Right to Constitutional Remedy: Significance of Article 32

Author(s): Nirmalendu Bikash Rakshit

Source: Economic and Political Weekly, Vol. 34, No. 34/35 (Aug. 21 - Sep. 3, 1999), pp.
2379-2381
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4408327
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 fabric of national security. He observed,
Right to Constitutional Remedy "...it is equally clear that in certain cases,
where, for example, the state's very life
Significance of Article 32 is in jeopardy, these rights must be subject
to a certain amount of limitations". Par-
Nirmalendu Bikash Rakshit ticularly, the Constitution was drafted
during a period of horrid ordeal marked
A mere enumeration of rights, even if it is meticulously worded by war, infiltration, partition, communal
is not
riots and other subversive activities (D D
enough. What is needed is a provision for its enforcement, an avenue
Basu, Introduction to the Constitution of
for redressal. Article 32 of the Indian Constitution enshrines this
India, p 100). This is why, the makers felt
provision whereby individuals may seek redressal for the violation of
that during an emergency, the enforce-
their fundamental rights. ment of fundamental rights should remain
suspended because the unrestrained right
THE Constitution of India has engrafted
issuing an appropriate writ for the resto- of the individual might, in such times,
several fundamental rights in Chapterration
III. and maintenance of the rights endanger the security of the nation as a
But, the writers of the Constitution knew
unduly curtailed by any other person or whole.
authority.
well that a mere declaration of such rights But, in normal times, fundamental rights
hardly ensures their practical existence (iii)
in Thirdly, the parliament may, by seem to be 'fundamental'. In the case of
political life. In reality, rights must beenpower any other court with such
law, Ram Singh vs Delhi the Supreme Court
enforceable by the judiciary, otherwise authority so that it too can act as the observed, "It is our privilege and duty to
they are sure to remain as mere 'paper-protector and guarantor of such rights. see that rights which are intented to be
rights'. This is why, they provided forAsa it is often observed, rights without fundamental are kept fundamental..." So,
guaranteed remedy in case of infringe- remedy is a meaningless formality. So, the Supreme Court has to intervene when-
very wisely, the founding fathers have
ment of such rights. Constitutionally, they ever a fundamental right has been trans-
engrafted Article 32 by which the indi-
relied upon the superior courts - particu- gressed upon. J Sastri similarly claimed
vidual may secure a guaranteed remedy
larly the Supreme Court - for undertaking in the case of Row vs Madras that they
this stupendous responsibility. in case of the infringement of fundamental were "sentinel on the qui vive", and hence,
A mere enumeration of rights, even in Article 32, with its first three clauses,
rights. it is their bounden duty to save their rights
the most elaborate and meticulously
has necessarily done the job. As M V from being ruined.
worded form, is not enough. WhatPylee
is rightly claims, "the first three sec- Thus, as the judicial sentinel of funda-
needed, in addition to all this, is the tions of the article, taken together, make mental rights, they are equipped with some
provision for their enforcement (J C Johari,fundamental rights under the Constitution constitutional weapons, known as 'writs',
Indian Government and Politics, p 109).real and, as such, they form the crowing for the enforcement of such rights.
So, if and when a person feels that he ispart of the entire chapter" (Constitutional (i) First, the writ of Habeas Corpus
unduly deprived of any of the fundamentalGovernment in India, pp 60-62). (meaning 'you may have the body') may
rights, he can, under Article 32 of our (iv) Fourthly, clause (4) of the Consti- be issued in order to set free a person who
Constitution, move the Supreme Court fortution, however, mentions an exception. is, in the opinion of the court, arbitrarily
a legal remedy. In this sense, this articleWhen the president proclaims an emer- arrested or detained by the executive
is, really, novel one and as B P Gajendra-gency under Article 352, the provision for authority.
gadkar (Constitution of India, pp 60-62), guaranteed remedy of fundamental rights (ii) Secondly, there is the writ of Man-
a former chief justice of India, has ob-remains suspended. In such times, the damus. The Latin word 'Mandamus' means
served, it is "a very distinguishing featurepresident may, under Article 358, make 'we order'. The Supreme Court can issue
of the Constitution". According to him, a separate proclamation by which Article this writ for the reason of directing an
it is the "cornerstone of the democratic 32 remains suspended (H H Das, Prin- inferior court or department to do the
edifice raised by the Constitution". Thisciples of Indian Constitution, p 136). In needful for protecting or maintaining a
observation is true as far as it goes. other words, an individual cannot, during Fundamental Right. It is normally used
Article 32 has four parts: such emergency, move the Supreme Court, for public purposes to enforce performance
(i) First, under Article 32(i), an aggrievedeven if he feels that he has been unduly of public duties. But the court often en-
person can move the Supreme Court fordeprived of the Fundamental Right guar- forces some private rights when they are
a legal remedy in case of an alleged anteed by the Constitution. withheld by the public officers.
infringent of his Fundamental Right. In Obviously, it is a black spot on the fair The writ actually demands some activ-
such case, it is the constitutional duty offace of the Constitution which claims to ity on the part of the body or person to
the apex court to look into the matter and stand for democracy and freedom (M V whom it is addressed. Whenever a public
to provide necessary redress to the af-Pylee, An Introduction to the Constitution officer or the government has done an act
fected person. of India, p 117). But B R Ambedkar, thewhich violates the Fundamental Right of
(ii) Secondly, in such case, the Supreme chief architect of the Constitution, ob- a person, the court can issue this writ
Court protects the fundamental rights with served in the constituent assembly that the restraining that officer or the government
the help of the constitutional weapon of interests of the state as a whole are of muchfrom enforcing that order.
'writs'. So, when an aggrieved person greater importance than those of the in- (iii) Thirdly, the Supreme Court some-
eagerly moves the Supreme Court under dividual and, hence, individual liberty times issues the writ of 'prohibition' for
Article 32, it has to protect the rights by cannot be allowed to destroy the very preventing an inferior court from doing

