The Heart and Soul of the Constitution: Practicing Under Article 32

Article 32 guarantees the right to move the Supreme Court, by appropriate proceedings, for the enforcement of the rights conferred by Part III of the Constitution. Because the remedy is itself a fundamental right, the Court described itself in Romesh Thappar v. State of Madras, decided within months of the Constitution coming into force, as the protector and guarantor of fundamental rights, and held that it could not refuse to entertain a petition merely because the petitioner might have gone to a High Court first.

In K.K. Kochunni v. State of Madras, the Court held that a petition under Article 32 does not fail merely because it raises disputed questions of fact; the Court may decide such questions, if necessary on affidavits or by other evidence. These decisions remain good law on the existence of the remedy.

In practice, however, the Court frequently asks petitioners to approach the High Court under Article 226, particularly where the grievance is local, depends on facts that are better examined closer to the source, or concerns a State law or a State authority. Petitions under Article 32 are most readily entertained where a central law or a nationwide policy is challenged, where several States are involved, where the issue is of national importance, or where personal liberty is at stake and the matter is urgent.

Article 32 enforces only rights in Part III. A purely contractual or statutory grievance, however serious, belongs before the High Court or the ordinary courts, unless it also discloses a violation of a fundamental right such as equality under Article 14 or life and personal liberty under Article 21.

Most fundamental rights operate against 'the State' as defined in Article 12, which includes Parliament and the Government of India, State legislatures and governments, and local or other authorities. In Ajay Hasia v. Khalid Mujib Sehravardi, a Constitution Bench set out the tests for deciding whether a corporation or society is an instrumentality or agency of the State, looking at matters such as government ownership of share capital, financial assistance, deep and pervasive State control, and whether the body performs public functions closely related to governmental functions. A few rights, such as those against untouchability and forced labour, operate against private persons as well.

Article 32(2) empowers the Court to issue directions, orders or writs, including writs in the nature of habeas corpus (to secure release from unlawful detention), mandamus (to compel the performance of a public duty), prohibition (to stop a court or tribunal from exceeding its jurisdiction), quo warranto (to question a person's authority to hold a public office) and certiorari (to quash a decision made without jurisdiction or in breach of natural justice).

The words 'directions or orders' allow the Court to fashion remedies the classic writs do not cover. It has awarded compensation as a public law remedy for violations of the right to life: in Rudul Sah v. State of Bihar, for prolonged illegal detention, and in Nilabati Behera v. State of Orissa, where it explained that the State's liability for a custodial death under Article 32 is strict and is distinct from a claim in tort. Where there was no law on a subject that touched fundamental rights, it issued guidelines to fill the gap, as in Vishaka v. State of Rajasthan on sexual harassment at the workplace. In Vineet Narain v. Union of India, it used a 'continuing mandamus', keeping the matter pending and issuing directions over time to secure an independent investigation.

Much of the Court's constitutional law has been made on petitions under Article 32. In Maneka Gandhi v. Union of India, a seven-judge Bench held that the procedure by which a person is deprived of life or personal liberty must be fair, just and reasonable, and read Articles 14, 19 and 21 together. In Justice K.S. Puttaswamy (Retd.) v. Union of India, a nine-judge Bench recognised privacy as a fundamental right, overruling earlier decisions to the contrary.

More recent cases show the same pattern. Anuradha Bhasin v. Union of India required orders suspending internet services to be published, to satisfy the test of proportionality and to be reviewed periodically. In Association for Democratic Reforms v. Union of India, a Constitution Bench struck down the electoral bond scheme on petitions filed under Article 32, holding that it violated voters' right to information.

Habeas corpus petitions against orders of preventive detention, made under laws such as the National Security Act, 1980 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, form a distinct body of practice. Article 22 supplies the constitutional safeguards. Under Article 22(5), the grounds of detention must be communicated to the detenu as soon as may be, and the detenu must be given the earliest opportunity of making a representation against the order. Under Article 22(4), detention for longer than three months requires the opinion of an Advisory Board that there is sufficient cause for it.

