Updated: November 18, 2020 7:26:14 am
The Supreme Court of India. (Photo Express)
On Monday, a Supreme Court court headed by Chief Justice of India SA Bobde observed that he is “trying to dissuade” people from filing petitions under article 32 of the Constitution. The observation occurred during the hearing of a petition requesting the release of journalist Siddique Kappan, WHO was arrested with three others while on their way to Hathras, Uttar Pradesh, to report an alleged crime and murder.
What is article 32?
It is one of the fundamental rights listed in the Constitution to which every citizen is entitled. Article 32 deals with the “right to constitutional remedies”, or affirms the right to appeal to the Supreme Court through the appropriate procedures for the application of the rights conferred in Part III of the Constitution. It establishes that the Supreme Court “shall be empowered to issue instructions or orders or orders, including writs of the type of habeas corpus, mandamus, prohibition, quo warranto and certiorari, as appropriate, for the application of any of the rights conferred by this part” . The right guaranteed by this article “shall not be suspended unless this Constitution provides otherwise.”
The article is included in Part III of the Constitution with other fundamental rights that include equality, freedom of speech and expression, life and personal freedom and freedom of religion. Only if any of these fundamental rights are violated can a person turn to the Supreme Court directly under Article 32.
During the debates of the Constituent Assembly in December 1948, a discussion on this fundamental right (in the draft, it is referred to as Article 25), Dr. BR Ambedkar had said: “If you asked me to name any particular article of this Constitution as the most important thing — an article without which this Constitution would be null and void — I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it… ”He said that the rights vested in the Supreme Court through this article could not be taken away unless the Constitution itself is amended and therefore was“ one of the greater safeguards that can be provided for the safety and protection of the individual ”.
Others on the drafting committee also said that since it gives a person the right to go to the Supreme Court as a remedy if fundamental rights are violated, “it is a fundamental right to all fundamental rights” guaranteed by the Constitution.
The Constituent Assembly debated whether fundamental rights, including this one, could be suspended or limited during an Emergency. The item cannot be suspended except during the emergency period.
Can you go to the Superior Courts in cases of violation of fundamental rights?
Both the Superior Courts and the Supreme Court can be directed for violation or promulgation of fundamental rights through five types of remedies:
* Habeas corpus (related to personal liberty in cases of illegal detentions and undue arrests)
* Mandamus – instruct public officials, governments, courts to fulfill a legal duty;
* Quo warranto – to show why court order is a person holding public office;
Prohibition: order judicial or quasi-judicial authorities to put an end to procedures for which it does not have jurisdiction; Y
* Certiorari: re-examination of an order issued by judicial, quasi-judicial or administrative authorities.
In civil or criminal matters, the first recourse available to an aggrieved person is that of the courts of first instance, followed by an appeal in the Superior Court and then in the Supreme Court. When it comes to violation of fundamental rights, a person can go to the High Court under article 226 or to the Supreme Court directly under article 32. However, article 226 is not a fundamental right like article 32.
What have been the recent observations of the Supreme Court on Article 32?
In the case of journalist Siddique Kappan, the court asked why the petitioners could not go to the Superior Court. He has sought answers from the Center and the UP government, and will hear the case later this week.
In another case last week invoking Article 32, filed by a Nagpur man arrested in three cases for alleged libelous content against the Chief Minister of Maharashtra, Uddhav Thackeray, and others, the same court ordered him to go to the High Court first.
Redress was also sought under Article 32 in a petition filed by the wife of Telugu poet Varavara Rao, P Hemalatha, against the conditions of his detention in prison since 2018. The Supreme Court ordered the Bombay High Court to speed up the audience on bail filed for medical reasons, pending since September. He noted that once a competent court had heard, it was under the authority of that court to decide the matter.
In another case, CJI Court Bobde, Judge AS Bopanna and Judge V Ramasubramanian had issued a contempt notice to the Deputy Secretary of the Assembly of Maharashtra who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for going to the higher court against the notice of violation of privilege. The court had then said that the right to go to the Supreme Court under Article 32 is itself a fundamental right and that “there is no doubt that if a citizen of India was in any case dissuaded from going to this Court in exercise of their right under article 32 of the Constitution of India, would amount to a serious and direct interference in the administration of justice in the country ”. 📣 Express Explained is now on Telegram
And what have your observations been over the years?
In Romesh Thappar v. State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the application of fundamental rights. “This Court is thus constituted protector and guarantor of fundamental rights and cannot, in accordance with its responsibility, refuse to respond to requests for protection against the violation of such rights,” the court observed.
During the Emergency, in Additional District Magistrate, Jabalpur vs. SS Shukla (1976), the Supreme Court had said that the citizen loses his right to go to court under article 32.
Constitutional experts say that ultimately it is up to the Supreme Court and each individual judge to decide whether an intervention in a case is warranted, which could also be heard by the Superior Court in the first place.
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This article first appeared in print on November 18, 2020 under the title ‘Article 32 and Supreme Court’.
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