Constitutional Remedies Under Article 32

Author: Prajakta Patil
Student, Punyashlok Ahilya Devi Holkar University Solapur

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3 Quick Takeaways

Article 32 of the Constitution of India is not merely a procedural provision but is itself a Fundamental Right, forming part of the basic structure of the Constitution and guaranteeing every individual direct access to the Supreme Court for the enforcement of their fundamental rights.
The five constitutional writs, namely Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto, are the primary instruments through which the Supreme Court enforces fundamental rights, each serving a distinct and precisely defined protective function.
Landmark judgments including Romesh Thappar v. State of Madras (1950), Kesavananda Bharati v. State of Kerala (1973), ADM Jabalpur v. Shivkant Shukla (1976), and Bandhua Mukti Morcha v. Union of India (1984) collectively illustrate the evolving and indispensable role of Article 32 in sustaining constitutional democracy in India.

Abstract

Fundamental Rights are essential for the moral and material development of individuals. It is through Fundamental Rights that people are best able to develop their personalities and realise their potential. These rights are guaranteed by the Constitution of India and are justiciable, meaning the Constitution empowers courts to protect and enforce them in the event of any infringement. The concept of Fundamental Rights, being indispensable to the full and complete development of the human personality, is discussed at length in relation to Article 32. Dr. B.R. Ambedkar described Article 32 as the “spirit of the constitution and exceptionally the heart of it.” The Supreme Court has since recognised it as part of the basic structure of the Constitution. The right to petition the Supreme Court under Article 32 cannot be suspended except as otherwise provided by the Constitution, meaning that under Article 359, this right may be suspended only during a national emergency. Article 32 designates the Supreme Court as the protector and guarantor of Fundamental Rights, and the Court retains original jurisdiction over the power to issue writs. This means that an individual may approach the Supreme Court directly for a remedy rather than through an appeal. Article 32 can only be invoked to seek redress for the Fundamental Rights enshrined in Articles 12 to 35 of the Constitution. It does not extend to any other legal right for which separate laws are available. The Right to Constitutional Remedy is the sixth and last Fundamental Right under the Indian Constitution and is one of the most important provisions it contains.

Keywords: Article 32, Constitutional Remedies, Fundamental Rights, Writs, Supreme Court, Basic Structure.

I. Introduction

Article 32 guarantees the right to directly approach the Supreme Court for the enforcement of Fundamental Rights. It empowers the apex court to issue directives, orders, or writs, namely Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari, to safeguard citizens against violations by the state. Article 32 ensures that Fundamental Rights are not merely theoretical but are enforceable in practice, thereby establishing the rule of law and preventing legislative or executive encroachment upon the rights of citizens.

Article 32 grants every individual the right to move the Supreme Court for the enforcement of their Fundamental Rights. This means that if a person believes their Fundamental Rights have been violated, they may approach the Supreme Court directly for relief. The provision further ensures that not only do individuals have the right to move the Court, but the Court also has the power to issue appropriate orders, directions, or writs for the enforcement of those rights.

Constitutional remedies refer to the legal mechanisms provided by the Constitution to safeguard and enforce the Fundamental Rights of individuals. These remedies empower citizens to seek relief from the judiciary when their constitutional rights are violated by the state or any other entity. They serve as a crucial means of upholding the rule of law, ensuring accountability, and protecting the rights and liberties of citizens within a democratic society.

II. Constitutional Framework of Article 32

The text of Article 32 of the Constitution of India reads as follows:

(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 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).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

III. Nature and Scope of Article 32

Nature of Article 32

The right to move the Supreme Court is itself a Fundamental Right, making the apex court the guarantor and defender of Fundamental Rights. It forms part of the basic structure of the Constitution and cannot be taken away even by a constitutional amendment. Citizens may bypass lower courts and directly approach the Supreme Court under this provision, and the Court cannot ordinarily refuse to hear cases where violations of Fundamental Rights are alleged.

Scope of Article 32

The scope of Article 32 is limited to the enforcement of Fundamental Rights under Part III of the Constitution. It cannot be invoked for ordinary legal rights or civil disputes. The Court may issue the following specific writs under this provision:

Habeas Corpus: To produce a detained person before the court and secure their release from unlawful detention.
Mandamus: To command a public official or body to perform a duty that they are legally obligated to discharge.
Prohibition: To prevent a lower court or tribunal from exceeding its jurisdiction.
Certiorari: To quash an order already passed by a lower court or tribunal that was made without jurisdiction or in violation of natural justice.
Quo Warranto: To restrain a person from holding or acting in a public office to which they are not legally entitled.

The scope of Article 32 has also expanded to include Public Interest Litigation (PIL), allowing citizens or organisations to approach the Court for the protection of the rights of marginalised, exploited, or underprivileged groups. The right under Article 32 can be suspended only during a National Emergency, as expressly provided by the Constitution.

IV. The Five Constitutional Writs

Habeas Corpus: Issued to secure the release of a person from unlawful detention.
Mandamus: Issued to compel a public authority to perform a duty imposed upon it by law.
Prohibition: Prevents a lower court or tribunal from exceeding its jurisdiction.
Certiorari: Quashes orders passed without jurisdiction or in violation of the principles of natural justice.
Quo Warranto: Questions the legality of a person holding a public office and restrains them from continuing to act in that capacity if found ineligible.

V. Landmark Judgements

1. Romesh Thappar v. State of Madras, AIR 1950 SC 124

This is a landmark Supreme Court decision that upheld freedom of speech, including the freedom of circulation, under Article 19(1)(a). The Court declared Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, void for being excessively broad and not confined to matters of state security.

