Applicability & Scope of Article 32 of Constitution of India

Article 32 of Constitution of India gives the right to move the Supreme Court of India by appropriate proceedings for enforcement of the rights conferred by Part III of the Constitution of India. The provision merely keeps open the doors of the Supreme Court, in much of the same way as is used to be said, the doors of Chancery court were always open.

The Article 32 read as follows:

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(2) 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
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

The State cannot place hindrance in the way of an aggrieved person seeking to approach the Supreme Court. This is logical enough for it is against State action that fundamental rights are claimed. But, the guarantee goes no further at least on the terms of Article 32. Having reached the Supreme Court, the extent or manner of interference is for the court to decide. It is clear that every case doesn’t merit interference. That must always depend upon the facts of the case. In dealing with cases which have come before it, the Supreme Court has already settled many principles on which it acts.

The Supreme Court refrains from acting under Article 32 of the Constitution of India, if the party has already moved to the High Court under Article 226. This constitute a comity between the Supreme Court and High Court. Similarly, when a party had already moved High Court with a similar complaint and for the same relief and failed, the Supreme Court insisted on an appeal to be brought before it and does not allow fresh proceedings to be started.

Another restraint the Supreme Court puts on itself is that it doesn’t allow a new ground to be taken in appeal, In the same way, Supreme Court has refrained from taking action when a better remedy is to move High Court under Article 226 which can go into the controversy more comprehensively than the Supreme Court can under Article 32 of the Constitution of India. It follows, therefore, that the Supreme Court puts itself to restraint in the matter of petitions under Article 32 and this practice has now become inveterate.[1]

Article 32 is not to be invoked for infringement of a personal right of contract, nor is to be invoked for agitating questions which are capable of disposal under special enactments.[2]

A writ petition cannot be filed under Article 32 to enforce right under Article 265 of the Constitution, as the right conferred by Article 265 is not a right conferred by Part III of the Constitution.[3]

In Rudul Sah v. State of Bihar[4] added a new dimension to judicial activism and raised a set of vital questions, such as, liability of State to compensate for unlawful detention, feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, propriety of the Supreme Court passing an order for compensation on a habeas corpus petition for enforcing the right to personal liberty.

The Supreme Court in the above case observed: (SCC p. 147, para 9)

“9. It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right.”

The Court further observed: In the circumstances of the case the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly violated. Article 21, which guarantees the right to life and liberty, will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.

The Supreme Court had taken a different view in Jiwan Mal Kochar v. Union of India[5] by holding that the petitioner could not be granted the damages and compensation under Article 32 of the Constitution when the writ petition was filed challenging certain remarks made against him by the Supreme Court behind his back at the instance of Respondents 3 to 10 in the writ petition and requested awarding of damages and compensation against the Union of India and other respondents including the State of Madhya Pradesh for all losses, direct or indirect, and humiliations and indignity suffered by him.

In Naresh v. State of Maharashtra[6], it was held that a judicial order passed by the High Court in or in relation to proceedings brought before, it for its adjudication, cannot become the subject-matter of writ jurisdiction of the Supreme Court of India under Article 32(2) of the Constitution. If a judicial order like the one in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Article 136. It would, however, not be open to them to invoke the jurisdiction of the Supreme Court under Article 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the court and its validity is not open to be challenged by writ proceedings.

In the hands of the Supreme Court public interest litigation in India has taken multidimensional character. The age-old adversarial system has been given a go-by. With the advent of judicial activism, letters, newspaper reports, complaints by public-spirited persons, social action groups bringing to the notice of the Court regarding violation of fundamental rights were dealt with treating them as writ petitions and the relief of compensation was also granted through writ jurisdiction under Article 32 of the Constitution.

[1] Tilokchand Motichand v. H.B. Munshi, Commissioner of Sales Tax, AIR 1970 SC 898

[2] C.K. Achuthan v. State of Kerala, AIR 1959 SC 490

[3] Laxmanappa v Union of India, AIR 1955 SC 3

[4] (1983) 4 SCC 141

[5] (1984) 1 SCC 200

[6] AIR 1967 SC 1


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