Article 32: the Remedy That Is Itself a Right

And clause (2) names the writs, so the Court's power does not depend on any statute conferring jurisdiction.

Clause (4) and the Emergency

The right shall not be suspended except as otherwise provided for by this Constitution.

The Constitution does so provide, in article 359, which permits the President by order to suspend the right to move any court for the enforcement of Part III rights during a proclamation of emergency.

During 1975 to 1977 that power was used, and the resulting position was that a detained person could not approach a court even to allege that the detention was wholly without legal authority. The Supreme Court's acceptance of that position is the low point of its record.

The Forty-fourth Amendment answered it by excluding articles 20 and 21 from the article 359 power. The enforcement of those two articles can no longer be suspended, so the situation of 1975 cannot recur in the same form.

That sequence is the single most important thing to know about article 32 on a human rights paper, because it is the case study of a remedy that existed on paper and failed in the event.

What article 32 has become

Three developments, all of which belong to Module II and are named here.

Standing was relaxed. The words appropriate proceedings were read to permit a public spirited person to move the Court on behalf of those unable to do so, which is the doctrinal basis of public interest litigation. [The Relaxation of Locus Standi] takes it.

Procedure was relaxed. A letter has been treated as a petition, which is the epistolary jurisdiction.

And the remedies expanded. Compensation, continuing mandamus and guidelines binding until Parliament legislates all issue under article 32 and article 226, and none of them is named in clause (2).

Clause (2)'s words permit all of this: directions or orders or writs, including writs in the nature of the five named. Including is not exhaustive, and in the nature of frees the Court from the technical requirements of the English writs.

The limits

Three, and stating them keeps an answer honest.

It enforces Part III only. A violation of a statutory right, or of a directive principle, does not found an article 32 petition on its own. This is why so much of Indian human rights litigation is framed as an article 21 claim: article 21 is the door.

Disputed questions of fact are unsuitable. The Court has no machinery for trial, and will frequently relegate a petitioner to a suit or to the High Court.

And the remedy reaches the petitioner. A writ protects those before the Court, and a population cannot be protected by litigation, which is the limitation that runs through Module III.

The international correspondence

Article 8 of the Universal Declaration: everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law.

Article 2(3) of the Civil and Political Covenant requires each State party to ensure an effective remedy, to ensure that the claim is determined by competent judicial, administrative or legislative authorities, and to ensure that the competent authorities enforce such remedies when granted.

Article 2(3)(c) is the limb India satisfies least well, because it is directed at enforcement of the remedy once granted, and that is precisely the gap Module III examines.

Worked example

A question on enforcement, on article 32, or on the remedy for a violated right.

Quote all four clauses, because clause (4) is where the Emergency argument lives.

Give the article 32 against article 226 table, and stress that article 226 is wider in purpose.

Give Ambedkar's reason and the article 13(2) point: the remedy cannot be legislated away.

Give the Emergency sequence: article 359, the 1975 position, the Forty-fourth Amendment.

Give the three developments and the three limits.

Close on article 2(3) of the Covenant, and say that the weakest limb is enforcement of the remedy once granted.

What it does NOT mean

It does not mean the Supreme Court must hear every petition. It must not refuse relief where a fundamental right is established, but it may regulate its own procedure and relegate unsuitable matters.

It does not mean article 32 covers statutory rights. It enforces Part III.

And it does not mean the right can never be suspended. Article 359 exists; what changed in 1978 is that articles 20 and 21 are outside it.