Romesh Thappar, editor of the journal Cross Roads, challenged a ban on his publication’s entry into the State of Madras, imposed on grounds of “public safety” under the Madras Maintenance of Public Order Act, 1949. He filed a writ petition directly under Article 32 of the Constitution, arguing that the ban violated his Fundamental Right to freedom of speech and expression. The Supreme Court, in its majority opinion delivered by Chief Justice Patanjali Sastri, ruled that freedom of speech and expression includes the right to propagate ideas through the freedom of circulation. The Court held that restrictions on free speech are constitutionally permissible only if they are in the interest of the security of the State, and not merely for general public safety or public order. Section 9(1-A) of the Act was accordingly declared unconstitutional and void under Article 13(1) as being inconsistent with Part III of the Constitution. This case directly led to the First Constitutional Amendment Act of 1951, which added “public order” as a ground for reasonable restrictions under Article 19(2).

2. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

This landmark judgment, delivered by the largest-ever thirteen-judge bench of the Supreme Court by a majority of 7:6 on 24 April 1973, established the Basic Structure Doctrine and restricted Parliament’s amending power under Article 368.

The case was initiated by Swami Kesavananda Bharati, head of the Edneer Mutt in Kerala, who challenged the Kerala government’s land reform laws regarding the management of his property. The Court ruled that while Parliament has wide powers to amend the Constitution, it cannot destroy or damage its foundational pillars, such as secularism, democracy, judicial review, federalism, and separation of powers. The bench upheld the 24th Constitutional Amendment, which allowed Parliament to amend any part of the Constitution, but struck down the portion of the 25th Amendment that restricted judicial review. The judgment overruled the earlier decision in Golaknath v. State of Punjab, which had held that Fundamental Rights could not be amended. The verdict established that judicial review is part of the basic structure of the Constitution, allowing courts to invalidate constitutional amendments that violate these core principles, thereby ensuring that the Constitution remains supreme.

3. ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521

Also referred to as the Habeas Corpus case, this was a controversial Supreme Court ruling delivered during the Emergency period. A majority of 4:1 held that during a declared national emergency, individuals cannot challenge illegal detention, as the right to life and liberty under Article 21 stood suspended. It is widely regarded as a low point in Indian judicial history and was subsequently overruled.

The case arose during the Emergency of 1975 to 1977, when numerous political opponents were detained under the Maintenance of Internal Security Act (MISA). The central question before the Court was whether a person could approach the High Courts by way of a writ of Habeas Corpus for illegal detention while Fundamental Rights were suspended. The majority, comprising Chief Justice A.N. Ray and Justices P.N. Bhagwati, Y.V. Chandrachud, and M.H. Beg, ruled that the right to move courts under Article 226 for the enforcement of Fundamental Rights was suspended, and that no person could challenge their detention regardless of whether it was illegal or motivated by malice. Justice H.R. Khanna delivered a famous and celebrated dissent, arguing that even in the absence of Article 21, the state cannot deprive a person of life or liberty without legal authority, and that the rule of law prevails even during an emergency. The ruling was heavily criticised, and Justice P.N. Bhagwati later expressed regret for his concurrence. The 44th Constitutional Amendment of 1978 subsequently ensured that Article 21 cannot be suspended even during a national emergency. The decision was effectively overruled by the Supreme Court in K.S. Puttaswamy v. Union of India (2017), which upheld the right to privacy as an intrinsic part of the right to life under Article 21.

4. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161

This landmark PIL decision affirmed the state’s duty to identify, release, and rehabilitate bonded labourers, and ruled that forced labour arising from economic compulsion constitutes bonded labour under the Bonded Labour System (Abolition) Act, 1976, upholding Fundamental Rights under Articles 21, 23, and 24.

The petitioner, an organisation working against bonded labour, discovered workers being kept in inhuman conditions in stone quarries in Faridabad, Haryana. The Court held that forced labour includes any form of compulsion, whether economic or otherwise. The judgment established the important procedural principle that a letter addressed to the Court can be treated as a writ petition under Article 32, enabling access to justice for the marginalised. The Court issued twenty-one directives to the Central Government and the Government of Haryana for the identification, release, and rehabilitation of bonded labourers. The judgment relied substantially on Articles 21 (Right to Life), 23 (Prohibition of traffic in human beings and forced labour), and 24 (Prohibition of employment of children in factories and hazardous work). A subsequent 1997 decision involving the same organisation focused on eliminating child labour in the carpet industry in Uttar Pradesh and directed rehabilitation and educational access for affected children.

VI. Conclusion

Article 32 is rightly described as the “soul of the Constitution and the very heart of it.” Fundamental Rights are the finest conferment of the Constitution, and together they form the protective foundation upon which the entire constitutional edifice rests. Each of these rights would be rendered meaningless if there existed no mechanism to enforce them. Article 32 provides precisely that mechanism. It is for this reason that it is regarded as the most vital provision among the Fundamental Rights.

Dr. B.R. Ambedkar described Article 32 as the “spirit of the constitution and exceptionally the heart of it,” and the Supreme Court has since embedded it within the doctrine of basic structure. The right to approach the Supreme Court under Article 32 cannot be suspended except as otherwise provided by the Constitution, meaning that this right is suspended only during a national emergency under Article 359. Article 32 makes the Supreme Court the guardian and guarantor of Fundamental Rights, and the power to issue writs falls within its original jurisdiction. This means that an individual may approach the Supreme Court directly for a remedy without first exhausting appellate remedies. Article 32 can be invoked only to enforce the Fundamental Rights enshrined in Articles 12 to 35. It is not available for the enforcement of ordinary legal rights for which separate statutory remedies exist. In this sense, Article 32 is not merely a procedural provision. It is the constitutional guarantee that transforms Fundamental Rights from aspirational declarations into enforceable entitlements.

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views of The Lawscape.

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