Article 32 and the Writs

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

Broken down

"Is guaranteed", not "may be exercised". Clause (1) is in the language of a right, not a jurisdiction, and that word is what Romesh Thappar turned on.

"By appropriate proceedings". The Constitution prescribes no form; what is appropriate is judged by the purpose, the enforcement of a fundamental right. This is the textual hook on which the letter petition was later hung, developed in [Public Interest Litigation].

"Including writs in the nature of". Two things follow. The power is not confined to the five named writs, because the word is "including" and the primary words are "directions or orders or writs". And the writs are in the nature of the English prerogative writs, so the technical restrictions of English practice do not bind the Court.

"For the enforcement of any of the rights conferred by this Part". This is the limit. Article 32 is not a general remedy for illegality; a breach of an ordinary statutory right does not open it.

Clauses (3) and (4). Parliament may spread the power outwards but not take it from the Supreme Court, since clause (3) operates "without prejudice" to clauses (1) and (2); and suspension is possible only where the Constitution itself provides for it, which means article 359, from which articles 20 and 21 are now excepted, as set out in [Article 20: The Protections of an Accused].

The five writs

Two points carry marks. Prohibition and certiorari differ by timing: prohibition is preventive and issues while the proceeding is alive, certiorari is corrective and issues after the order; both may be sought together where a tribunal has decided part of a matter and is continuing with the rest. Mandamus does not lie to enforce a private or contractual obligation, nor to compel an authority to decide in a particular way, only to decide.

The remedy is itself the right

Facts. Romesh Thappar v. State of Madras, 1950 AIR 124, 1950 SCR 594, decided 26 May 1950. The petitioner printed and published a weekly journal in Bombay called Cross Roads. Under section 9(1-A) of the Madras Maintenance of Public Order Act 1949, the Government of Madras prohibited its entry into and circulation in that State. He petitioned under article 32, saying the order violated article 19(1)(a). The Advocate-General took a preliminary objection: not to the jurisdiction, but to the petitioner coming directly when the High Court at Madras had concurrent power under article 226.

Held. The objection was overruled by the Full Court. Article 32 "does not merely confer power on this Court, as article 226 does on the High Courts, to issue certain writs" as part of its general jurisdiction; had it been that, "it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction". Instead, "Article 32 provides a 'guaranteed' remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. 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." American practice requiring other remedies to be exhausted first was held not in point. On the merits, freedom of speech includes the freedom of propagation of ideas, ensured by freedom of circulation, and section 9(1-A) was wholly void.

Why it matters. It is the authority for the two propositions every answer on article 32 begins with: that the remedy is itself a fundamental right, and that the Supreme Court cannot turn a petitioner away merely because a High Court could have heard him. Note what it does not say. It does not say the Court must grant relief; it says it cannot refuse to entertain the application, and the difference between entertaining and allowing is where the later law on discretion lives.

Where article 32 stops

Facts. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, (1966) 3 SCR 744, decided 3 March 1966 by nine judges. In a defamation suit on the original side of the Bombay High Court, a witness asked that his evidence not be published because his business would suffer, and the trial judge made an oral order prohibiting publication. Journalists, strangers to the suit, moved the Supreme Court under article 32, saying the order violated article 19(1)(a).

Held. The order was within the inherent power of the High Court, which may hold a trial in camera where the ends of justice require it. An order made by a court which has jurisdiction to make it, applying a law valid in all respects, cannot offend a fundamental right, and such a court does not act without jurisdiction by making an error in applying the law. As to article 32, the High Court is a superior court of record; the order being a judicial order, a person aggrieved by it, though a stranger, could move the Supreme Court under article 136 and have it corrected in appeal, but "the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings under Art. 32." Sarkar J. added that this Court has no power to issue a certiorari to a High Court, which is not an inferior court. Hidayatullah J. dissented.

Why it matters. It marks the outer edge of article 32 on the side nobody expects: not the State's power, but the courts' own. A judicial order within jurisdiction is not treated as a violation of a fundamental right, and the remedy for it is appeal, not a writ. The reasoning, and the three capacities in which a court can act, are worked out in [Is the Judiciary "State"?].

Can article 32 be refused?

The honest answer has three parts, and weak answers give only the first.

Not for the reason argued in Romesh Thappar. A concurrent remedy in the High Court is no ground to decline. That is one difference between article 32 and article 226, where an alternative remedy is a standing objection, dealt with in [Article 226].

