Article 32 (Right to Constitutional Remedies): Meaning, Writs, Article 32 vs 226, Suspension and PIL (UPSC Notes + PYQs)

Background

A right is only as good as the remedy behind it. The framers knew from colonial experience that rights written on paper could be ignored by officials. So they did not leave enforcement to ordinary laws: they made the right to approach the Supreme Court itself a Fundamental Right. On 9 December 1948, defending draft Article 25 (now Article 32), B.R. Ambedkar told the Assembly that it was “the very soul of the Constitution and the very heart of it”. The writs borrowed from English law (prerogative writs) were given to the Supreme Court and, through Article 226, to the High Courts.

The four clauses

• 32(1): the right to move the Supreme Court by appropriate proceedings for enforcing Part III rights.
• 32(2): power to issue directions, orders or writs.
• 32(3): Parliament may give other courts these powers within their local limits (not yet done).
• 32(4): the right cannot be suspended except as the Constitution provides, that is, under Article 359 during a national emergency.

Article 32 vs Article 226

Key cases

In Romesh Thappar (1950) the Court called itself the protector of Fundamental Rights. During the 1975 Emergency, ADM Jabalpur (1976) held that habeas corpus could be suspended; the 44th Amendment (1978) then barred suspension of Articles 20 and 21 even in an emergency, and Puttaswamy (2017) expressly overruled ADM Jabalpur. L. Chandra Kumar (1997) held judicial review under Articles 32 and 226 to be basic structure. In practice the Court has also asked petitioners to go first to the High Court where that is more efficient.

The five writs at a glance

Habeas corpus is the only writ any person, not just the detainee, can seek on another’s behalf, and quo warranto can likewise be sought by any interested person, which is why both are often asked in Prelims.

Why the Court sends petitioners to the High Court

Article 32 is itself a fundamental right, so in theory the Supreme Court cannot refuse a petition. In practice, with a backlog of over 80,000 cases, it often asks petitioners to approach the High Court under Article 226 first, since High Courts are closer to the facts and can hear a wider range of cases. Critics say this dilutes Dr Ambedkar’s “heart and soul” of the Constitution; supporters reply that a remedy that takes years to be heard is no remedy at all, and that Article 226 is broader in any case. The Court has also discouraged petitions filed for publicity and imposed costs for frivolous PILs.

Public interest litigation

From the late 1970s the Court relaxed locus standi so that anyone acting in good faith could approach it for those unable to do so, even by letter (epistolary jurisdiction). Bonded labour, undertrial prisoners and pollution cases came this way. Concerns now include frivolous and publicity PILs, which the Court sometimes dismisses with costs.

Article 32 during emergencies

During a national emergency the President may, under Article 359, suspend the right to move any court for enforcement of specified Fundamental Rights. This was done in 1962, 1971 and 1975. The 1975 order led to ADM Jabalpur (1976), where four of five judges held that no detenu could seek habeas corpus. Justice H.R. Khanna’s lone dissent cost him the chief justiceship. The 44th Amendment (1978) now protects Articles 20 and 21 from suspension, and Article 19 is suspended automatically only for an emergency declared on the ground of war or external aggression, not armed rebellion.

Limits the Court has drawn

• Res judicata applies: a petition dismissed on merits cannot be refiled (Daryao, 1961).
• Article 32 is for Fundamental Rights only; contractual or statutory disputes go elsewhere.
• Writs normally lie against the “State” under Article 12; private bodies performing public functions can be covered under Article 226.
• The Court may refuse when there is gross delay or suppression of facts.
• Compensation can be awarded for violation of Article 21 (Rudul Sah, 1983; Nilabati Behera, 1993).

Way forward

Keep PIL focused on those who cannot reach courts: prisoners, bonded labourers, the very poor. Screen PILs early, impose costs on frivolous ones, and encourage High Courts to take more Article 226 work so the Supreme Court can concentrate on constitutional questions.

PYQ trend

Prelims asks the five writs and the 32-vs-226 difference (2024 on prohibition). Mains linked PIL with judicial power in 2024. Practise one answer on “Article 32 as the heart and soul” with ADM Jabalpur and the 44th Amendment.

Article 32: UPSC angle

Article 32 UPSC PYQs (Prelims)

Questions UPSC has actually asked, from the official papers. Pick an option to check yourself.

Mains PYQs on this topic

Questions from the official UPSC Mains papers (2023-2026 in the Battle IAS Mains bank), newest first. Each links to a model answer.

1. UPSC Mains 2024 · GS Paper II · Q14 · 15 marks

   Explain the reasons for the growth of public interest litigation in India. As a result of it, has the Indian Supreme Court emerged as the world’s most powerful judiciary?

   Model answer and approach

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Image: Subhashish Panigrahi, Wikimedia Commons, CC BY-SA 4.0