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Supreme Court interpretation of Article 32 over the years

  • IASbaba
  • November 18, 2020
  • 0
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JUDICIARY/ RIGHTS

Topic: General Studies 2:

  • Structure, organization and functioning of the Judiciary

Supreme Court interpretation of Article 32 over the years

Context: Recently, Supreme Court Bench headed by Chief Justice of India S A Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution. 

The observation came during the hearing of a petition seeking the release of journalist Siddique Kappan, who was arrested with three others while on their way to Hathras, Uttar Pradesh, to report on an alleged gangrape and murder.

What is Article 32?

  • It is one of the fundamental rights listed in the Constitution that each citizen is entitled. 
  • Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
  • It states that 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”
  • The Article cannot be suspended except during the period of Emergency.

Significance of Article 32

  • The Article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion. 
  • Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.
  • In the Constituent Assembly debates, Dr. B.R. Ambedkar said that without article 32 this Constitution would be a nullity. He further said that “It is the very soul of the Constitution and the very heart of it”
  • Article 32 is one of the greatest safeguards that can be provided for the safety and security of the individual.
  • Since Article 32 gives a person the right to approach the Supreme Court as a remedy if fundamental rights are violated, “it is a right fundamental to all the fundamental rights” guaranteed under the Constitution.

Can High Courts be approached in cases of violation of fundamental rights?

  • Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs
  • In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court.
  • When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32. Article 226, however, is not a fundamental right like Article 32.

What have been the Supreme Court’s observations on Article 32?

  • In Romesh Thappar vs State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” (SC cannot refuse) remedy for the enforcement of fundamental rights.
  • During the Emergency, in Additional District Magistrate, Jabalpur vs S S Shukla (1976), the Supreme Court had said that the citizen loses his right to approach the court under Article 32

Recent trends

  • In the case of the journalist Siddique Kappan, the court asked why the petitioners could not go to the High Court. It has sought responses from the Centre and the UP government, and will hear the case later this week.
  • In another case invoking Article 32, filed by a Nagpur-based man arrested in three cases for alleged defamatory content against Maharashtra CM Uddhav Thackeray and others, the same Bench directed him to approach the High Court first.
  • In another matter, three-judge Bench of SC had issued a contempt notice to the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice. The court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right 
  • The above instances have been cited by Citizen Activists to criticize the working of Judiciary where access to Justice at apex level is liable to influence and power.

Conclusion

Constitutional experts say that it is eventually at the discretion of the Supreme Court and each individual judge to decide whether an intervention is warranted in a case, which could also be heard by the High Court first.

Connecting the dots:

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