Quick revision

• 32(1) the right to move the Supreme Court by appropriate proceedings for enforcement of Part III is guaranteed. 32(2) power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. 32(3) Parliament may empower other courts. 32(4) not suspended except as otherwise provided for by this Constitution.
• Article 32A, which barred consideration of State law validity, was omitted by the Forty-third Amendment.
• Six differences from article 226, and the one that matters is that article 226 is wider in purpose: Part III rights and for any other purpose.
• Ambedkar: the very heart and soul of the Constitution. A law abridging it would be void under article 13(2).
• Emergency: article 359 permitted suspension; used in 1975 to 1977; the Forty-fourth Amendment put articles 20 and 21 outside it.
• Three developments: standing relaxed on the words appropriate proceedings; epistolary jurisdiction; and remedies beyond the named writs, permitted by including and in the nature of.
• Three limits: Part III only; disputed facts unsuitable; and the remedy reaches the petitioner.
• Correspondence: article 8 of the Declaration; article 2(3) of the Covenant, whose (c) limb, enforcement of the remedy once granted, is the one India satisfies least well.

Test yourself

1. Set out article 32 and explain why the remedy was made a right. Clause (1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. Clause (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. Clause (3) permits Parliament by law to empower any other court to exercise, within the local limits of its jurisdiction, all or any of those powers. Clause (4) provides that the right shall not be suspended except as otherwise provided for by the Constitution. Article 32A, which had barred the Supreme Court from considering the constitutional validity of a State law in an article 32 proceeding, was omitted by the Forty-third Amendment.

The remedy was made a right because a right without a remedy is not a right. Ambedkar called article 32 the article without which the Constitution would be a nullity and described it as its very heart and soul, and his argument was that an elaborate declaration of rights with no guaranteed route to a court would be a declaration and nothing more. Making the remedy itself a fundamental right has a precise legal consequence: Parliament cannot abridge it by ordinary legislation, because any law doing so would be void under article 13(2). And because clause (2) names the writs in the Constitution itself, the Court's power to issue them does not depend on any statute conferring jurisdiction.

2. How does article 32 differ from article 226, and which matters more in practice? Article 32 is itself a fundamental right; article 226 is a constitutional power of the High Courts and is not a fundamental right. Article 32 lies only for the enforcement of Part III rights; article 226 lies for the enforcement of Part III rights and for any other purpose, which makes it substantially wider. Article 32 runs to the Supreme Court, article 226 to the High Courts. Relief under article 32 cannot be refused where a fundamental right is established, though the Court may regulate its procedure and relegate unsuitable matters; relief under article 226 is discretionary. Article 32 is subject to suspension under article 359 in the manner the Constitution provides; article 226 is not subject to it in the same way. And article 32 has all-India reach, while article 226 is confined to the High Court's own jurisdiction, extended by article 226(2) where the cause of action arises within it.

Article 226 matters more in practice, and for this paper that is the significant point. Because it lies for any other purpose it can reach a statutory violation, an administrative illegality or an ordinary abuse of power without the petitioner having to construct an article 21 argument first. Most human rights litigation in India therefore begins in a High Court, and the reported decisions restraining deportation, ordering release from prolonged detention, directing the issue of documents and requiring the State to act are overwhelmingly article 226 decisions rather than article 32 ones.

3. What happened to article 32 during the Emergency, and what was done about it? Clause (4) provides that the right shall not be suspended except as otherwise provided for by the Constitution, and the Constitution does so provide in article 359, which permits the President by order to suspend the right to move any court for the enforcement of the Part III rights during a proclamation of emergency. That power was exercised during the Emergency of 1975 to 1977. The consequence was that a person detained could not approach any court even to allege that the detention was wholly without legal authority, and the Supreme Court accepted that position. It is treated as the low point of the Indian judicial record on human rights, and it demonstrated that a remedy which exists on paper can fail entirely in the event that most requires it.

What was done about it was the Forty-fourth Amendment, which excluded articles 20 and 21 from the article 359 power. The enforcement of those two articles can therefore no longer be suspended in any emergency, so a detained person retains the right to approach a court to test the legality of the detention whatever proclamation is in force. That is the single most important thing to know about article 32 on a human rights paper, because the sequence shows both what a constitutional remedy is worth and what it is not worth: it is worth a great deal when the courts are willing to use it, and it required a constitutional amendment rather than a judicial correction to make it secure.