Article 32

Mandamus, we command. Issued to a public authority requiring it to perform a public duty it has refused or failed to perform. It does not lie to compel the performance of a discretionary act in a particular way, only to compel the exercise of the discretion.

Prohibition. Issued to an inferior court or tribunal forbidding it to proceed in a matter beyond its jurisdiction. It is preventive and issues while the proceeding is pending.

Certiorari. Issued to an inferior court or tribunal to quash an order made without jurisdiction, in excess of jurisdiction, in violation of natural justice, or vitiated by an error of law apparent on the face of the record. It is corrective and issues after the order.

Quo warranto, by what authority. Issued against a person holding a public office, requiring him to show the authority by which he holds it.

For this paper the first is central and the fourth matters, because an order of detention made by an authority not empowered to make it can be quashed.

The limits on article 32

An answer that only praises the article will be thin. Five limits are examinable.

Only fundamental rights. A breach of an ordinary statutory right, however serious, does not found a petition under article 32. The remedy is article 226 or the ordinary courts.

Against the State. Part III rights are, with stated exceptions such as articles 17, 23 and 24, rights against the State as defined in article 12, so a petition ordinarily lies against the State and not against a private person.

Disputed questions of fact. The Court will ordinarily decline to decide contested facts on affidavit and will send the matter to a more suitable forum, though in a habeas corpus matter it will not refuse relief merely because facts are disputed.

Alternative remedy. The existence of an alternative remedy is not a bar, since the right is guaranteed, but the Court in practice asks petitioners to approach the High Court first.

Article 359. A Presidential order may suspend the right to move any court, including the Supreme Court, for the enforcement of specified Part III rights, except articles 20 and 21.

Article 32 and the emergency

The relation is exact and should be stated precisely, because most students state it loosely.

Article 359 does not repeal article 32. It suspends the right to move any court for the enforcement of the rights named in the order, for the period specified.

Clause (4) authorises that. The right guaranteed by article 32 shall not be suspended except as otherwise provided for by this Constitution, and article 359 is such a provision.

But since 1978 there is a limit. Articles 20 and 21 cannot be named in an order, so the right to move the Supreme Court to enforce them survives every emergency.

And judicial review cannot be amended away. On L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, the jurisdiction under article 32 is part of the inviolable basic structure.

Put those four together and the modern position is this: article 32 can be suspended, but only by an order under article 359, only for rights other than articles 20 and 21, and only for the life of the Proclamation; and it cannot be abolished at all.

What article 32 has become

A modern answer should say something about the article's expansion, without overstating it.

Standing was relaxed. The requirement that the petitioner be the person aggrieved was relaxed so that a public spirited person may move for those unable to move themselves, which is the foundation of public interest litigation.

Procedure was relaxed. A letter has been treated as a petition, and a court may act on a communication from a prisoner.

Remedies were expanded. Beyond the five writs, the Court has awarded compensation for the violation of fundamental rights, issued guidelines where the field was unoccupied by legislation, and retained matters for continuing supervision.

Each of these is taken further in [Access to Courts in Practice: Legal Aid and Public Interest Litigation] and in [Judicial Activism]. The point to hold here is that all of it rests on the two words appropriate proceedings and on the word including in clause (2).

A worked example

A person is detained by an officer who is not among those empowered by the statute to detain. A Presidential order under article 359 suspends the right to move any court for the enforcement of articles 14, 19 and 22.

Which writ? Habeas corpus, and if the detaining officer purported to act in an office he did not hold, quo warranto against him would also lie.

Is article 32 available? The order does not name articles 20 or 21, and could not; so a petition for the enforcement of article 21 lies.

What is the article 21 point? That detention by an officer not empowered by the statute is not a deprivation of personal liberty according to procedure established by law.

Could the petition have been brought under article 22(5)? The right exists but its enforcement is suspended by the order.

Could Parliament abolish article 32 by amendment? No. On L. Chandra Kumar the jurisdiction is part of the inviolable basic structure.

Would the Court decline because the High Court was nearer? It might ask the petitioner to move the High Court, but the right under article 32 is guaranteed and cannot be refused on the ground that another remedy exists.

What it does NOT mean

Article 32 is not an appeal. It is an original jurisdiction for the enforcement of fundamental rights.

It is not confined to the five writs. Clause (2) says directions or orders or writs, including those five.

It is not available for every legal wrong. Only for the enforcement of Part III rights.

It is not absolutely unsuspendable. Clause (4) itself contemplates the exception the Constitution provides in article 359, subject now to articles 20 and 21.

Quick revision

• 32(1): the right to move the Supreme Court by appropriate proceedings for the enforcement of Part III rights is guaranteed, and is itself a fundamental right.
• 32(2): directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate.
• 32(3): Parliament may empower any other court to exercise those powers within its local limits.
• 32(4): not to be suspended except as otherwise provided by the Constitution, which is art 359.
• Limits: fundamental rights only; ordinarily against the State; disputed facts; the practice of sending petitioners to the High Court; and art 359.
• Expansion: relaxed standing, letters treated as petitions, and remedies beyond the writs, all resting on appropriate proceedings and on the word including.

Test yourself

1. What exactly does clause (1) guarantee? The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, the guarantee being itself one of those rights.

2. Why does the word including in clause (2) matter? Because the Court's power is not confined to the five named writs or their English technicalities; it may issue any direction or order appropriate to enforce the right, which is the basis of compensation, guidelines and continuing mandamus.

3. Name the five writs and say which two matter most in this paper. Habeas corpus, mandamus, prohibition, quo warranto and certiorari; habeas corpus, which tests a detention, and quo warranto, which can be used where the detaining authority holds no such office.

4. State the relation between article 32 and article 359. Article 359 does not repeal article 32; it suspends the right to move any court for the enforcement of the rights named in the Presidential order for the period specified, which clause (4) of article 32 expressly permits, and since 1978 articles 20 and 21 cannot be named.

5. Can article 32 be taken away by a constitutional amendment? No. On L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, the jurisdiction conferred on the Supreme Court by article 32 and on the High Courts by articles 226 and 227 is part of the inviolable basic structure.