Article 32, and Why the Remedy Is Itself a Right

Article 32 and article 226

Article 226 gives every High Court power to issue the same writs, for the enforcement of the fundamental rights and for any other purpose.

Three differences, and each is worth knowing.

Article 226 is wider in subject. It covers any other purpose, so a legal right that is not a fundamental right can be enforced under it and cannot be enforced under article 32.

Article 226 is a constitutional right, not a fundamental one. It is in Part V and can in principle be altered by amendment in a way article 32 cannot.

And article 226 is closer. For a disadvantaged group in a district, the High Court is nearer, cheaper and quicker, which is why most human rights litigation in India happens under article 226 and not under article 32.

Why article 32 nonetheless matters most here

Because of what public interest litigation did to it. The relaxation of locus standi under article 32 is what allowed a person acting bona fide to move the Court for someone unable to move it themselves, and the epistolary jurisdiction treated a letter as a petition under it.

Because it cannot be defeated by an alternative remedy in the way a High Court petition sometimes can. The existence of another remedy is a discretionary bar under article 226 and not a bar to a fundamental right claim under article 32.

And because of 32(4). The right cannot be suspended except as the Constitution itself provides, and since the Forty-fourth Amendment articles 20 and 21 cannot be suspended at all, so the core protections and the route to them both survive an emergency.

What article 32 does not do

It does not enforce a directive principle. Article 37 says the directives are not enforceable by any court, so article 46's promise about the weaker sections is not directly actionable. The route is to read the directive into article 21, which is what Module II is about.

It does not run against a private person, except where the right itself is horizontal: articles 15(2), 17, 23 and 24.

And it does not supply a remedy the Court cannot administer. An order must be capable of being obeyed and supervised, which is why continuing mandamus exists.

Worked example

Any question on enforcement, and the opening of any answer about a group's remedy.

Give the four clauses, and stress that 32(1) makes the remedy itself a right.

Give the five writs in one line each, and say that mandamus is the group's writ.

Give the three differences from article 226, and say plainly that most litigation is under 226.

Give the three reasons article 32 nonetheless matters here: public interest litigation, no alternative remedy bar, and 32(4).

Close on what it does not do, especially the directive principles point.

What it does NOT mean

It does not mean article 32 is the only route. Article 226 is wider and is used far more.

It does not mean the writs are the limit of the Court's power. The words are directions or orders or writs.

And it does not mean a directive principle can be enforced. It cannot, directly; it can be read into article 21.

Quick revision

• 32(1) the right to move the Supreme Court for enforcement of Part III is guaranteed; 32(2) power to issue directions or orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari; 32(3) Parliament may empower another court; 32(4) the right shall not be suspended except as the Constitution provides.
• The remedy is itself a fundamental right, called the heart and soul of the Constitution, and for a group with no property, contract or statutory entitlement it supplies the standing that nothing else does.
• The five writs: habeas corpus against detention; mandamus, an order to perform a public duty, the group's writ; prohibition while proceedings are pending; certiorari to quash; quo warranto against a holder of office.
• Article 226: same writs, and for any other purpose, so it is wider in subject, is a constitutional and not a fundamental right, and is closer to the litigant. Most Indian human rights litigation is under 226.
• Why 32 matters here: public interest litigation and the epistolary jurisdiction grew under it; the alternative remedy bar does not apply; and 32(4) with the Forty-fourth Amendment keeps articles 20 and 21 and the route to them alive in an emergency.
• What it does not do: enforce a directive principle, because of article 37; run against a private person except under the four horizontal articles; or supply an order that cannot be supervised.

Test yourself

1. What does article 32 provide, and why does its placement matter? 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 or 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) permits Parliament by law to empower any other court to exercise those powers within its jurisdiction, without prejudice to the Supreme Court's own. And article 32(4) provides that the right shall not be suspended except as otherwise provided for by the Constitution.

Its placement inside Part III is what makes it a fundamental right rather than a procedural provision, and two consequences follow. The remedy cannot be taken away by ordinary law, because a statute purporting to do so would itself violate a fundamental right. And a claimant does not need to establish any cause of action recognised elsewhere; the violation of a Part III right is itself the cause of action. The Constitution's principal draftsman called it the heart and soul of the Constitution, on the reasoning that a right without a remedy is no right at all. For a disadvantaged group the placement does specific work: a group with no property, no contract and no statutory entitlement has no ordinary cause of action whatever, and article 32 gives it standing to complain of the violation of a right and requires nothing further.

2. Name the writs, and compare articles 32 and 226. Habeas corpus, produce the body, is the remedy against unlawful detention. Mandamus, we command, is an order to a public authority to perform a public duty it has failed to perform, and it is the writ a disadvantaged group uses most often, because its complaint is characteristically that something owed to it was not done. Prohibition is an order to an inferior tribunal to stop exceeding its jurisdiction, issued while proceedings are still pending. Certiorari quashes a decision already made without jurisdiction or in breach of natural justice. And quo warranto asks by what authority a person holds a public office. Article 32(2) is not confined to those five: it empowers directions or orders or writs, and the words including writs in the nature of are what allowed the Indian courts to develop continuing mandamus, judicial monitoring and orders no English writ ever contained.

Article 226 gives every High Court the same powers, and for the enforcement of the fundamental rights and for any other purpose. Three differences follow. Article 226 is wider in subject matter, because any other purpose lets it enforce an ordinary legal right that article 32 cannot touch. Article 226 is a constitutional right and not a fundamental one, sitting in Part V, so it does not enjoy article 32's own protection against alteration. And article 226 is closer: for a disadvantaged litigant in a district the High Court is nearer, cheaper and quicker, which is why most human rights litigation in India is conducted under article 226 rather than article 32.

3. Why does article 32 nonetheless matter most on this paper, and what can it not do? For three reasons. Public interest litigation grew under it: the relaxation of locus standi allowed a person acting bona fide to move the Court on behalf of someone unable to move it themselves, and the epistolary jurisdiction treated a letter as a petition, both under article 32. The alternative remedy objection does not defeat it: the existence of another remedy is a discretionary bar to a High Court petition and is not a bar to the enforcement of a fundamental right under article 32. And article 32(4) provides that the right shall not be suspended except as the Constitution provides, which, read with the Forty-fourth Amendment's exclusion of articles 20 and 21 from suspension under article 359, means that the core protections and the route to them both survive an emergency.

Three things it cannot do. It cannot enforce a directive principle, because article 37 provides that the directives shall not be enforceable by any court, so article 46's promise about the weaker sections is not directly actionable and the route is to read the directive into article 21, which is what the whole of Module II is about. It does not run against a private person, except where the right itself is horizontal, which is to say articles 15(2), 17, 23 and 24. And it cannot supply a remedy the Court is unable to administer: an order must be capable of being obeyed and supervised, which is why continuing mandamus and judicial monitoring developed in exactly the cases where a single order would have been futile.