Writ Jurisdiction: Article 32

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.