Table of Contents

Art. 32 is the most important Article in the Indian Constitution. It provides remedies for the enforcement of rights conferred by Part – III (Fundamental Rights) of the Constitution of India.

Dr. B.R. Ambedkar remarked,

“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 (Art. 32). It is the very soul of the Constitution and the very heart of it.”

Art. 32 cannot be amended; it is part of basic structure of the Constitution.

The Constitution of India gives us six Fundamental Rights, which are enshrined in Part – III of the Constitution from Art. 12-35. To make these rights meaningful, there needs to be an effective machinery for their enforcement. So that, if these rights are violated, that enforcement machinery can restore them back. For the said purpose, Art. 32 gives us the right to move to Supreme Court, in case of violation of Fundamental Rights.

A right without a remedy is but a worthless declaration. A right becomes valuable when there is an effective means to implement it. The existence of a right is felt only through the pronouncements of a court

In case of violation of our Fundamental Rights. Art. 32 gives us the right to file a writ petition in the Supreme Court; and empowers the Supreme Court to issue writ in response to our petition. And thus, the Supreme Court restores our Fundamental Rights by issuing writs.

  • Art. 32(1) states, “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”
  • Art. 32(2) states, “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.” (Part – III).

Normally, only the aggrieved person is allowed to move the Court. But it has been held by the Supreme Court that in social or public interest matters, any one may move the court. Any piece of legislation or law, which tends to interfere with the power of Supreme Court under Art. 32 shall be declared as void. Hence, there is no way that the legislative or executive authorities can by-pass the power and responsibility entrusted to the Supreme Court by the Constitution.

The Supreme Court has ruled that Art. 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution. Please note, during a national emergency, this right can be suspended by the President.

Article 226 enables the High Courts to issue writs for the enforcement of fundamental rights and also other ordinary legal rights. Thus, Arts. 32 and 226 provides the right to constitutional remedies. The power of the High Court is wider than the power conferred by Art. 32 on the Supreme Court. However, a petition under Art. 32 may be filed to challenge the validity of a law with reference to a provision other than those involving fundamental rights, provided it inevitably causes a restriction on the enjoyment of fundamental rights. It may be noted that the power of the High Court to issue writs cannot be derogation of the Supreme Court’s power. In other words, an order under Art. 32 will supersede the orders of the High Court previously passed.

There is no need to resort to Art. 226 before approaching the Supreme Court under Art. 32. Thus, a person may directly move the Supreme Court. As regards the enforcement of the orders and direction of the Supreme Court, Art. 144 says that. “All authorities civil and judicial in the territory of India shall act in aid of the Supreme Court. If any of these authorities fail to carry out the orders of the Court, the Court can punish them for the contempt of the court.”

Effect of Guarantee

The effect of the use of the word guaranteed in Art. 32(1) is that the right to move the Supreme Court where a fundamental right has been infringed is itself fundamental right. The following consequences flow from this guarantee:

  1. The right cannot be suspended except as provided in Art. 359.
  2. Supreme Court is the guarantor of fundamental rights and it is the duty of the Supreme Court to grant relief under Art. 32 where a fundamental right has been violated.
  3. An aggrieved person may approach the Supreme Court in the first instance. He need not move a High Court, except in service matters (where a person has to go to the High Court).
  4. Availability of alternate remedy is no bar to relief under Art. 32.
  5. There is no territorial limitation to the powers of the Supreme Court.
  6. The grant of a writ is not discretionary but as a matter of right.
  7. The right cannot be abridged or taken away by legislation.

Though Art. 32 is itself a guaranteed right, it could not be contended that the Supreme Court does not have discretion to deny relief. Undoubtedly, Art. 32 guaranteed the right to approach the Supreme Court but that does not restrict the Court’s discretion to grant relief.

Power to Issue Writ Petition

A writ is a written official order issued by the court in the form of a warrant, direction, command, order, etc.

Art. 32 empowers the Supreme Court to issue writs and, Art. 226 empowers any of the High Courts to issue writs. Distinction between them: -

  1. Supreme Court can issue writs only for the enforcement of fundamental rights, whereas, High Courts can issue writs for the enforcement of fundamental rights and ordinary legal rights as well. [Note: - A petition under Art. 32 may be filed to challenge the validity of a law with reference to a provision other than those involving fundamental rights, provided it inevitably causes a restriction on the enjoyment of fundamental rights.]
  2. Supreme Court can issue writs throughout the territory of India, whereas, High Courts can issue writs within its territorial jurisdiction. [Note: - The High Courts can issue writs to any governmental authority outside its territorial jurisdiction, provided the cause of action arises within their territorial jurisdiction.]
  3. A writ is a discretionary remedy and the High Court can refuse it on the ground of acquiescence, laches (delay), available alternative remedy and no benefit to the party. Whereas, Supreme Court gets the power to entertain a writ petition from Art. 32, which is a Fundamental Right in itself. Therefore, Supreme Court can’t refuse to exercise its writ jurisdiction. It doesn’t mean that the Supreme Court has to necessarily entertain a writ petition; but it has the duty to check whether the Fundamental Right has been infringed or whether it has to be entertained.

