DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

CONSTITUTIONAL LAW – I

SUPREME COURT’S OPINIONS ON

ARTICLE 32: A CRITICAL ANALYSIS

SUBMITTED TO:
Dr. ATUL KUMAR TIWARI
ASSOCIATE PROFESSOR (LAW)
Dr. RAM MANOHAR LOHIYA
NATIONAL LAW UNIVERSITY

SUBMITTED BY:
TEJASSWINI L
ENROLLMENT NO. 210101156
Dr. RAM MANOHAR LOHIYA
NATIONAL LAW UNIVERSITY
Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

DECLARATION

I hereby declare that the research paper on ‘Supreme Court’s Opinions on Article 32: a Critical
Analysis’, submitted in partial fulfilment of the requirements for the award of degree of B.A.
LLB. (Hons.), to Dr. Ram Manohar Lohiya National Law University, is the original work done
by me under the guidance of Dr. Atul Kumar Tiwari, Associate Professor (Law), Dr. Ram
Manohar Lohiya National Law University. This research work has not been submitted to any
other University or Institute for the award of any degree/diploma/fellowship or other titles.

Tejasswini L

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Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

ACKNOWLEDGEMENT

I express my heartfelt gratitude to my teacher Dr. Atul Kumar Tiwari, the Hon’ble HOD Dr.
A. P. Singh and the Hon’ble Vice Chancellor, Prof. Subir K. Bhatnagar, who gave me the
opportunity to compile and present this research paper on ‘Supreme Court’s Opinions on
Article 32: a Critical Analysis’. I am grateful for my teacher’s valuable insights, guidance and
support in completion of this project.

I am indebted to the librarians of Dr. Madhu Limaye Library, who assisted me in the making
of this project by enabling access to various materials in the online mode.

I would also like to thank my seniors, batchmates and family for their constant support and
assistance in completing this project.

Despite of my best efforts, some discrepancies might have crept into my project. I humbly
request my teacher to kindly forgive the same.

Tejasswini L

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 Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

TABLE OF CONTENTS

HEADING PAGE NUMBER

INTRODUCTION ………………………………………………………….. 4

i. OBJECTIVES
ii. SCOPE

WHAT IS ARTICLE 32? …………………………………………………… 5

WRITS ……………………………………………………………………… 6

PILS UNDER ARTICLE 32 ………………………………………………... 8

COMPARATIVE ANALYSIS ……………………………………………... 9

SUPREME COURT’S OPINIONS ON ARTICLE 32 ……………………… 10

ANALYSIS …………………………………………………………………. 12

REFERENCES ……………………………………………………………... 13

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Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

Introduction
Objectives
The following objectives are sought to be achieved through this project:

• Arrive at a general understanding of the meaning and scope of Art.32

• Explain and analyse the Supreme Court’s opinions on Art.32 as expressed in various
case laws.

Scope

The project begins with a brief introduction to Art.32. it covers the content of Art.32, writs,
PILs under Art.32 and a comparative analysis of Art.32 and Art.226. This is followed by an
elaboration of the Supreme Court’s observations on Art.32 in various cases, which are also
analysed from a critical perspective.

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Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

What is Article 32?

Dr. Ambedkar referred to Article 32 as the “spirit of the constitution and exceptionally heart
of it.”

Part III of the Constitution, which covers individual fundamental rights, includes Article 32. It
enables someone to appeal to the Supreme Court if they feel that their fundamental rights have
been violated or that they need to be upheld.

According to Article 32 of the Indian Constitution, if a person feels that their rights have been
"unduly denied," they have the right to petition the Supreme Court for justice. The Supreme
Court is given the authority to issue directives or instructions for the implementation of any of
the rights granted by the constitution in its capacity as the "protector and guarantor of
Fundamental Rights."

In accordance with Article 32, the parliament may also designate any other court to execute the
Supreme Court's authority if it falls under its purview. The rights guaranteed by this Article
cannot be suspended unless the Constitution is amended. Since the main goal of Writ
Jurisdiction under Article 32 is the enforcement of Fundamental Rights, we can conclude that
this article guarantees individuals an assured right to the enforcement of fundamental rights
because the law grants an individual the right to directly approach the Supreme Court without
having to go through the time-consuming process of first moving to lower courts.

It is further emphasised that, with the exception of the general rights guaranteed by the
Constitution, the right to petition the Supreme Court cannot be restricted. This suggests that
during a national crisis, this power is suspended in accordance with Article 359. The Supreme
Court is designated in Article 32 as the protector and guarantor of fundamental rights.
Additionally, the Apex Court continues to have original jurisdiction over the writ-issuing
authority. This indicates that a person does not need to file an appeal in order to contact SC
directly for a cure. Only the fundamental rights outlined in Articles 12-35 may be addressed
through the use of Article 32. It does not exist for any other legal right for which many laws
are available.

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Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

Writs

What is Writ?

It is a directive issued by a court of justice in writing that takes the form of a letter, sealed with
the court's seal, and addressed to a sheriff or other law enforcement official or directly to the
person whose action the court wishes to command, either as the start of a lawsuit or other
proceeding or as a by-product of it, requiring the performance of a specific act or providing
authority and commission to have it performed.

