CONSTITUTION

Article 32
A Project report from Secondary Data

Submitted to Professor Nageshwar Rao,

Faculty of Constitution; TNNLS

Submitted by- Kiran Santhosh

Roll No. 2014-BA0130032
Class 2nd Year
Semester-3

Table of Contents

DECLARATION............................................................................3

2 ACKNOWLEDGEMENT..5
3 PREFACE6
4 RESEARCH METHODOLOGY..........7
5 SOURCES OF DATA.7
6 METHOD OF WRITTING8
7 RIGHT TO CONSTITUTIONAL
REMEDIES......................................................................................9
8 LOCUS STANDI.. ..13
9 PUBLIC INTEREST LITIGATION.............................................14
10 HABEAS CORPUS.........................................................................18
11 MANDAMUS...................................................................................20
12 PROHIBITION................................................................................22
13 CERTIORARI..................................................................................24
14 QUO WARRANTO.........................................................................26
15 JUDICIAL REVIEW.......................................................................27
16 JUDICIAL ACTIVISM...................................................................32
17 JUDICIAL RESTRAINT................................................................35
18 CASES...............................................................................................39
19 CONCLUSION.................................................................................41
20 BIBLIOGRAPHY............................................................................42

Declaration
I do hereby declare that the project research entitled Article 32 of Indian
Constitution submitted to the Tamil Nadu National Law School in fulfilment of
the requirement of the internal component is a record of the original work done
by me under the supervision and guidance of Mr.Nageshwar Rao and that the
project submitted has not been formed on the basis of any other project
submitted by any other university or college.

Kiran Santhosh
BA.LLB (HONS)
Roll No: BA0130032

CERTIFICATE
This is to certify that the project entitled Article 32 of Indian Constitution
submitted to the Tamil Nadu National Law School in fulfilment of the internal
component done by Kiran Santhosh under the supervision of Mr.Nageshwar
Rao.

Place: Tiruchirappalli
Date:

ACKNOWLEDGEMENT
Thanks to the Almighty who gave me the strength to accomplish the project
with sheer hard work and honesty. This research venture has been made possible
due to the generous co-operation of various persons. To list them all is not
practicable, even to repay them in words is beyond the domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Facultyin-charge Prof. Nageshwar Rao, for his kind gesture in allotting me such a
wonderful and elucidating research topic. Apart from that I would like to thank
my friends for their support and suggestions during the process of making this
project.

Preface

The main object of this project work is to get knowledge about the Article 32 of
the Indian Constitution, this project also discusses about all the important
clauses given under Article 32 of Indian Constitution as well as the other three
main content inside this Article are Judicial Review, Judicial Activism and
Judicial Restraint.
Article 32 of Indian Constitution itself speaks about the Constitutional
Remedies given to Indian citizens and various other important aspects which
would be mentioned in detail inside the project. Also the five writs are
mentioned inside the project along with important and main case laws given
under Article 32 of Indian Constitution.

Research Methodology
The research methodology used in this project is analytical and descriptive.
Data has been collected from various books, articles, papers and web sources.
This project is based upon non-doctrinal method of research. This project has
been done after a after a thorough research based upon intrinsic and extrinsic
aspects of the project.

Sources of Data
The following secondary sources of data have been used in the project1. Articles.
2. Books
3. Journals
4. Websites

Method of Writing:

The method of writing followed in the course of this research project is

primarily analytical and based on secondary source of data.

Right To Constitutional Remedies

Art 32. (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 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 powers exercisable by
the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for this Constitution.

Enforcement of Fundamental Rights by Supreme Court

10

1. The sole purpose and object of Art. 32 is the enforcement of the

fundamental rights guaranteed by the Constitution. A person has no right to
complain under Art. 32 where no fundamental rights has been infringed 1
and infringement of fundamental rights cannot be founded on remote or
speculative ground2. It follows that no question other than relating to a
fundamental right will be determined in a proceeding under Art. 32, 3
including interlocutory relief. Judiciary is the protector of the fundamental
rights. A writ under Art. 32 would not lie for enforcement of government
policy4 or a Directive Principle.5
2. The Supreme Court has jurisdiction to enforce the fundamental rights
against private bodies and individuals and can award compensation for
violation of the fundamental rights. It can exercise its jurisdiction suo motu
or on the basis of PIL.6
3. Art. 32 doesnt lie under the following cases:
i. A person, who has entered into a voluntary settlement under the
provision of a statute, cannot challenge the constitutionality of the
1 Gopal Das Mohta v. Union of India, AIR 1955 SC 1: 1955 (1) SCR 773.
2 Baldev Singh Gandhi v. State of Punjab,(2002) 3 SCC 667, 674(para 15) : AIR 2002 SC 1124.
3 Coffee Bd. V. Jt. C.T.O., AIR 1971 SC 870 (877): (1969) 3 SCC 349; Star Sugar Mills v. State of
U.P., AIR 1984 SC 37: (1983) 4 SCC 299; Express Newspaper v. Union of India, (1986) 1 SCC 133
(paras 206-07): AIR 1986 SC 872.
4 Hindi Hitarakshak Samiti v. Union of India, AIR 1990 SC 851: (1990) 2 SCC 352.
5 B. Krishna Bhat v. Union of India, (1990) 3 SCC 65: 1990 (2) SCR 1.
6 Bodhisattawa Gautam v. Subhra Chankraborty, (1996) 1 SCC 490 (paras 6 and 7): AIR 1996 SC
922.

