.

Clause 2 - Supreme Court's Power to Issue Writs

• Empowers the Supreme Court to issue directions or orders or writs – including habeas corpus, mandamus, prohibition, quo warranto and certiorari.

Clause 3 - Empowerment of Other Courts

• Allows Parliament to authorise courts other than the Supreme Court (such as High Courts) to issue writs similar to those under Article 32.

Clause 4 - Suspension During National Emergency

• Under Article 359, the President can suspend the enforcement of Article 32 during a Proclamation of Emergency.
• Even during suspension, core rights like Article 20 and Article 21 cannot be suspended.

Also read: Article 21 UPSC Notes: Protection of Life and Personal Liberty | UPSC Polity Fundamental Rights

The Supreme Court uses five types of writs to enforce fundamental rights. These are formal written orders that serve as powerful tools against constitutional violations.

1. Habeas Corpus - "You Shall Have the Body"

• This writ is issued to prevent unlawful detention and protect personal liberty. It commands authorities to produce a detained person before the court to determine the legality of detention.
• To protect personal liberty and prevent unlawful imprisonment or detention by the state or any authority.
• Example: If police arrest someone without a proper warrant or detention procedures, habeas corpus ensures immediate court intervention.

2. Mandamus - "We Command"

• This writ commands a public official or government body to perform a legal duty that they have failed or refused to discharge. It directs activity and ensures compliance with the law.
• Issued against public authorities, officials, or quasi-judicial bodies.
• Example: If a government department wrongfully refuses to issue a license or certificate to an eligible person, mandamus can be used to compel its issuance.

3. Certiorari - "To Be Informed"

• A superior court issues this writ for the re-examination of an action or decision by a lower court.
• It is invoked when a judgment has been delivered in violation of principles of natural justice or in opposition to the procedure established by law.
• Example: If a tribunal passes an order without hearing the affected party, certiorari can quash that order.

4. Prohibition - "We Prohibit"

• The writ of prohibition is issued by a higher court to a lower court or quasi-judicial body to prevent them from exceeding their jurisdiction or acting illegally.
• Directs the authority to stop acting beyond its jurisdiction or authority.
• Acts as a preventive measure compared to certiorari, which is corrective.
• Example: If a subordinate court is about to hear a case beyond its territorial jurisdiction, prohibition can stop those proceedings.

5. Quo Warranto - "By What Authority"

• This writ is issued to prevent people from assuming positions in public office when they are not entitled to them.
• Applicable only to public offices, not private positions.
• It can be issued when someone exceeds their term, loses eligibility, or never had proper authority.
• Example: If a person continues as a government official after retirement or when they don't meet eligibility criteria, quo warranto can remove them.

Note: Prohibition is issued before or during proceedings to stop illegal action, while Certiorari is issued after proceedings conclude to quash illegal orders.

Also read: Preamble of India UPSC Notes: Meaning, Objectives, Resolution & Landmark Cases Explained

The Supreme Court has treated Article 32 as one of the most important parts of the Constitution and has strengthened it through many key judgments.

1. Article 32 as Part of Basic Structure - L. Chandra Kumar v. Union of India (1997):

• The Supreme Court said that Article 32 is part of the basic structure of the Constitution.
• This means Article 32 cannot be removed or limited, even by a constitutional amendment.
• Parliament may create tribunals or other bodies to handle cases, but they cannot take away the Supreme Court’s power under Article 32.

2. Article 32 as "Guaranteed" Remedy - Romesh Thappar v. State of Madras (1950):

• Article 32 gives a guaranteed remedy, while Article 226 is discretionary.
• Any citizen can directly go to the Supreme Court if their Fundamental Rights are violated.
• The Supreme Court cannot refuse to hear an Article 32 petition in such cases.
• This makes the Supreme Court’s role under Article 32 mandatory and protective, not just advisory.

3. Article 32 During Emergencies - ADM Jabalpur v. Shivakant Shukla (1976):

• During the 1975 Emergency, the Supreme Court ruled that Article 32 could be suspended, meaning people could not enforce their Fundamental Rights.
• After the 1977 elections, the new government passed the 44th Amendment.
• It changed Article 359 so that even during an Emergency, people could approach the Supreme Court for habeas corpus.
• This ensured that protection against illegal detention would still be available, even if other rights were suspended.
• The 44th Amendment also clarified that Articles 20 and 21 cannot be suspended, even during an Emergency.

Also read: DPSP UPSC Complete Notes: Articles, Classification, Features & Criticism

Both the Supreme Court (Article 32) and High Courts (Article 226) can issue writs to protect Fundamental Rights, but their powers are different. Let’s understand these differences!

Article 32 forms the backbone of constitutional protection in India, and its significance extends far beyond legal procedures.

• Guardian of Fundamental Rights: Article 32 transforms fundamental rights from mere constitutional aspirations into living, enforceable legal entitlements.
• Direct Access to Justice: Article 32 provides direct access to the Supreme Court, ensuring immediate relief in urgent situations where fundamental rights are threatened.
• Judicial Review and Accountability: Empowers the judiciary to exercise judicial review over government actions, administrative decisions, and legislative actions.
• Protection Against Arbitrary State Power: It acts as a check on the arbitrary exercise of state power by allowing citizens to challenge government actions that violate fundamental rights.
• Enforcement of Constitutional Values: Through Article 32, courts have been able to enforce constitutional values and principles that protect human dignity, equality, and justice.
• International Standing: India's commitment to protecting fundamental rights through Article 32 enhances India's standing in international human rights forums.

Article 32 needs to keep evolving so it can protect people’s rights effectively while staying practical and strong as a key safeguard of Fundamental Rights.

• Reduce Supreme Court case backlogs through fast-track Article 32 procedures.
• Expand free legal aid for economically disadvantaged citizens.
• Maintain consistency in accepting Article 32 petitions.
• Address modern violations: cyber crimes, privacy breaches, and digital surveillance.

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