Types of Writs

There are five types of writs: -

  1. Habeas Corpus - It literally means ‘a demand to produce the body (whether dead or alive) in the Court’. Writ of Habeas Corpus can be issued for preserving the liberty of a person, who is being illegally detained. This writ can be issued against both public authorities as well as private individual. A person who has been detained illegally, can file an application for Habeas Corpus in the Supreme Court under Art. 32. It can also be filed by the mother, father, brother, sister, wife, or even friends on his behalf. When the concerned individual is presented before the court, the Court examines the course and the legality of the detention. The Court would set the detained person free, if the detention is found to be illegal. There are four exceptions to the writ of Habeas Corpus: -
  1. Lawful Detention
  2. Detention by a competent court
  3. Contempt Proceedings
  4. Detention outside court jurisdiction

Case: Rudal Shah v. State of Bihar (1983) – In this case, a person who had already completed his period of detention, was still kept in prison, for 14 extra years. The court issued the writ of Habeas Corpus and immediately released him. The court also awarded him exemplary damages. The court established that Article 32 is not only preventive or remedial through release, but also punitive and compensatory, pioneering the concept of "constitutional compensation" in Indian jurisprudence.

  1. Mandamus – It is a Latin term meaning ‘We Command’. Writ of Mandamus can be issued if a public official is not doing his duty and it is leading to the violation of your Fundamental Right. It is an order from a superior court to a lower court, tribunal or public authority to perform an act, which falls within its duty; it is issued to a public official to do a thing which is a part of his official duty, which he has failed to do so far. Mandamus may lie against any authority, officers, government or even judicial bodies that fail to or refuse to perform a public duty and discharge a legal obligation. This writ cannot be issued as a matter of right; it is the discretionary power of a court to issue such writ. The writ of Mandamus CANNOT be issued: -
  1. Against private individuals or body;
  2. To enforce departmental instruction that does not possess statutory force;
  3. When the duty is discretionary and not mandatory;
  4. To enforce a contractual obligation;
  5. Against the President of India or the State Governors;
  6. Against the Chief Justice of a High Court acting in judicial capacity.

Case: Gujarat State Financial Corporation v. Lotus Hotels (1983) – In this case, it was held that when a statutory body acts arbitrarily in breach of its solemn promise, a High Court has full power under Article 226 to command compliance via a Writ of Mandamus.

  1. Certiorari – It is a Latin word meaning ‘to inform’. The writ of Certiorari is issued by the Supreme Court to an inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. Certiorari is issued on the grounds of: -
  1. Excess/Lack of jurisdiction;
  2. Abuse of jurisdiction;
  3. Violation of the principles of natural justice; or
  4. Error of law apparent on the face of the record.

It can be issued to quash judicial, quasi-judicial as well as administrative actions.

Two cases with respect to writ of Certiorari:

  • Case: Gullapalli Nageshwar Rao v. APSRTC (1959)
  • Case: A.K. Kraipak v. Union of India (1969)

In both these cases, writ of certiorari was issued; judgements of lower courts were held to be illegal and therefore quashed.

  1. Prohibition – Writ of Prohibition is issued to the court or any tribunal to bar them from doing something what they are about to do. It means ‘to forbid’. It is popularly known as ‘Stay Order’. A writ of Prohibition Prevents a lower court or tribunal from exceeding its jurisdiction. While Mandamus order action, Prohibition orders inaction. The writ of Prohibition can be issued only against judicial and quasi-judicial authorities. In case of Prohibition, the aggrieved person can move to a superior court for a writ of Prohibition while the proceedings are still going on. Whereas, in case of Certiorari, the aggrieved person can move to the superior court for a writ of Certiorari after the lower court has given the decision. A writ of Prohibition is Preventive in nature, while a writ of Certiorari is both Curative and Preventive.
  2. Quo Warranto – It means, “By What Warrant?” or “By What Authority?”. A writ of Quo Warranto is issued to enquire into the legality of claim of a person to a public office; it prevents illegal usurpation of public office by a person. The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office. Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

Direction and Orders

Article 32(2) is wide in its scope. It does not restrict the Supreme Court merely to the issuance of the specifically named writs. The Court can also issue “any direction or order” that it considers appropriate for the enforcement of Fundamental Rights, as held in M.C. Mehta v. Union of India (AIR 1987 SC 1080).

In Rupa Ashok Hurra v. Ashok Hurra (AIR 2002 SC 1771), the Supreme Court held that where there is a gross miscarriage of justice in a final judgment that cannot ordinarily be challenged further, the Court may permit a curative petition to provide an additional remedy in exceptional circumstances.

