Comments on: Article 32 of the Constitution of India

It reads as follows:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.

(2) 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.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the power exercisable by the Supreme Court under clause (2).

previews.123rf.com

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by and Constitution.

The person who seeks a remedy under Art. 32 before the Supreme Court should normally be one whose fundamental rights are infringed except in case of habeas corpus petitions in which any other person related to or interested in such person may apply, nor it is neces­sary that he should ask for a particular writ, and the Supreme Court will grant a relief appropriate to the case of the applicant.

The remedy provided by Art. 32 cannot be invoked in case of violation of any of the fundamental rights as a result of private agreements unless such private agreements can be enforced without State aid say the aid of a court of law.

In a Supreme Court case, the petitioners were convicted by a Special Tribunal of Hyderabad, of murder and other offences and sentenced to death by hanging.

Their sentences and convictions were confirmed by the Hyderabad High Court before the 26th January, 1950 when the Constitution of India came into force. It was after the commencement of the Constitution the petitioner applied to the Supreme Court under Art. 32 praying for-

(1) A writ in the nature of certiorari calling upon the Govern­ment of Hyderabad and the Special Judge to produce the records of the case and to show cause why the convictions and sentences should not be quashed; and

(2) A writ of prohibition directing the Government and Special Judge not to execute the petitioners; and

(3) A writ of habeas corpus. This prayer was added with the leave of the Court.

As regards the complaint of illegality by reason of mis-joinder of charges and the infliction of the sentence of death by hanging and not decapitation, the Supreme Court held as follows:

“But it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial it does not follow that the trial court acted without jurisdiction.

There is a basic difference between want of jurisdiction, and an illegal or ir­regular exercise of jurisdiction, and no authority has been cited to show that mere non-compliance with the rules of procedure has been made a ground for granting one of the writs prayed for.

In either case, the defect, if any, can according to the procedure established by law, be corrected only by a court of appeal or revision.

Here are ap­pellate court which was competent to deal with the matter has pronounced its judgment against the petitioners, and the matter having been finally decided is not one to be reopened in a proceeding under Art, 32 of the Constitution.”

It was held by the Supreme Court in the case of People’s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473: 1982 Lab. I.C. 1946 that-

(a) The writ petition under Art. 32 of the Constitution cannot be maintained by the petitioner unless they can show some violation of a fundamental right for it is only for enforcement of a fundamental right that a writ petition can be maintained in the Supreme Court under Art. 32.

(b) The writ petition under Art. 32 in the present case do com­plain of breach of a fundamental right.