Writ Jurisdiction: Article 32
Chapter Forty-Seven
Syllabus topic 3.1, "Writ Jurisdiction"
Pages 242 to 246 of 491
In one line
Article 32 does not merely give a remedy; it makes the right to ask for the remedy a fundamental right, which is why it cannot be taken away by ordinary law.
In the wording a student can write in an exam: article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III; article 32(2) empowers the Supreme Court to issue directions, 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 those rights; article 32(3) allows Parliament by law to empower any other court to exercise those powers within the limits of its jurisdiction; and article 32(4) provides that the right guaranteed by the article shall not be suspended except as otherwise provided for by the Constitution.
Where the writs come from
Before the Constitution the writs were an English inheritance, and this book has traced them.
The Charter of 1774 gave the Supreme Court at Calcutta the powers of the Court of King's Bench, and with them the prerogative writs. Two of the seven proceedings in Module I are habeas corpus cases, and they are the reason the word appears in the Burdwan diwan's complaint that the inhabitants "threaten with habeas corpus and damages" without being able to say what a habeas corpus is.
The Indian High Courts Act 1861 merged the Supreme Courts into the High Courts, so the Presidency High Courts inherited those powers, and section 106 of the Act of 1915 and section 223 of the Act of 1935 carried them forward. But only those three High Courts had them, and only within their ordinary original civil jurisdiction, that is, in practice within the Presidency Towns.
So on 25 January 1950 the position was: no fundamental rights, and a writ jurisdiction confined to three courts and, broadly, to three cities.
Articles 32 and 226 change both halves of that at once.
Article 32(1): the guarantee
The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
That single sentence is what distinguishes article 32 from every other jurisdictional provision in the Constitution, and there are three things to say about it.
It is itself a fundamental right. It appears in Part III, under the heading "Right to Constitutional Remedies", and it is therefore protected by article 13: a law that takes it away is void to that extent.
It confers a right on the person, not merely a power on the court. Articles 131 and 136 are drafted as powers of the Supreme Court. Article 32(1) is drafted as a guarantee to the citizen, and the difference is that the Court's jurisdiction under article 136 is discretionary while a petitioner who establishes the breach of a fundamental right is entitled to a remedy under article 32.
Writ Jurisdiction: Article 32
And "by appropriate proceedings" is deliberately loose. It does not prescribe a form. That looseness is what later allowed the Court to entertain proceedings begun in ways no formal rule contemplated.
Dr Ambedkar called this article the heart and soul of the Constitution, and the reason is structural rather than rhetorical: a list of rights with no guaranteed remedy is a list of hopes.
Article 32(2): the power
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 Part III.
Three points, and each is worth marks.
"Directions or orders or writs": the Court is not confined to the five writs. It may make any direction or order appropriate to enforce the right, which is why relief under article 32 is not limited by the technical rules that grew up around the English writs.
"Writs in the nature of": not the English writs themselves, but writs of that character. The Indian courts are not bound by the procedural learning of the King's Bench; they take the substance.
"For the enforcement of any of the rights conferred by this Part": this is the limit, and it is the limit that distinguishes article 32 from article 226. Article 32 lies only for a fundamental right. A petitioner with a good legal grievance that is not a breach of Part III has no case under article 32, though he may have one under article 226.
Article 32(3) and 32(4)
32(3): without prejudice to the Supreme Court's powers, 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).
32(4): the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
Clause (4) is the point at which a student should mention article 359, which allows the President, during a Proclamation of Emergency, to declare that the right to move any court for the enforcement of the rights conferred by Part III, as specified in the order, shall remain suspended. The Forty-fourth Amendment narrowed that power, and articles 20 and 21 can no longer be suspended.
That amendment was made because of what happened during the Emergency of 1975 to 1977, and it is the clearest example in this syllabus of a constitutional protection being strengthened in response to experience.
Writ Jurisdiction: Article 32
Article 32 and article 139
Article 32(2) gives the Supreme Court its writ power for fundamental rights, and it needs no statute.
Article 139 allows Parliament by law to confer on the Supreme Court power to issue the same writs for any purposes other than those in article 32(2). So the Supreme Court's writ jurisdiction beyond fundamental rights is statutory and conditional, while a High Court's under article 226 is constitutional and general.
That asymmetry surprises students, and the reason for it is deliberate: the framers wanted the ordinary work of correcting administrative action done in the High Courts and the Supreme Court reserved for constitutional questions. Whether that is what happened is a separate question.