According to old English law, it is an Instrument In the form of a letter; a letter of attorney.
This is a very old meaning of the term.

In the old literature, “writ” is comparable to “activity,” hence writs are sometimes classified
as genuine, personal, or mixed.

Scots law defines “writ” as- Writing; a written instrument such as a deed, bond, contract, etc.

Constitutional Philosophy of Writ Jurisdiction

A person may seek compensation from the Court if their privilege (Fundamental Right) has
been infringed upon by an arbitrary administrative action. According to Article 32(2) of the
Indian Constitution, “the Supreme Court will have the capacity to issue bearings or requests
or writs, including writs in the concept of habeas corpus, mandamus, prohibition, quo
warranto, and certiorari, whichever may be appropriate, for the requirement of any of the
rights granted by this Part.” Article 32 is a fundamental right enshrined immediately in Part
III of the Constitution.

Types of Writs

The Supreme Court and High Courts have the authority to issue orders or writs under the
Constitution.

The various writs include:

• Habeas Corpus

• Certiorari

• Prohibition

• Mandamus

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Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

• Quo Warranto

1. Habeas Corpus: The writ of habeas corpus is used to defend a person's fundamental
right to liberty against unjustified incarceration. This writ directs a governmental entity
to present a person in custody to the court and provide adequate justification for their
detention. This writ, however, cannot be issued if the procedure is for contempt of a
legislature or a court.
2. Certiorari: In order to reconsider a case and perhaps overturn the lower court's decision,
a writ of certiorari is issued to that court. The Supreme Court issues a writ of certiorari
in the case that a party appeals a lower court's decision. If the higher court finds that
there is a jurisdictional conflict or lack thereof, it is issued.
3. Prohibition: In order to enforce inactivity within the jurisdiction, a higher court may
issue a prohibition writ to a lower court. Only when the higher court rules that the case
falls outside the lower court's purview does it happen. The only entities that may receive
a Writ of Prohibition are judicial and quasi-judicial authorities.
4. Mandamus: A writ of mandamus is sent to a lower court, a government agency, a
business, or another institution to order the performance of specific deeds or tasks.
Unlike Habeas Corpus, a private individual cannot be the target of a mandamus. The
writ of mandamus can be used to direct someone to finish a task or, in rare cases, to
stop doing something.
5. Quo-Warranto: A quo warranto is given to someone who claims or usurps a public
position. This writ is used by the court to determine "by what authority" the person
supports their claim. Using this writ, the court examines a person's eligibility for a
position in government. This injunction forbids anyone from illegitimately holding
public office.

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Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

PILs Under Art.32

When individuals without locus standi in cases were permitted to bring PILs under Article 32
before the Supreme Court, the scope of the provision was significantly expanded. Under Article
32, anyone may file a PIL for the benefit of the general public as well as their own personal
gain or financial advantage.

The justification behind this was that there might be circumstances in which a victim wouldn't
have the means to file a lawsuit if their rights were violated. In these situations, the top court
will either take cognizance of the matter and proceed Suo-motu or will consider a petition filed
on behalf of a person for the benefit of the public.

PIL in India has developed a multifaceted personality under the Supreme Court's control. The
poorly advised structure that was engrained firmly has been avoided. Legal activism led to the
handling of letters, paper reports, disagreements by outspoken people, and social activity
organisations transmitting to the Court of violations of fundamental rights as writ petitions. Pay
relief was also made possible through writ jurisdiction.

With immediate effect, Article 32 gives the subjects unprecedented powers. Additionally, writs
are frequently summoned and issued against the state when PILs are registered. On the other
hand, the Writ Jurisdictions established by the Constitution are unlimited in their breaking
points and subject to privilege constraints. Whatever the case, the vigilance is carried out in
accordance with the law.

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Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

Comparative Analysis of Art.32 and Art.226

The agreement's (contract's) individual rights may not be infringed upon, and Article 32 may
not be used to transfer unsettled disputes that are transferable under other laws. According to
Article 226(1) of the Indian Constitution, “notwithstanding anything in Article 32, every High
Court shall have powers, throughout the territories in relation to which it exercises jurisdiction,
to issue to any person or authority, including in appropriate cases, any Government, within
those territories directions, orders, or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto, and certiorari, or any of them,”.

This essentially implies that despite anything to the contrary in Article 32, every High Court
shall have the authority to issue any person or authority—including, in appropriate
circumstances, any Government—within the territories over which it has jurisdiction
directions, orders, or writs, including writs of habeas corpus, mandamus, prohibitions, quo
warranto, and certiorari, or any of them.

This Article permits a person to petition the High Court for the execution of fundamental rights
as well as the implementation of any other legal right, as is evident from the revealed text. The
High Courts have extensive authority under Article 226. It acts as a significant source of legal
authority to oversee an organisation. Under Article 226, legislation cannot restrict its capacity.
As a result, the forces provided by High Courts under Article 226 of the Indian Constitution
are greater than the forces granted by the Supreme Court under Article 32.

