When Article 32 Is Available, and When It Is Not
Chapter Twenty-Seven
Syllabus topic 3, "Jurisdiction"
Pages 82 to 84 of 430
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.
When Article 32 Is Available, and When It Is Not
Limit four: the restrictions the Constitution itself allows
Article 33. Parliament may by law determine to what extent the rights in Part III shall, in their application to the members of the Armed Forces, to the forces charged with the maintenance of public order, to persons employed in intelligence organisations and to persons employed in the telecommunication systems set up for those forces, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
Article 34. Notwithstanding the foregoing provisions, Parliament may by law indemnify any person in the service of the Union or of a State, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area within India where martial law was in force, and may validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law.
Article 35. Parliament, and not a State legislature, has the power to make laws with respect to the matters in Articles 16(3), 32(3), 33 and 34, and with respect to prescribing punishment for the acts declared offences under Part III.
Together these three articles are a reminder that Part III is not absolute even in its own terms.
Limit five: suspension in an Emergency
Article 359(1) permits the President, while a Proclamation of Emergency is in operation, to declare by order that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order shall remain suspended. What that produced is Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, worked in [Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur]. The Forty-fourth Amendment inserted clause (1A) and amended the article so that Articles 20 and 21 cannot now be suspended.
Limit six: the Court's own discretion
Article 32 is a right to move the Court; it is not a right to a particular order. Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, puts it exactly: Article 32 gives the right to move the Court and the State cannot place any hindrance in the way of an aggrieved person, but once the matter has reached the Court the extent or manner of interference is for the Court to decide. That is why laches, res judicata and the availability of an alternative remedy operate under Article 32 as well, though less strictly than under Article 226.
When Article 32 Is Available, and When It Is Not
A worked example
Four petitioners come to the Supreme Court on the same day. The first says a State law taxing his trade is confiscatory. The second says the Sales Tax Officer wrongly held his goods to be taxable at twelve per cent instead of five. The third says a High Court judgment against him is contrary to Article 14. The fourth, a soldier, says the Army Act denies him the right to form an association.
The first is maintainable: a statute is challenged for infringing Article 19(1)(g). The second fails on Ujjam Bai: it is an error within jurisdiction under a valid law. The third fails on Mirajkar: a judicial order of a competent court is not amenable to Article 32, and his remedy is an appeal or, at the last, a curative petition under Rupa Ashok Hurra. The fourth fails so far as the restriction is authorised by Article 33.
What this does NOT mean
It does not mean Article 32 is narrower than it looks in practice. Public interest litigation, the arbitrariness doctrine and the power to give directions and compensation have made it very wide.
It does not mean an alternative remedy bars Article 32. Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080, holds that it is not a bar as it may be under Article 226, though the Court often relegates a petitioner to the High Court on facts.
It does not mean Article 359 was repealed. It was amended: Articles 20 and 21 are now protected from suspension, but the article itself remains.
Quick revision
Six limits: a fundamental right must be infringed; an error within jurisdiction under a valid law is not an infringement, which is Ujjam Bai; a judicial order of a competent court is outside Article 32, which is Mirajkar and Rupa Ashok Hurra; Articles 33, 34 and 35 permit restriction for the Forces, indemnity after martial law and Parliament's exclusive power; Article 359 permits suspension in an Emergency, subject now to Articles 20 and 21; and the manner of interference is for the Court, which is Tilokchand Motichand.
Test yourself
1. Why did Ujjam Bai fail? Because the authority acted under a valid law and within its jurisdiction, and a wrong construction within jurisdiction does not violate a fundamental right; the remedy was an appeal or certiorari under Article 226.
2. What did the Forty-fourth Amendment change about Article 359? It provided that the rights conferred by Articles 20 and 21 cannot be suspended, so a habeas corpus petition on those grounds survives an Emergency.
3. Does an alternative remedy bar a petition under Article 32? Not as a matter of law: Kochuni. But the Court frequently sends the petitioner to the High Court where facts must be investigated.
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.