DNA Explainer: Why is Article 32 called 'heart' and 'soul' of Constitution and its ever changing interpretation

Even as Kerala-based journalist Siddique Kappan languishes in jail, debate around the relevance of Article 32 continues inside and outside the Indian courts. 

The reason being that the Supreme Court may no longer entertain bail petitions under Article 32 of the Constitution. Not to forget Republic TV's Arnab Goswami was recently given bail under the aforesaid article.

On Monday, a Supreme Court Bench headed by Chief Justice of India S A Bobde observed that it is trying to discourage individuals from filing petitions under Article 32 of the Constitution. 

The observation came during the hearing of a petition seeking the release of journalist Siddique Kappan, who was arrested with three others while on their way to Hathras in Uttar Pradesh, to report on an alleged gangrape and murder of a 20-year old.

The journalist, arrested on October 5, was charged under the anti-terror law UAPA or the Unlawful Activities (Prevention) Act.

Even as we argue the relevance of Article 32 of the Indian Constitution, its important to understand why this Article has been called the 'heart' and 'soul' of the Constitution. 

'Heart' and 'soul' of the Constitution

Article 32 falls under Part III of the Constitution that includes the fundamental rights of individuals. It allows an individual to approach the Supreme Court if she or he believes that her or his fundamental rights have been violated or they need to be enforced.

Dr B.R. Ambedkar had once said, 'If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity, I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.'

The rights guaranteed under Article 32 cannot be suspended unless provided for by the Constitution.

What is Article 32?

It is one of the fundamental rights listed in the Indian Constitution that each citizen is entitled. Article 32 deals with the 'Right to Constitutional Remedies', or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.

It states that the Supreme Court 'shall have power 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 the rights conferred by this Part'. The right guaranteed by this Article 'shall not be suspended except as otherwise provided for by this Constitution'.

The Article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion. Only if any of these fundamental rights is violated can a person approach the Supreme Court directly under Article 32.

History

During the Constituent Assembly debates in December 1948, Dr B R Ambedkar had said that the rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended and hence it was 'one of the greatest safeguards that can be provided for the safety and security of the individual'.

Others in the drafting committee also said that since it gives a person the right to approach the Supreme Court as a remedy if fundamental rights are violated, 'it is a right fundamental to all the fundamental rights' guaranteed under the Constitution.

The Constituent Assembly debated whether fundamental rights including this one could be suspended or limited during an Emergency. The Article cannot be suspended except during the period of Emergency.

Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs.

How it works

In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court.

When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32. Article 226, however, is not a fundamental right like Article 32.

Supreme Court’s recent observations on Article 32

In journalist Siddique Kappan matter, the Supreme Court asked why the petitioners could not go to the High Court. It has sought responses from the Centre and the UP government, and will hear the case later this week.

In another case last week, invoking Article 32, filed by a Nagpur-based man arrested in three cases for alleged defamatory content against Maharashtra Chief Minister Uddhav Thackeray and others, the same Bench directed him to approach the High Court first.

Relief under Article 32 was also sought in a petition filed by Telugu poet Varavara Rao’s wife, P Hemalatha, against the conditions of his detention in jail since 2018.

The Supreme Court directed the Bombay High Court to expedite the hearing on a bail plea filed on medical grounds, pending since September. It observed that once a competent court had taken cognisance, it was under the authority of that court to decide on the matter.

In another matter, the Bench of CJI Bobde, Justice A S Bopanna and Justice V Ramasubramanian had issued a contempt notice to the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice.

The court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that 'there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country'.