11

statute under Art. 32 until the settlement is cancelled in appropriate

ii.

proceedings.7
The Court will not, under Art. 32 interfere with an administrative
order, however erroneous, where the constitutionality of the statute or
the order made there under is not challenged on the ground of
contravention of a fundamental right.8 Hence, the Supreme Court

iii.

strikes at the arbitrary action of the state.

As there is no fundamental right to enter into a business with the
government, or to obtain recognition from the government, 9 an
application under Art. 32 would not lie for an alleged violation of such

iv.

rights, under Art. 19(1)(g).

Where a persons licence to ply buses has been extinguished under a
valid law, he cannot, in a petition under Art. 32, question the right of

v.

the State Transport Undertaking to ply buses without permits.10

In an application for habeas corpus, the petitioner cannot succeed
unless he can show an infringement of either Art. 21 or 22. Thus, if he
has been arrested under the Criminal Procedure Code on criminal

7 Coffee Bd. V. Jt. C.T.O., AIR 1971 SC 870 (877): (1969) 3 SCC 349; Star Sugar Mills v. State of U.P., AIR
1984 SC 37: (1983) 4 SCC 299; Express Newspaper v. Union of India, (1986) 1 SCC 133 (paras 206-07): AIR
1986 SC 872.

8 Sadhu Singh v. Delhi Administration, AIR 1966 SC 91 (95): 1966 (1) SCR 243.
9 Achuthan C.K. v. State of Kerala, AIR 1959 SC 490 (492): 1959 Supp. (1) SCR 787.
10 Kalyan Singh v. State of U.P., AIR 1962 SC 1183: 1962 Supp. (2) SCR 76.

12

charges or is an under-trial prisoner,11 his remedies in matters relating

to bail delay in investigation or the like are to be had under that Code,
vi.

and not under Art. 32.12

Since Art. 21 itself is confined to deprivation of liberty by the State, no
petition under Art. 32 lies where a person has been detained by a
private individual,13 or where the petitioner has been affected by his

vii.

voluntary action without any compulsion by the State.

The question of the content and effect of the terms of his/her surrender
could not be raised on the basis of an omnibus statement in a writ
petition under this Article.14

Locus Standi

11 Dev Narayan v. Union Territory, (1968) SC, dt. 18-12-1968.

12 Bhabadev Mondal v. State of W.B., (1972) UJSC 25 (para 4): AIR 1972 SC 1852: (1972) 3 SCC
319.
13 Vidya Verma v. Shiv Narain Verma, Dr., AIR 1956 SC 108: 1955 (2) SCR 983.
14Phoolan Devi v. State of M.P., (1996) 11 SCC 19 (para 5).

13

Locus standi is the term for the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to
support that party's participation in the case.
There are three standing requirements:
1. Injury-in-fact: The plaintiff must have suffered or imminently will suffer
injuryan invasion of a legally protected interest that is (a) concrete and
particularized, and (b) actual or imminent (that is, neither conjectural nor
hypothetical; not abstract). The injury can be either economic, noneconomic, or both.
2. Causation: There must be a causal connection between the injury and the
conduct complained of, so that the injury is fairly traceable to the
challenged action of the defendant and not the result of the independent
action of some third party who is not before the court.
3. Redressability: It must be likely, as opposed to merely speculative, that a
favourable court decision will redress the injury.

