When Article 32 Is Available, and When It Is Not

In one line

Article 32 is a guaranteed right, but it is a guaranteed right to enforce a fundamental right against the State, and every word of that sentence is a limit.

In the wording a student can write in an exam: Article 32 is available only where a fundamental right conferred by Part III is infringed, only against the State or a body answering Article 12, and only where the infringement is not the result of a judicial order of a competent court; the right may be restricted for the Forces under Article 33, is displaced by martial law under Article 34, is subject to Parliament's power under Article 35, and may be suspended during an Emergency under Article 359.

Limit one: a fundamental right, and nothing else

A petition under Article 32 must show that a right in Part III is infringed. A breach of a statute, of a rule, of a contract, or of an ordinary legal right is not enough. This is the difference from Article 226, which is available "for any other purpose".

The limit has an important qualification. Article 14 is a fundamental right, and after E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, arbitrariness violates Article 14. So a great deal of ordinary administrative illegality can be converted into an Article 14 point, which is why the limit is less confining in practice than it looks on paper.

Limit two: not against a mere error within jurisdiction

Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621.

Facts. A sales tax authority acting under an admittedly valid statute and within its jurisdiction misconstrued a notification and assessed a manufacturer on goods which were arguably exempt. The assessee came directly under Article 32, saying that an illegal tax infringed her rights to property and to trade.

Held. The petition failed. A quasi-judicial authority acting under a valid law and within its jurisdiction does not violate a fundamental right merely by deciding a question of fact or of construction wrongly. The error is within jurisdiction and the remedy is an appeal or certiorari under Article 226, not a petition under Article 32. An order can be attacked as ultra vires where the statute is unconstitutional, where the authority acts outside its jurisdiction, or where it violates a fundamental right independently of the statute.

Why it matters here. It is the discipline that stops Article 32 becoming a general appeal from every wrong assessment in India.

Limit three: not against a judicial order

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, holds that a judicial order of a competent court cannot violate a fundamental right and that certiorari does not run against a High Court, which is a superior court of record; the remedy is an appeal. Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771, confirmed the position for the Supreme Court's own final judgments and created the curative petition instead.