Economic and Political Weekly August 21-28, 1999 2379

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something which it is not legally compe- this remedial right is itself made a Fun- The Government and Politics in India,
tent to do. damental Right, being included in part III" p 42). In case an executive order or leg-
(iv) Fourthly, there is another writ known (D D Basu, op cit, p 110). islative enactment violates any of the fun-
as 'certiorari' with which the Supreme So, when the individual seeks the damental rights, the Supreme Court can,
Court can remove a case from an inferior protection of any fundamental right byunder Article 13(2), declare it unconsti-
court to a superior court in order to protectArticle 32, the court's fundamental dutytutional and void. So, every law or act
a Fundamental Right. is to carefully hear the appeal. As itmust conform to the fundamental rights
(v) Lastly, with the help of 'quo observed in the case of Ramesh Thapper as enshrined in chapter III. Grenville Austin
warranto', the Supreme Court can protect vs Punjab, "The Supreme Court is, thus, rightly (in The Indian Constitution: Cor-
a Fundamental Right from being violated constituted the protector and guarantor ofnerstone of the Nation, p 114) observes
by a government order based upon Fundamental Right and it cannot, consis-that the heaps of applications before the
favouritism. If a person, for example, is tently with the responsibility so laid uponSupreme Court proves that the people of
unduly promoted by superseding his se- it, refuse to entertain applications seekingIndia are very conscious of their funda-
niors, the Supreme Court can, by such protection against infringement of suchmental rights and that they regard the
writ, quash the order of such appointment rights. Supreme Court as the guardian of the
for protecting the Right to Equality as Significantly, Ambedkar was glad that rights and liberties of the citizens.
guaranteed by Article 14 and Article 16. the constituent assembly realised the im- Some critics, however, think that finan-
As the Supreme Court itself held in the portance of this article. As he happily cial disabilities have virtually taken away
case of Charanjitlal vs Union, the indi- declared. "Hereafter, it would not be the real significance of Article 32. Le-
vidual can move the court only when he possible for any legislature to take away gally, every citizen has equal opportunity
claims that his own Fundamental Right the writs which are mentioned in this to move the court for seeking remedy for
has been infringed upon (V D Mahajan, article". Thus, Article 32 has actually made the infringement of his rights, but the lack
The Constitution of India, p 97). The the Supreme Court the guarantor and of finance often acts as the stumbling
aggrieved person, may, however, seek a protector of the fundamental rights (Bblock. C Once a British judge said, "Justice
particular writ to be issued, but it is the Rout, Democratic Constitution of India, is open to all - like the Grill-Room of the
Supreme Court which will decide what p 99). Until and unless the provision Ritz of Hotel". The euphemism is, however,
writ will be appropriate in a particular Article 32 is deleted by an amendmentequally of applicable to the case of India.
case. In Charanjitlal's case, it held "Ar- the Constitution, it will help the aggrieved
Lack of means often implies the lack of
ticle 32 gives us very wide discretion in individual place before the apex court access
his to the court and, thus, what is legally
the matter of framing our writs to suit the allegations regarding the infringementgranted
of is financially denied to the vast
