RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

RIGHT TO CONSTITUTIONAL REMEDIES ( ARTICLE 32)

The declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of these rights. It is remedy which makes the right real. If there is no remedy there is no right at all. It was therefore, in the mind of the Constitution makers that there should be a effective remedy for the enforcement of these right under Article 32 of the Constitution. Article 32 is itself a fundamental right and Article 226 also empowers High Courts to issue writs for the enforcement of Fundamental Rights.

Article 32 confers one of the ‘highly cherished rights’. It is the right to move to Supreme Court for the enforcement of the Fundamental Rights. This right has been held to be an important and integral part of the basic structure of the Constitution.

The significance of incorporating Article 32 in the Constitution was explained by Dr. B.R. Ambedkar when he observed:

“If I was asked to name any particular Article in the Constitution as the most important Article without which this Constitution would be a nullity. I could nor refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it”.

Article 32 does not merely confer power on the Court to issue a direction, order or writ for the enforcement of Fundamental Rights but it also lays a constitutional obligation on this Court to protect the Fundamental Rights of the people and for that purpose this Court has all incidental and ancillary powers including to forge new remedies and fashion new strategies designed to enforce Fundamental Rights. It is in realisation of this constitutional obligation that this Court has innovated new methods and strategies particularly for enforcing the Fundamental Rights of the poor and disadvantaged who are denied their human rights and to whom freedom and liberty have no meaning.

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Article 32(1) declares that the right to move to the Supreme Court by appropriate proceedings for the enforcement of their rights included in Part III of the Constitution is guaranteed. Thus, the right to move to the Supreme Court for the enforcement of the Fundamental Rights is itself declared to be a Fundamental Right. The expression “appropriate proceedings” denotes that only those proceedings can be taken under Article 32 which are considered appropriate and not all sort of proceedings.

In Daryao Singh v. State of U.P, the Supreme Court observed that the expression appropriate proceedings has reference to proceedings which may be appropriate having regard to the nature of the order, direction or writ which the petitioner seeks to obtain from the court. The appropriateness of the proceedings would depend upon the particular writ or order which he claims and it is that the right has been conferred on the citizen to move to court by appropriate proceedings.

According to traditional rule of locus standi i.e., who can apply, the right to move the court for judicial redressal, is available only to those whose legal right has been infringed. This rule result in denial of equal access to justice to those who, because of their socially or economically disadvantageous position, are unable to approach the court for relief.

In Fertilizer Corporation Kamgar Union v. Union of India, the court said that the question whether a person has the locus to file a proceeding depends mostly and often whether he possesses a legal right and that right and that legal right is violated. But in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or Article 32 of the constitution.

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ARTCLE 32 AND RES JUDICATA

Res-judicata means, a thing which has been decided. The doctrine operates as a bar to trial of a subsequent suit on the same cause of action between the same parties. Things once decided by the courts should be taken as conclusive truths, until they are reversed by the higher court. It has been held that the general principle of res judicata applies writ petitions filed under Article 32.

If a question has been decided by the Supreme Court under Article 32 the same question cannot be re-opened, again under Article 226. In Daryao v. State of U.P., it was held that where the matter has been heard and decided by the High Court under Article 226 the writ under Article 32 is barred by the rule of res judicata and could not be entertained.

ARTICLE 32 AND LACHES OR DELAY

It is the fundamental principle of administration of justice that the courts will help those who are vigilant about their rights and who do not sleep on their rights. The courts will refuse to exercise their jurisdiction in favour of a party who comes to the court after considerable delay and is otherwise guilty of laches. Thus the remedy of Article 32 must usually be sought within a reasonable time. There is no prescribed time period of 90 days for filing petition under Article 32.

EXISTENCE OF ALTERNATIVE REMEDY

In K.K. Kochuni v. State of Madras, the Supreme Court held that though the existence of an adequate legal remedy was a thing to be taken into consideration in the matter of granting prerogative writs, this was not an absolute ground for refusing a writ under Article 32, because the powers given to Supreme Court under Article 32, were much wider not confined to the issue of prerogative writs.

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In S.A. Khan v. State of Haryana, it was held that when a statutory alternative remedy was available to the petitioner against the order of suspension, the writ petition under Article 32, was not maintainable.

Author: sushma,
Ideal Institute of Management and Technology, 2nd year (BALLB)

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