Discouraging petitions under the Article 32

Context:

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

● The Supreme Court said it was trying to discourage the use of a provision that allows incarcerated people to directly approach the top court against violation of their fundamental rights as it felt that high courts were well-equippedto deal with such matters.

Probable Question:

1. Article 32 is one of the greatest safeguards that can be provided for the safety and security of the individual. Critically Analyse.

About Article 32 of the Constitution:

● Article 32 allows an individual to approach the Supreme Court if she or he believes that her or his fundamental rights have been violated or they need to be enforced.

● It states that the Supreme Court shall have the power to issue directions or orders or writs for the enforcement of any of the rights conferred by this part.

● The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.

● During the Constituent Assembly debates in December 1948, Dr B R Ambedkar had said that it is the very soul and heart of the Indian Constitution.

Enforcement of fundamental rights:

● Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through various writs.

Types of Writs

Habeas  corpus: Considered to be among  the most important writs for personal liberty, habeas corpus means to ‘produce the body ‘. It is invoked  to seek relief in cases where a person has been unlawfully detained. Individuals can file habeas corpus petitions if they believe they have been     wrongfully imprisoned.

Mandamus: The writ of mandamus is issued by a  higher court to a lower court or a government official or body, directing     them to perform duties that they have refused to do.

Certiorari: A superior court issues a certiorari   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 opposition to the procedure established by law.

Prohibition: The writ of prohibition is to stop a lower court from going ahead with certain procedures to ensure that it does not exceed its jurisdiction.

Quo warranto: This writ is issued to prevent people from assuming positions in public office when she or he is not entitled to it.

● 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 the violation of fundamental rights, an individual can approach the High Court under Article 226 of the Supreme Court directly under Article 32. Article 226, however, is not a fundamental right like Article 32.

Landmark Supreme Court Judgements:

● In Romesh Thappar vs State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights. “This Court has thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,” the court observed.

● During the Emergency 1975, 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.

● In 1986, a five-judge Constitution bench in S.P. Sampath Kumar observed that the powers of the apex court under Article 32 was part of the Constitution’s basic structure.

● In 1997, a seven-judge Constitution bench in L Chandra Kumar reiterated that the jurisdiction conferred upon the Supreme Court under Article 32 of the Constitution was an essential and integral feature and “is part of the inviolable basic structure of our Constitution”.

Article 32 and National Emergency:

● The 44th Constitutional amendment stated that according to Article 359, the president could issue orders suspending the right to move any court for the enforcement of fundamental rights, under Article 32, during a national emergency, except Article 20 (which deals with the protection of certain rights in case of conviction for offences) and Article 21 (protection of life and personal liberty).

● It also altered Article 359 to say that during an emergency one could approach the Supreme Court to issue habeas corpus writs.

Conclusion:

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