Article 32

article 32 of the Indian Constitution

Article 32 of the Indian Constitution – Right to constitutional Remedies

powers under Article 32 of the Indian Constitution

Without Article 32 of the Indian Constitution, a mere declaration of the Fundamental Rights is meaningless if people violate them again and again.

Here comes Article 32 of the Indian Constitution, which confers the power to the Supreme Court for issuing writs to enforce the fundamental rights of an aggrieved citizen.

  1. Which Article is called the Heart and soul of the Indian Constitution?

  • Dr. Ambedkar called Article 32 – Right to Constitutional Remedies, ‘the heart and soul of the Indian Constitution‘. An Article without which the constitution will be nullity’.
  • The Supreme Court has also ruled that Article 32 is a ‘Basic Structure of the Constitution’.

Aspirants can read more about the Basic Structure of the Constitution by this linked article. It is Easily Explained here.

  1. Why Article 32 is the soul of the Indian Constitution?

Article 32 Soul of the Indian constitution
  • The right to protect Fundamental Rights is itself a Fundamental Right.
  • One can directly approach to the supreme court if their Fundamental Right is violated. Hence, they call Article 32, the soul of the Indian Constitution.

Purpose & importance of Article 32 of the Indian Constitution

  • The Purpose of Article 32 is to provide a guaranteed protection to the Fundamental Rights.
  • Article 32 only enforces Fundamental Rights.
  • Article 32 cannot enforce any other rights other than fundamental rights.

Artice 32 cannot enforce these rights

  1. Non-Fundamental Constitutional Rights. 
  2. Statutory Rights.
  3. Customary Rights etc.

Orignal and wide powers of the Supreme Court

  • The Supreme Court is the defender and guarantor of the Fundamental Rights of the citizens. Therefore, the constitution has vested the ‘original‘ and ‘wide‘ powers to the Supreme Court. 
  • Orignal because an aggrieved citizen can directly go to the Supreme Court.
  • Wide because the supreme court can issue orders, directions and all kind of writs

Writ Jurisdiction – Article 32 & Article 226

  • Writ Jurisdiction implicitly confers the power of Judicial Review to Supreme Court and the High Court. It is respectively for enforcement/protection of Fundamental Rights of an individual.
  • Supreme Court has further expanded writ jurisdiction by incorporating the concept of Public Interest Litigation (PIL).

Aspirants can read about ‘Public Interest Litigation’ in this linked Article. It is Easily Explained with Examples.

  1. Which country gave the concept of writ jurisdiction?

  • Article 32 – Writ Jurisdiction of the Supreme Court.
  • Article 226 – Writ Jurisdiction of the High court.

Article 226 of the Indian Constitution

article 226 powers to high court
  • During the enforcement of the Fundamental Rights, the jurisdiction of the Supreme Court is ‘Original’ but not exclusive.
  • Article 226 of the Indian Constitution vests the Orignal powers to high court to issue directions, orders, and writs of all kinds to enforce the Fundamental Rights.

Aspirants can read more about Article 226, in this linked article.

  1. Is there anybody other than High Court (under Article 226)  & the Supreme Court (under Article 32) who can issue writs?

  • Yes there are other bodies which can issue writs.

Those bodies are:

Explanation –

For example, if somebody is an employee of the state government & is having some issues against the state government related to his service. Then he can move to the State Administrative Tribunal (SAT) instead of going to the High court or the Supreme court.

However, these tribunals are only supplemental to high courts and Supreme courts. They are not substitute to them. This tribunal had issued writs in the past, but in very few cases.


NOTE – Explanation is for understanding only.

  1. Who gave powers to CAT, JAT, and SAT to issue writs?

  • Under Article 32(3), the Parliament has the power to confer Writ Jurisdiction through law on any other body (apart from the High Court or the Supreme Court).
  • Using such power the Parliament enacted the Administrative Tribunal Act (1985) which conferred writ Jurisdiction on Central Administrative Tribunal (CAT), Joint Administrative Tribunal (JAT), and State Administrative Tribunal (SAT).