The power under Article 32 is not merely preventive or injunctive in nature, i.e., limited to preventing the violation of Fundamental Rights. It is also remedial, enabling the Court to grant appropriate relief for a violation that has already occurred. This principle was recognised in Rudul Sah v. State of Bihar (AIR 1983 SC 1086).

Thus, while exercising its powers under Article 32(2), the Supreme Court has, among other things:

  1. Awarded compensation and exemplary costs for violations of Fundamental Rights – Sebastian M. Hongray v. Union of India (AIR 1984 SC 1026).
  2. Directed the State to ensure payment of minimum wages to contract labourers – People’s Union for Democratic Rights v. Union of India (AIR 1982 SC 1473).
  3. Directed industries dealing with hazardous chemicals and gases to adopt necessary safety measures before reopening, in order to protect the life and health of workers and neighbouring residents – M.C. Mehta v. Union of India (AIR 1987 SC 965).
  4. Directed the State to rehabilitate undertrial prisoners/victims and ensure protection of their rights – Khatri v. State of Bihar (1983) 2 SCC 266.
  5. Recognised the duty of medical professionals to provide immediate medical assistance to injured persons without waiting for procedural formalities, in order to prevent avoidable deaths – Parmanand Katara v. Union of India (AIR 1989 SC 2039).
  6. Directed improvement of facilities and conditions for inmates of government protective homes – Upendra Baxi v. State of U.P. (1986) 4 SCC 106.
  7. Laid down guidelines for the rehabilitation and compensation of rape victims – Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14.
  8. Expanded the scope of habeas corpus, holding that it could be used not only to secure release from illegal detention but also to protect prisoners from inhuman and barbarous treatment – Sunil Batra v. Delhi Administration (AIR 1980 SC 1579).
  9. Laid down principles for awarding compensation under Articles 32 and 226 to victims of unlawful State action – Nilabati Behera v. State of Orissa (AIR 1993 SC 1960).
  10. Awarded compensation to victims of police excesses and misconduct – Arvinder Singh Bagga v. State of U.P. (1994) 4 SCC 602.

Therefore, Article 32(2) gives the Supreme Court a broad remedial power to protect and enforce Fundamental Rights. Its role is not confined merely to preventing violations but also extends to providing effective remedies and compensation where such violations have already taken place.

Art. 32(3)

Art. 32 grants the same power of issuance of writs, directions or orders, to other courts as well. Art. 32(3) states, “Without prejudice to the powers conferred on the Supreme Court by clauses (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).”

Art. 32(4)

Article 32(4) provides, “the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

Thus, the right to approach the Supreme Court under Article 32 cannot be taken away, restricted or diluted by an ordinary law. The Legislature, and consequently the Executive, cannot curtail this constitutional remedy.

The jurisdiction of the Supreme Court under Article 32 is directly conferred by the Constitution itself. Therefore, any limitation on this right can be imposed only by the Constitution and not through ordinary legislation.

However, Article 359 provides for an exceptional situation in which the enforcement of Fundamental Rights may be suspended. This provision operates when a Proclamation of Emergency under Article 352 is in force. In such a situation, the President may, by order, suspend the right to move any court for the enforcement of specified Fundamental Rights, subject to the constitutional limitations prescribed under Article 359.

Important Case Laws

  1. Rashid Ahmed v. Municipal Board, Kairana (1950) – In this case, it was held that the mere existence of an alternative statutory remedy is not a legal bar to filing a writ petition under Article 32 when a fundamental right has been completely nullified.
  2. Romesh Thappar v. State of Madras (1950) – In this case, it was held that Article 32 is itself a fundamental right that makes the Supreme Court a guarantor and protector of fundamental liberties, meaning citizens have an absolute right to approach the apex court directly without exhausting lower remedies.
  3. L. Chandra Kumar v. Union of India (1997) – In this case, it was held that the power of judicial review vested in the Supreme Court under Article 32 and High Courts under Article 226 forms part of the basic structure.
  4. A.D.M. Jabalpur v. Shivkant Shukla (Habeas Corpus Case) (1976) – In this case, it was held that during a National Emergency, a Presidential Order issued under Article 359 could completely suspend a citizen's right to move any court for the enforcement of fundamental rights. The Court ruled that Article 32 was a “right to enforce rights.” If the fundamental right to life and liberty (Article 21) was suspended, Article 32 effectively became an empty vessel with no enforceable content. The ruling stripped the Supreme Court of its power under Article 32 to issue writs of Habeas Corpus, meaning courts could not examine if a detention was malicious (mala fide), mistaken, or entirely unauthorized by law.

[Note: - Acc. to 44th Amendment Act, 1978, Articles 20 and 21 can never be suspended.]

  1. S.P. Gupta v. Union of India (1981) – In this case, it was held that any member of the public acting in good faith could trigger Article 32 on behalf of a person or class of persons who, by reason of poverty, helplessness, or disability, are unable to approach the court themselves.