Protecting Article 32

Context: The Chief Justice of India is reported to have stated during the hearing of journalist Siddique Kappan’s bail matter, that the Court was trying to “discourage” recourse to Article 32.

What does article 32 says?

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
• CJI M Hidayatullah in Tilokchand (1970) said that what Article 32 does is to keep open “the doors of this court” and requires the state not to put any hindrance to a person seeking to approach the Court.

What are exceptions to the article 32?

• The Court regards Article 32 as a judicial power subject to the fundamental principles of administration of justice.
• It does not mean that the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like.
• Justice MP Thakkar and Kanubhai Brahmbhatt observed that time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego and to inspire confidence in the litigants that justice will be meted out to them.
• Even if there is a constitutional right to remedies it remains subject to the discipline of judicial power and process.
• Article 33 clearly says that the right will not extend to the members of armed forces.
• Justice Patnaik maintains that the article 33 and 34 will not eclipse the right of a person detained without the authority of law to move for habeas corpus.

How the new facets of article 32 evolved?

• In 1950, it has ruled that powers under Article 32 are not limited to the exercise of prerogative writs.
• In 1987 the Court ruled that it has powers to rule for compensation of violation of fundamental rights.
• In 1999 it said that this power extended to the rectification of its own mistakes or errors.
• The Court has also upheld (in 1997) the 50th amendment enlarging the scope of this article against a challenge of the basic structure of the Constitution.

What are the issues have been raised?

• CJI or the Court as a whole should not suffer from epistemic collapse so as to receive sharp reminders and rebukes from citizen commentators.
• Article 32 does not merely confer wide powers on the Court but also the judicial duty to provide constitutional remedies.
• Lawyers and justices know what distinguishes Article 32 from Article 226 is the very dimension of it. HCs have the discretion to act or not to.
• Article 32 is not absolute. The Supreme Court decides on what “appropriate proceedings” should be for it to be so moved.
• Discrimination in bail where one case is fast tracked whereas others are consigned to slow moving judicial action.
• Scandalous judicial delays and a bold resolution of “who watches the watchman” syndrome demand urgent response.

Article 32 makes the apex court into a “people’s court” and in future we should be able to conclude that the Court did not deliberately dealt deathblows to the “soul” of the Constitution.

Fundamental Rights