NOTE – Parliament gave power to CAT, JAT and SAT to issue writs. Power is not given by the Constitution.

Types of Writs under Article 32

  1. What are the Five types of writs?

Types of writs
  1. Habeas Corpus
  2. Mandamus
  3. Prohibition
  4. Certiorari
  5. Quo Warranto

NOTE – These writs are also available to the High Courts under Article 226.

Aspirants can read about ‘Types of Writs’ in this linked article. It provided simple explanations along with examples. 

 

Now let’s see, in what scenario Fundamental Rights are suspended.

Suspension of Fundamental Right

Parliament can suspend fundamental rights during the National Emergency.

  1. What are the grounds for declaring National Emergency?

After the 44th Amendment Act, there are certain grounds on which the President can proclaim national emergency.

  • War
  • External Aggression
  • Armed Rebellion
  1. War

  • War means when there is a violent struggle between the two countries by using armed forces. It also includes when one country has made a formal declaration of a war against other country.
  1. External Aggression

  • External aggression is an unilateral (one-sided) attacks with force by one state/country against another state without a formal declaration of war.
  • This will be external aggression as long as the other state/country has not answered with similar hostile attacks. 

For Example – KARGIL WAR – Initially they didn’t declare it as a war but as an External Aggression. Later on, the situation became worse, and they declared it as a full-fledged war.

  1. Armed Rebellion

armed rebellion
  • Earlier, the term used before the 44th Amendment Act was ‘Internal Disturbances’ which was completely vague and not clearly defined. This term was used to enforce national emergency in 1975 by the then Prime Minister Smt. Indira Gandhi and created chaos in India.
  • The word disturbance is very subjective. They limited it to a person’s ability to understand the situation surrounding him. All have different perspective about different situations. Some may feel disturbed in a particular situation and some in another. There is clearly no parameter to check the ‘Internal Disturbance’ itself.

  • Now coming to the Armed rebellion, it means waging a war against the state (that is government) by the group of people carrying arms, with the aim to change the political system in a country or to achieve a different political aim.
  • The Armed Rebellion often results in chaos, killing of civilians and security personnel, and often prepares the ground for foreign intervention and hence possesses a threat to sovereignty and integrity of the country.

Few Examples of Armed Rebellion in India

Limitations of Article 32

  1. Article 358 of the Indian Constitution

  • Article 358 of the Indian Constitution says that when an emergency is an external emergency due to war or external aggression, then Fundamental Rights under Article 19 (includes six different freedoms) automatically get suspended.
  1. Article 19

  1. Which article gets suspended during the national emergency?

  • Article 19, which includes six different freedoms of an individual gets automatically suspended during emergency.
  1. Which rights cannot be suspended even during a national emergency?

  • Article 20 and Article 21 are the only articles which are not suspended even during the national emergency. It is given under Article 359.
  1. Article 359 of the Indian Constitution

  • Article 359 of the Indian Constitution says that if the national emergency is declared internally or externally. Then the president by separate order can suspend one or more Fundamental Rights except –
  1. Article 20 – Protection from rest and detention in certain cases
  2. Article 21 – Right to life.

Explanation:

If the president wants to remove any fundamental right during an emergency, he can do so by Article 359. The order is to be submitted to the Parliament and it may disapprove President’s order.

For example, if the Right to Freedom of religion is posing a problem for communal violence during an emergency, the President can put stay to that right by passing an order until an emergency prevails.

  1. Armed forces

  • Article 33 empowers the Parliament to change the application of Fundamental Rights to armed forces, also it has empowered the police to ensure proper discharge of their duties.

Congratulations, you have finished Article 32 of the Indian Constitution. If you have any doubts or queries, feel free to leave a comment below. We will respond as soon as possible.

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MORE ARTICLES:

Article 15Article 16
Article 14Article 24
Article 23Right to Freedom Article [19-22]

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