Yes, where the case is outside the article. Article 32 is for "the enforcement of the rights conferred by this Part". A petitioner who shows only a breach of contract or an ordinary legal wrong has not brought himself within clause (1), and fails on scope, not discretion. So too where the order complained of is a judicial order within jurisdiction, on Mirajkar.

Yes, in the exercise of discretion. The Court has working reasons for sending a petitioner elsewhere: disputed facts needing evidence, local facts the High Court is better placed to find, a petitioner not acting bona fide, or delay. These are reasons of practice, and the decisions establishing them have not been read for this book, so no case is cited. The jurisdiction cannot be ousted; its exercise on a given day can be regulated.

Parliament once tried to shrink the article. Article 32A, inserted by the Constitution (Forty-second Amendment) Act 1976 with effect from 1 February 1977, barred the constitutional validity of State laws from being considered in proceedings under article 32. It was omitted by the Constitution (Forty-third Amendment) Act 1977 with effect from 13 April 1978.

A worked example

Anjali is picked up by the police and not produced before a Magistrate. Her trade licence application has lain undecided for a year. A statutory tribunal, which she says has no jurisdiction over her, has begun hearing a complaint against her and has already passed one order. Its chairman was appointed although he lacks the qualification the statute requires.

Step one, is a fundamental right engaged? For the detention, yes: articles 21 and 22. Article 32(1) is open for that, and the writ is habeas corpus, which runs against whoever holds her, the burden of justifying the detention being on the detainer.

Step two, the undecided licence. Mandamus, but it commands the authority to decide, not to decide in her favour. If the delay is the only grievance and no fundamental right is engaged, article 32 is the wrong door.

Step three, the tribunal that is still hearing. Prohibition, to stop it proceeding beyond jurisdiction; and for the order it has already made, certiorari, to quash it. The two are asked together in one petition.

Step four, the chairman. Quo warranto, calling on him to show the authority by which he holds the office.

Step five, where to file. All of it can go to the High Court under article 226, which is wider. Only what enforces a fundamental right can go to the Supreme Court under article 32, and on Romesh Thappar the Court cannot refuse that merely because the High Court was available.

What it does NOT mean

It does not mean article 32 is a general appeal. It enforces Part III and nothing else; a wrong that is only a legal wrong belongs under article 226.

It does not mean the Court is confined to the five writs. Clause (2) says "directions or orders or writs, including" them, which is why compensation and continuing directions were possible at all, as [Compensatory Jurisprudence] shows.

It does not mean the petitioner must be the person injured. Nothing in clause (1) says whose right must be at stake, and that silence is the foundation of [Public Interest Litigation].

It does not mean article 32 survives everything. Clause (4) permits suspension where the Constitution provides for it, and what that produced during the Emergency is described in [Article 21: From Gopalan to Maneka].

Quick revision

• Article 32(1): the right to move the Supreme Court by appropriate proceedings to enforce Part III rights is guaranteed, and is itself a fundamental right.
• Romesh Thappar: the Court is "the protector and guarantor of fundamental rights" and cannot refuse to entertain a petition merely because the High Court had concurrent power under article 226.
• Article 32(2): directions, orders or writs, "including writs in the nature of" the five named. The list is not exhaustive.
• Prohibition stops a proceeding; certiorari quashes an order; mandamus commands a decision, not a particular decision; quo warranto tests title to a public office.
• Article 32(3): Parliament may empower other courts, without prejudice to the Supreme Court's own power. Article 32(4): no suspension except as the Constitution provides, that is article 359, and articles 20 and 21 are now outside it.
• Article 32 lies only for a fundamental right, and not against a judicial order of a superior court within jurisdiction (Mirajkar); the remedy there is an appeal under article 136.
• Article 32A, which would have barred challenges to State laws under article 32, was inserted in 1976 and omitted in 1977.

Test yourself

1. Why is the right under article 32 described as itself a fundamental right, and what did Romesh Thappar infer from the placing of the article in Part III?

2. Distinguish prohibition from certiorari, and give one situation where both are sought.

3. "The Supreme Court can never refuse a petition under article 32." Assess that statement in three parts.

4. What could the journalists in Mirajkar have done instead, and why was that the right route?

5. Article 32(2) names five writs. Why is the Court not limited to them?