what is the Issue of application of Article 32
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.’
News: Recently a Supreme Court Bench headed by Chief Justice of India S. A. Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.
What was the case?
- Kerala-based Siddique 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.
- Initially, he along with 3 others was arrested under Section 151 of the Code of Criminal Procedure (CrPC), later he was booked on charges of sedition and sections of the Unlawful Activities Prevention Act (UAPA).
- A habeas corpus petition seeking release of Kerala-based Siddique Kappan was filed in the Supreme Court.
- However, it is not the sole case that has met the same fate, in an another case, Article 32 petition filed on behalf of Nagpur resident Sameet Thakkar (arrested for allegedly making objectionable comments against Maharashtra CM) was also declined.
What is the issue all about?
- As per Faizan Mustafa, vice chancellor of the NALSAR University, ideally, cases must first go to the high court. However, SC should also be consistent in the matters, then only the desired results can be achieved.
Decisions in the similar cases
- In a recent matter, the Bench of CJI Bobde, Justice A S Bopanna and Justice V Ramasubramanian had issued a contempt noticeto the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice.
- The court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that
“there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country”.
- Even as the Supreme Court underlines the powers of the high courts, it has in the past transferred cases to itself from the high courts.
Transfer of Cases
- Even though SC underlines the powers of the high courts, there are past examples of transferring cases Suo Moto, to itself from the high courts.
- Most recently, the Supreme Court transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court.
- In 2018, the SC had transferred the case seeking probe into the death of judge B H Loya from the Bombay High Court to itself.
- When such transfers take place petitioners lose a stage of appeal that would otherwise have been available had the High Court heard and decided the case.
Fundamental rights under article 32
- Article 32 of the constitution is a Fundamental Right that falls under Part III of the Constitution that includes the fundamental rights of individuals.
- It provides individuals, seeking enforcement of other fundamental rights recognized by the Constitution, the right to approach the Supreme Court directly.
- Under Article 32 the Supreme Court have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
- The right guaranteed by this Article ‘shall not be suspended except as otherwise provided for by this Constitution’.
- Under Article 226 of the Constitution, similar powers have been conferred on high courts, to enforce the fundamental rights of citizens. However, article 226 is not a fundamental right like Article 32.
- The two provisions are not mutually exclusive and allow a citizen to either approach the high court that has jurisdiction over the case or the Supreme Court.
- However, scope of Article 226 is wider than that of Article 32, as it covers issues other than fundamental rights as well.
- Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:
- Habeas corpus: It is issued against the illegal detentions and wrongful arrests to ensure personal liberty and considered as one of the most important writs for personal liberty.
- Mandamus:It is issued against public officials, governments, courts to perform a statutory duty
- Certiorari:Issued for re-examination of an order or decision by judicial, quasi-judicial or administrative authorities.
- Prohibition: Issued for directing judicial or quasi-judicial authorities to stop from going ahead with certain proceedings to ensure that it does not exceed its jurisdiction.
- Quo warranto:It is issued to prevent people from assuming positions in public office when she or he is not entitled to it.
Previous judgments related to article 32
- In Romesh Thappar vs State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights. “This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,” the court observed.
- In Additional District Magistrate, Jabalpur vs S S Shukla (1976), During the Emergency, the Supreme Court had ruled that the right to constitutional remedies under Article 32 would remain suspended during a national emergency.
- 44th Constitutional amendment provided that 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 and 21.
Constitutional experts say that it is eventually at the discretion of the Supreme Court and each individual judge to decide whether an intervention is warranted in a case, which could also be heard by the High Court first. There is need to bring in more clarity by judiciary on the matter of article 32 so that people do not lose their hope in the justice system as the ultimate remedy for the violation of their rights.