exigencies of particular cases, and the his rights. majority (Anup Chakraborty, 'The Judi-
application of the petitioner cannot be According to Ambedkar, out of 395 ciary and the Ordinary Citizens in India',
The Modern Review, August 1973).
thrown out simply on the ground that the articles of the Constitution, Article 32 was
proper writ has not been prayed for". In the most important, because it provided It is, of course, true that in order to
other words, it is the judges, and not the for a guaranteed remedy for the violationenlarge the scope of such constitutional
petitioner, who will actually determine the of any of the rights. As he claimed, remedy,
"If Article 226 is also engrafted in
the Constitution. So, in such case, an
nature of the writs to be issued in a par- I were asked to name the particular article
ticular case. affected person may also move to the high
in this Constitution as the most important
one, without which this Constitution would
court which is often residentially nearer
UNIQUE PROVISION
than the Supreme Court. Thus, so far as
be a nullity, I could not refer to any other
In this way, Article 32 has become aarticle except this one. It is the very soul the protection of Fundamental Right is
of the Constitution and the very heartconcerned,
novel provision in the Constitution of India of the Supreme Court and high
and, in reality, it has no parallel in the it..." (CAD, Vol VII, p 953). Thus, accord-
courts enjoy concurrent jurisdiction as the
Constitution of any other country (H H latter can, just like the Supreme Court,
ing to the chief architect of the Constitu-
Das, India: Democratic Government andtion, this single article surpasses, in value,issue the writs for the enforcement of
Politics, p 128). Our Constitution has, bythe totality of the constitutional provi-fundamental rights (G N Joshi, The Con-
inserting several provisions (coveringsions because it acts as the bulwark of stitution of India, p 214).
Articles 12 to 36) clearly guaranteeddemocracy and freedom. But it hardly benefits the ordinary man
various types of rights concerning equal- This statement is sufficient to prove thatbecause the system itself is dilatory,
ity, liberty, religion, education and prop-the makers placed a stupendous import- clumsy, tiresome and costly. Even if the
erty. But Article 32 does not give us anyance to this provision in order to make case
the is lodged before the high court, the
new thing, it actually makes room for thefundamental rights 'fundamental' in the aggrieved person has to spend much time
and pay a huge sum in order to get the
guaranteed remedy in case any other rightsociety. So, this provision is extraordinar-
is violated. In other words, it is a funda-ily important, because it gives meaning
remedy. This is why, instead of seeking
and fulfilment to the other fundamental
mental right which can be used to protect legal redress, most of the affected person
other fundamental rights. As Gajendra- rights guaranteed by the Constitution. choose to bear with the injustice meted out
gadkar points out, no other Constitution It has been pointed out that the concept to them.
of the world has made a remedial article of 'judicial review' has been introduced Though five decades have passed since
as a Fundamental Right. In this sense, in our Constitution by which the Supreme the making of the Constitution, we have
D D Basu very correctly observes, "Ar- Court can examine the constitutional failed to establish either social justice or
ticle 32, thus, provides a guaranteed rem-validity or otherwise of a legislative economic
act equality. So fundamental rights
may practically be regarded as some con-
edy for the enforcement of these rights and or an executive order (W H Morris Jones,

