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New Delhi: 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 top court said this Monday while hearing the habeas corpus plea filed under Article 32 by the Kerala Union of Working Journalists for the release of journalist Siddique Kappan.

Kerala-based Kappan was arrested on 5 October when he was on his way to Hathras to report on the alleged gang rape and murder of a 20-year-old Dalit woman.

The police had initially arrested Kappan, along with three others, under Section 151 of the Code of Criminal Procedure (CrPC) on the suspicion that they may commit some cognisable offence. Later, they were also booked on charges of sedition and sections of the Unlawful Activities Prevention Act (UAPA).

Faizan Mustafa, vice chancellor of the NALSAR University of Law in Hyderabad, told ThePrint, no fundamental right had any meaning without Article 32. “However ideally, we must first go to the high court.”

Referring to a 1987 judgment (P.N. Kumar vs Municipal Corporation Of Delhi), Mustafa also said one should come to the top court only sparingly. He, however, added that the top court should also be consistent in matters it takes up because only then will the desired result be achieved.

“In some cases the top court says one should go to the high court, while it hears other cases. There is no consistency what matters the Supreme Court takes up,” said Mustafa.

Republic TV Editor-in-Chief Arnab Goswami had in May sought quashing of multiple FIRs against him on a petition filed under Article 32. The Supreme Court had then observed that it was the court’s duty, under Article 32, to protect the right to freedom of speech and expression.

ThePrint looks at what Article 32 of the Indian Constitution is and various amendments to it.


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‘Heart and soul of Constitution’

Article 32 falls under Part III of the Constitution that includes the fundamental rights of individuals. It 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.

Dr B.R. Ambedkar had 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.”

The rights guaranteed under Article 32 cannot be suspended unless provided for by the Constitution.

In a judgment in the L. Chandra Kumar vs Union Of India and Others case, a bench of seven judges had unequivocally declared that Article 32 was an integral and essential feature of the Constitution and constituted its basic structure.

Similarly, in a judgment in the S.P. Sampath Kumar vs Union Of India case, it was observed that the Supreme Court’s powers under Article 32 formed part of the basic structure of the Constitution.

During the 1975 Emergency, a five-judge bench of the Supreme Court, in the ADM Jabalpur vs Shivakant Shukla case, had ruled that the right to constitutional remedies under Article 32 would remain suspended during a national emergency. People were unable to seek recourse to enforcement of their fundamental rights.

After the Janata Party won the 1977 general elections, it passed the 44th Amendment to “restore the Constitution to the condition it was in before the Emergency”. The amendment stated that any change to the basic structure of the Constitution could only be made if it was approved by a majority of votes in a referendum where at least 51 per cent of the electorate participated.

It also said that an emergency could only be proclaimed after a prime minister and her/his cabinet gave a written advice to the president. “Unlike in 1975, it is no longer possible for the prime minister to unilaterally take a decision about the proclamation of an emergency without any written explanation,” the amendment said.

The 44th Amendment also 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, with the exception of Article 20 ( deals with 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.


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Writs

One of the most significant features of Article 32 is that the Supreme Court has the power to issue directions, orders or writs for enforcement of fundamental rights.

Someone can seek justice through the five types of writs as provided by Article 32 of the Constitution. These are —

Habeas corpus: Considered to be among the most important writs for personal liberty, habeas corpus literally 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 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.

Prohibition: The writ of prohibition is to stop a lower court from going ahead with certain proceedings 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.

Article 32 and PILs under it

The ambit of Article 32 was further broadened when individuals not having any locus standi in cases were allowed to file PILs under it before the Supreme Court. A PIL can be filed by any person under Article 32, not solely for her or his personal gain or pecuniary benefit but for the public benefit at large.

The rationale behind this was that there could be situations when a victim may not have the necessary resources to move court if her or his rights were breached. In such cases, either the top court would take cognisance of the matter and proceed suo motu or hear a petition on behalf of an individual for public benefit.

The Supreme Court has accepted letters and even postcards as PILs over the years.


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