Article 32 & Right to Constitutional Remedies

Article 32 provides the right to Constitutional remedies which means that a person has right to move to Supreme Court (and high courts also) for getting his fundamental rights protected. While Supreme Court has power to issue writs under article 32, High Courts have been given same powers under article 226. Further, the power to issue writs can also be extended to any other courts (including local courts) by Parliament via making a law for local limits of jurisdiction of such courts. Kindly note that Court Martial i.e. the tribunals established under the military law have been exempted from the writ jurisdiction of the Supreme Court and the high courts via article 33.

Importance of Article 32

• Article 32 was called the “soul of the constitution and very heart of it” by Dr. Ambedkar. Supreme Court has included it in basic structure doctrine. Further, it is made clear that right to move to Supreme Court cannot be suspended except otherwise provided by the Constitution. This implies that this right suspended during a national emergency under article 359.
• Article 32 makes the Supreme Court the defender and guarantor of the fundamental rights. Further, power to issue writs comes under original jurisdiction of the Supreme Court. This means that a person may approach SC directly for remedy rather than by way of appeal.
• Article 32 can be invoked only to get a remedy related to fundamental rights. It is not there for any other constitutional or legal right for which different laws are available.

Comparison of Supreme Court and High Court in Issuing writs

Similarities

• Power of issuing writs comes under original jurisdiction (to hear the matter at first instance) of both Supreme Court and High Courts. An aggrieved person has option to move any of them.

Differences

• While Supreme Court has power to issue writs via article 32, High Courts have this power via article 226.
• While Supreme Court has power to issue writs for enforcement of ONLY Fundamental rights, High Courts can issue writs for enforcement of fundamental rights as well as any other matter also. Thus, High Court has a wider jurisdiction from Supreme Court in matter of issuing writs.
• Supreme Court can issue a writ against any person or authority within the territory of India while high court can issue such writ under its own territorial jurisdiction. Thus, High court’s writ jurisdiction is narrower in terms of territorial extent.
• Supreme Court cannot refuse to exercise its writ jurisdiction mainly because article 32 itself is a fundamental right and supreme court is guarantor or defender of fundamental rights. However, for high courts, exercising the power to issue writs is discretionary.