A worked example
Four petitioners in 1985, and where each should go.
A man detained without the procedure the law requires. A breach of article 21. Article 32 in the Supreme Court, or article 226 in the High Court. Either lies.
A trader whose licence has been cancelled without a hearing, in breach of a statute but not of any fundamental right. No article 32. Article 226 in the High Court, which lies "for any other purpose".
A citizen who wants the Supreme Court to issue a writ against a public authority on an ordinary administrative ground. Article 32 does not lie; article 139 would require a law made by Parliament conferring the power. In practice he goes to the High Court under article 226 and, if he loses, to the Supreme Court under article 136.
A person whose fundamental right is threatened during a Proclamation of Emergency. Article 32(4) protects the right to move the Court unless it is suspended as the Constitution provides, and after the Forty-fourth Amendment articles 20 and 21 cannot be suspended at all.
What beginners get wrong
"Article 32 covers any illegality." It lies only for the enforcement of a fundamental right. Article 226 is the wider provision.
"Article 32 is a remedy." It is a right. That is why it sits in Part III and is protected by article 13, and it is the answer to a question about why it cannot be taken away by ordinary law.
"The Supreme Court can only issue the five writs." It may issue directions or orders or writs, including writs in the nature of the five, whichever is appropriate. The five are a list, not a limit.
"Fundamental rights were suspended during the Emergency." What article 359 permits is the suspension of the right to move any court for their enforcement, as specified in the President's order, and since the Forty-fourth Amendment articles 20 and 21 are outside even that.
Writ Jurisdiction: Article 32
Limits and criticism
The standing criticism is not of the article but of its use, and a student can state it in two sentences.
Because article 32 is a right and not a discretion, and because the Supreme Court sits in Delhi, a petitioner who can reach Delhi has a remedy in the highest court that a petitioner who cannot may effectively lack, and the Court has often said that the High Court under article 226 is the appropriate forum for most such cases.
And because the article requires a fundamental right, the width of relief available under it has depended on the width given to Part III, which has grown very considerably. That growth is a subject for constitutional law rather than for a history paper, and a student should note it and not attempt it here.
What belongs in this paper is the comparison this book is for. In 1780 a man imprisoned by a Provincial Council could obtain a writ from a court in Calcutta if he could reach it and afford it, and the Government might send sepoys to stop the sheriff. In 1950 every person in India acquired a guaranteed right to move the highest court for the enforcement of a written right, and article 144 obliges every authority in the country to act in aid of that court. That is the distance Module III measures.
Quick revision
- 32(1): the right to move the Supreme Court by appropriate proceedings for the enforcement of Part III rights is guaranteed. It is itself a fundamental right.
- 32(2): 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 Part III rights only.
- 32(3): Parliament may empower another court to exercise those powers locally.
- 32(4): the right shall not be suspended except as the Constitution provides; see article 359, narrowed by the Forty-fourth Amendment, which put articles 20 and 21 beyond suspension.
- 139: the Supreme Court's writ power for other purposes needs a law made by Parliament.
- The writs entered India through the King's Bench powers in the Charter of 1774, passed to the Presidency High Courts in 1861, and became general only in 1950.
Test yourself
1. Why is article 32 called a fundamental right rather than a remedy? Because clause (1) guarantees the right to move the Supreme Court for the enforcement of Part III rights, and the article sits in Part III itself, so it is protected by article 13 and cannot be taken away by ordinary law.
Writ Jurisdiction: Article 32
2. What is the single limit on article 32? It lies only for the enforcement of the rights conferred by Part III. A grievance that is not a breach of a fundamental right cannot be brought under it, though it may be brought under article 226.
3. Is the Supreme Court confined to the five writs? No. Article 32(2) empowers it to issue directions or orders or writs, including writs in the nature of the five, whichever may be appropriate, so the five are illustrative.
4. Explain the relationship between articles 32(2) and 139. Article 32(2) gives the Supreme Court its writ power for fundamental rights, and it needs no statute. Article 139 allows Parliament by law to confer on the Supreme Court power to issue writs for purposes other than those in article 32(2), so its writ jurisdiction beyond Part III is statutory.
5. What does article 32(4) preserve, and what qualifies it? That the right guaranteed by article 32 shall not be suspended except as otherwise provided by the Constitution. Article 359 allows the President during a Proclamation of Emergency to suspend the right to move any court for the enforcement of specified Part III rights, and the Forty-fourth Amendment placed articles 20 and 21 outside that power.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.