Because preventive detention is imposed without a trial, the courts examine strictly whether these safeguards were observed: whether the grounds and the documents relied on were supplied in a language the detenu understands, whether the detenu's representation was considered without unexplained delay, whether the detaining authority applied its mind to relevant and current material, and, in a number of decisions, whether the ordinary criminal law was adequate to deal with the conduct alleged. A lapse in any of these respects can lead to the order being set aside, whatever the strength of the underlying allegations.

Habeas corpus is also used where a person is held in private custody, for example in disputes over the custody of a child or the confinement of an adult against his or her will. In such cases the Court's concern is the liberty and welfare of the person concerned rather than the competing claims of the parties.

A petitioner who has lost before a High Court cannot ordinarily start afresh under Article 32. In Daryao v. State of U.P., the Court held that where a High Court has dismissed a petition under Article 226 on the merits after contest, the decision operates as res judicata and bars a petition under Article 32 on the same facts; the proper remedy is an appeal or special leave petition against the High Court's judgment. The bar does not apply where the High Court's petition was dismissed without a decision on the merits, for instance in limine without a speaking order, or on the ground of laches or of an alternative remedy.

For the same reason, a writ petition must state whether the petitioner has approached any High Court for the same relief, and with what result.

Public interest litigation (PIL) developed when the Court relaxed the traditional rule that only a person whose own rights are affected may approach it. In S.P. Gupta v. Union of India, it held that a member of the public acting bona fide may seek relief on behalf of persons who, because of poverty or disability, cannot approach the Court themselves. In Bandhua Mukti Morcha v. Union of India, a letter about bonded labourers in stone quarries was treated as a writ petition, and the Court appointed commissioners to investigate conditions on the ground.

The Court has also guarded against misuse. Janata Dal v. H.S. Chowdhary warned against petitions by busybodies and those pursuing private or political ends in the name of public interest, and State of Uttaranchal v. Balwant Singh Chaufal issued directions requiring courts to verify the credentials of PIL petitioners and the correctness of their material, and to impose costs in frivolous cases. Order XXXVIII Rule 12 of the Supreme Court Rules requires a PIL petitioner to disclose, among other things, his or her identity, occupation and income, any personal interest in the matter, any related litigation, and whether the authorities were approached first. The procedure is explained in the guide to filing a PIL in the Supreme Court.

A petition under Article 32 is filed in writing, supported by the petitioner's affidavit, and sets out the fundamental right infringed, the facts, the relief sought and the grounds. Order XXXVIII contains special provisions for habeas corpus: the petition is supported by an affidavit of the person detained or, if that person cannot make one, of someone with knowledge of the facts, and if a prima facie case is made out the Court issues a rule nisi requiring the detaining authority to justify the detention. No court fee is payable on habeas corpus petitions or other Article 32 petitions arising out of criminal proceedings.

There is no fixed period of limitation for a writ petition, but unexplained delay and laches can lead the Court to refuse relief, especially where third-party rights have arisen in the meantime. The step-by-step writ petition guide covers drafting, filing and listing.

Interim relief may be sought with the petition: for instance, a stay of a demolition or an eviction, a direction for medical treatment of a person in custody, or protection from coercive action pending the hearing. The Court is cautious about granting at the interim stage what would amount to the final relief, and in most cases it first issues notice so that the State can respond. Matters involving liberty or imminent irreversible harm can be mentioned for early listing through the Registry's mentioning procedure.

The High Court's power under Article 226 is wider than Article 32: it extends to the enforcement of legal rights generally, not only fundamental rights, and High Courts are often better placed to deal with local facts. A petition under Article 32 is most likely to be entertained where the Supreme Court's decision will settle a question affecting many people or many States, where a central statute or policy is under challenge, or where the urgency of a liberty claim makes immediate access necessary.

Where these features are absent, the realistic outcome may be an order permitting the petitioner to withdraw the petition with liberty to approach the High Court. Considering this at the outset saves time for the client and avoids the risk that a dismissal on the merits will bar the claim elsewhere.