2380 Economic and Political Weekly August 21-28, 1999

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stitutional privileges only for a section of to take away much of the merits of the
the rights, but thejudiciary carefully keeps
the people, because despite the existence them fundamental.
original scheme. As a matter of fact, rights
of some remedial measures, ordinary of a man have no teeth unless they are Where right is, remedy there must be,
people cannot hope to restore them in case protected by the Constitution itself. because
It is a right without remedy is a rope
of their actual infringement. to be noted that the Soviet Constitution of sand (A G Agarwal, Comparative Study
Above all, the entire judicial process is also mentioned some rights, but they were of Modern Indian Constitution, p 428). In
artificial and alien to the ordinary people. not practically enforceable. The unwrittenthis sense, the provisions for the enforce-
Often the law does not seem to be Indian British Constitution has, however, no placement of fundamental rights is a most novel
in spirit, form, content and even in lan- of such express rights, though the peoplefeature of our Constitution. But the con-
guage. The slow-moving legal machinery enjoy them through the conventional force.stitutional mechanism is not enough,
becomes, in fact, a negation of justice to In America also, there is no specific pro- because, after all there remains a big gap
such people (Justice P B Mukherjee, vision for the issue of writs for protectingbetween the lip and the cup.
Inaugural Speech at the Annual Confer-
ence of the West Bengal Lawyers' Asso-
ciation, March 21, 1971). The Law Com-
mission has pointed out that nearly 36 per Call for Papers
cent of cases available for disposal during
a year remains unresolved and that the Second Annual Conference on Money and
slow movement of cases results in the
accumulation of arrears which causes Finance in the Indian Economy
further delay, producing a snow balling
effect. The Indira Gandhi Institute of Development Research (IGIDR) will be
Of course, a right without remedy is a hosting its second annual conference on Money and Finance in the
meaningless formality (A C Kapur, The Indian Economy during November 30 to December 2, 1999. The
Indian Political System, p 143). This is conference will consist of invited papers, which would be state of the
why, our Constitution has not only en- art surveys of various aspects of the broad Money and Finance area
listed them, but has also made them en- and contributed papers, for which submissions are invited. Although
forceable by some written provisions. Yet papers on all topics in the broad money and finance area are solicited,
they are limited by various ways. During we would particularly welcome papers on the following topics:
an emergency, they can be suspended by
presidential proclamation and, in normal 1. The design of Monetary Policy in a Liberalizing Economy: Targets
times, they may be curtailed by preventive and Instruments;
detention acts, amendments and other 2. The coordination of Monetary Policy with Fiscal and other Policy
restrictive measures. As such, often the Instruments;
judiciary, despite its eagerness, finds a 3. Financial Innovations and the Conduct of Monetary Policy;
little scope to step in. 4. Capital Account Convertibility, Currency Crisis and Global Financial
For all these reasons, it is alleged that Institutions.
the people of India practically enjoy fewer
rights than they are guaranteed. The chap- Complete papers should reach Raghbendra Jha at the address noted
ter on fundamental rights may, hence, be below by October 15, 1999. All papers will be refereed. Authors will be
called 'Limitations on Fundamental informed by end October. Authors of accepted papers may also be
requested to act as discussants for other papers. Some subsidy for travel
Rights' or 'Unfundamental Rights'. Some
to and
critics even point out that the benefits of from the conference for authors (within India) of accepted papers
may be available. Accommodation and local hospitality will be arranged
the remedial provisions have practically
been taken away by various factors byof
IGIDR. A proposal to publish revised versions of selected papers is
under
realistic life. These rights may well be consideration.
regarded as double-edged weapons, be-
cause what is given by one hand is taken Kirit Parikh (Director) and Raghbendra Jha (Professor
away by the other (K V Rao, Parliamen- Seminar Coordinators
tary Democracy in India, p 146).
Address for Correspondence:
Thus, it is a cardinal truth that funda-
mental rights India are hedged with many
limitations and also that the remedial Prof. Raghbendra Jha,
IGIDR, General Vaidya Marg
provisions (Articles 32 and 226) have little
practical use. However, the makers thoughtGoregaon (East)
that they had aptly created an effective-Mumbai 400 065
enforcement-machinery. Particularly, as Fax: +91-22-840-2752
D D Basu opines, the sole object of Arti-Phone: +91-22-8400919
cle 32 is the enforcement of the rights
Email: rjha@igidr.ac.in
guaranteed by the Constitution (Constitu-
tional Law, p 110). But procedural com-
plexities and financial incapacity are sure

Economic and Political Weekly August 21-28, 1999 2381

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