Protecting Article 32

The Indian Express 25th November 2020 Save

Context: An analysis of significance of Article 32 of the Indian Constitution in the light of recent stand taken by the Chief Justice of India, discouraging the recourse to the right to constitutional remedy.

Arguments in favour of discouraging Article 32:

To tackle the delays: Courts in various judgements have put a limit on the right to constitutional remedy due to delays or other principles of administration of justice.
- For E.g. CJI M Hidayatullah in Tilokchand (1970) said that although Article 32 open door of the court to people, Court should not trample all laws of the procedure.
Prominence of judicial power: Justice MP Thakkar in Kanubhai Brahmbhatt (1987) said that true faith must be inspired in the hierarchy of Courts and institution as a whole.
- Thus, remedies remain subjected to the discipline of judicial power and process.

Article 32 and its significance:

Not limited to the exercise of prerogative writs:
- In 1987 the Court ruled that 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;
Role of Supreme Court:
- Article 32 does not merely confer wide powers on the Court but also judicial duty to provide constitutional remedies
- While the High Courts are at a discretion to act or not to in case related to Article 226, the Supreme Court must. Article 32 makes the apex court into a “people’s court”.
Not Absolute: Article 33 restricts the application of Article 32 in order to maintain law and order and discipline among security forces.
- The Court has upheld 50^th Amendment Act to Article 33, which delegated rule making the power to the executives in order to ensure proper discharge of duty.
Challenges: Discriminatory bail system, judicial delays, decongestion and diversion and presence of “who watches the watchman” syndrome.

Conclusion: Article 32 has been described as the “soul” of the Indian Constitution by Babasaheb Ambedkar, and it should not be discouraged in light of their constitutional primacy.