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Supreme Court’s Opinions on Article 32: a Critical Analysis Constitutional Law-I

Supreme Court’s Opinions on Art.32

In a judgment in the L. Chandra Kumar v. Union Of India and Others case, A bench of seven
judges found that Article 32 was a fundamental component of the Constitution and made this
clear in their ruling. Quoting the judgement in this case, “the power of judicial review over
legislative action vested in the High Courts under Article 226 and in the Supreme Court under
Article 32 of the Constitution is an integral and essential feature if the Constitution, consisting
part of its basic structure”.

Similar to this, it was noted in a ruling in the S.P. Sampath Kumar v. Union of India case that
the Supreme Court's powers under Article 32 were an integral component of the Constitution's
fundamental framework. In this case, it was contended that the exclusion of the jurisdiction of
the High Court under Arts. 226 and 227 in service matters specified in Sec.28 of the Act was
unconstitutional and void, and that the composition of the Tribunal and mode of appointment
of Chairman, Vice-Chairman and Members was outside the scope of the power conferred on
Parliament under Art.323-A.

A five-judge Supreme Court bench had held in the case of ADM Jabalpur v. Shivakant Shukla
during the 1975 Emergency that the right to constitutional remedies under Article 32 would be
suspended during a national emergency. People were unable to take legal action to have their
fundamental rights enforced. In this case, the respondents challenged the validity of the 38th
and the 39th Constitutional Amendment Act, the Proclamation of Emergency by the President
under Art.352 of the Constitution made on 25 June, 1975. They challenged the legality and
validity of the orders of their detention in all the cases. The 44th Amendment was passed by
the Janata Party following its victory in the general elections of 1977 in order to “restore the
Constitution to the condition it was in before the Emergency”. According to the amendment,
every modification to the fundamental framework of the Constitution must get a majority of
votes in a referendum in which at least 51% of voters participated. Additionally, it stated that
the president could only declare an emergency after receiving a formal recommendation from
the prime minister and his or her cabinet. The amendment stated that, unlike in 1975, the prime
minister could no longer declare an emergency unilaterally without providing a documented
justification.

While hearing the case of Arnab Manoranjan Goswami v. The State Of Maharashtra, the
Supreme Court had observed that it was the court’s duty, under Article 32, to protect the right

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to freedom of speech and expression. In a plea submitted under Article 32 in May 2020,
Republic TV’s Editor-in-Chief Arnab Goswami asked for the quashing of the FIRs that had
been filed against him.

While hearing the case of Kerala Union of Working Journalists v. Union of India, Chief Justice
of India S.A. Bobde has said that the Supreme Court was trying to discourage people from
approaching it with petitions filed under Article 32, a redressal mechanism in cases where the
fundamental rights of an individual are violated. The Kerala Union of Working Journalists filed
a habeas corpus petition under Article 32 in order to secure the release of Siddique Kappan, a
journalist. When he was on his route to Hathras to report on the alleged gang rape and murder
of a 20-year-old Dalit woman, Kerala-based Kappan was detained on October 5. Under Section
151 of the Code of Criminal Procedure (CrPC), the police had initially detained Kappan and
three other people on the grounds that they may commit some cognisable offence. Later, they
were also arrested for violating the Unlawful Activities Prevention Act and sedition charges
(UAPA).

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Analysis
Dr. Ambedkar once said “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 (Article 32). It is the very soul of the Constitution
and the very heart of it.”

Art.32 is a very important safeguard against arbitrary actions and violations of a person’s
fundamental rights. Fundamental rights are the backbone of liberal democracy and they need
to be protected and guarded.

The Supreme Court is designated as the protector and guarantor of fundamental rights. Article
32 enables the Supreme Court to discharge this function through writs.

In cases like L. Chandra Kumar v. Union Of India and Others, S.P. Sampath Kumar v. Union
of India and Arnab Manoranjan Goswami v. The State Of Maharashtra, the Supreme Court
emphasised on the importance of Art.32 and protection of Fundamental Rights by the judiciary.

However, in the observations made by the court in ADM Jabalpur v. Shivakant Shukla and
Kerala Union of Working Journalists v. Union of India, the importance given to rights was
superceded by practical and technical considerations.

Giving such mixed judgements creates ambiguity in the perceived importance given to Art.32,
which reduces the impact and effect it has on the performance of the very critical function of
enforcement and protection of Fundamental Rights by the Supreme Court.

Thus, the need of the hour is to have a clear and consistent view by the Supreme Court on
Art.32 that is comprehensive and authoritative.

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Bibliography

Article 32: Rights for All or For a Favoured Few?, available at:
https://thewire.in/rights/supreme-court-article-32-ambedkar-arnab-goswami (Last Modified
November 2020)

What is Article 32 which Ambedkar said was ‘heart’ and ‘soul’ of Constitution, available at:
https://theprint.in/theprint-essential/what-is-article-32-which-ambedkar-said-was-heart-and-
soul-of-constitution/546050/ (Last Modified November 2020)

Analysis of Article 32 of the Constitution of India: Right to constitutional remedies, available

at: https://aishwaryasandeep.com/2022/01/26/analysis-of-article-32-of-the-constitution-of-
india-right-to-constitutional-remedies/ (Last Modified January 2022)

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