Public Interest Litigation

14

Public-Interest Litigation is litigation for the protection of the public interest. In

Indian law, Article 32 of the Indian constitution contains a tool which directly
joins the public with judiciary. A PIL may be introduced in a court of law by the
court itself (suo motu), rather than the aggrieved party or another third party. For
the exercise of the court's jurisdiction, it is not necessary for the victim of the
violation of his or her rights to personally approach the court. 15 In a PIL, the
right to file suit is given to a member of the public by the courts through judicial
activism.16 The member of the public may be a non-governmental organization
(NGO), an institution or an individual. The Supreme Court of India, rejecting
the criticism of judicial activism, has stated that the judiciary has stepped in to
give direction because due to executive inaction, the laws enacted by Parliament
and the state legislatures for the poor since independence have not been
properly implemented.
The concept of Public Interest Litigation (PIL)1718 is in consonance with the
principles enshrined in Article 39A of the Constitution of India to protect and
deliver prompt social justice with the help of law. Before the 1980s, only the
aggrieved party could approach the courts for justice. After the emergency era
15 Miss Veena Sethi v. State of Bihar, 1982 (2) SCC 583: 1982 SCC (Cri) 511: AIR 1983 SC 339.
16 Citizens for Democracy through its President v. State of Assam and Others, 1995 KHC 486 :
1995 (2) KLT SN 74 : 1995 (3) SCC 743 : 1995 SCC (Cri) 600 : AIR 1996 SC 2193.
17 M.C.Mehta v. Union of India, (2004) 12 SCC 188.
18 M.C.Mehta v. Union of India,(1997) 11 SCC 227.

15

the high court reached out to the people, devising a means for any person of the
public (or an NGO) to approach the court seeking legal remedy in cases where
the public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna
Iyer were among the first judges to admit PILs in court. Filing a PIL is not as
cumbersome as a usual legal case; there have been instances when letters and
telegrams addressed to the court have been taken up as PILs and heard.19
The Court entertained a letter from two professors at the University of Delhi
seeking enforcement of the constitutional right of inmates at a protective home
in Agra who were living in inhuman and degrading conditions. In Miss Veena
Sethi v. State of Bihar, 1982 (2) SCC 583 : 1982 SCC (Cri) 511 : AIR 1983 SC
339, the court treated a letter addressed to a judge of the court by the Free Legal
Aid Committee in Hazaribagh, Bihar as a writ petition. In Citizens for
Democracy through its President v. State of Assam and Others, 1995 KHC 486
: 1995 (2) KLT SN 74 : 1995 (3) SCC 743 : 1995 SCC (Cri) 600 : AIR 1996
SC 2193, the court entertained a letter from Shri Kuldip Nayar (a journalist, in
his capacity as President of Citizens for Democracy) to a judge of the court
alleging human-rights violations of Terrorist and Disruptive Activities
(Prevention) Act (TADA) detainees; it was treated as a petition under Article 32
of the Constitution of India.20
19 Mohd Islam v. Union of India, (2003) 4 SCC 1, 8 (para 9 and 10).
20 Sunil Batra v. Delhi Admn. AIR 1980 SC 1579: (1980) 3 SCC 488.

16

Peoples Union for Democratic Rights v. Union of India2 - The court now
permits Public Interest Litigation or Social Interest Litigation at the
instance of Public spirited citizens" for the enforcement of constitutional
& legal rights of any person or group of persons who because of their
socially or economically disadvantaged position are unable to approach
court for relief. Public interest litigation is a part of the process of
participate justice and standing in civil litigation of that pattern must have
liberal reception at the judicial door steps.
In the Judges Transfer Case3 - Court held Public Interest Litigation can
be filed by any member of public having sufficient interest for public
injury arising from violation of legal rights so as to get judicial redress.
This is absolutely necessary for maintaining Rule of law and accelerating
the balance between law and justice. It is a settled law that when a person
approaches the court of equity in exercise of extraordinary jurisdiction, he
should approach the court not only with clean hands but with clean mind,
heart and with clean objectives.
Shiram Food & Fertilizer case4 through Public Interest Litigation
directed the Co. Manufacturing hazardous & lethal chemical and gases
posing danger to life and health of workmen & to take all necessary
safety measures before re-opening the plant.

17

M.C Mehta V. Union of India5 - In a Public Interest Litigation brought

against Ganga water pollution so as to prevent any further pollution of
Ganga water. Supreme Court held that petitioner although not a riparian
owner is entitled to move the court for the enforcement of statutory
provisions, as he is the person interested in protecting the lives of the
people who make use of Ganga water.
Parmanand Katara V. Union of India6 - Supreme Court held in the Public
Interest Litigation filed by a human right activist fighting for general
public interest that it is a paramount obligation of every member of
medical profession to give medical aid to every injured citizen as soon as
possible without waiting for any procedural formalities.

Habeas Corpus

18

A writ of habeas corpus, also known as the great writ, is a summons with the
force of a court order; it is addressed to the custodian (a prison official for
example) and demands that a prisoner be taken before the court, and that the
custodian present proof of authority, allowing the court to determine whether
the custodian has lawful authority to detain the prisoner. If the custodian is
acting beyond his or her authority, then the prisoner must be released. Any
prisoner, or another person acting on his or her behalf, may petition the court, or
a judge, for a writ of habeas corpus. One reason for the writ to be sought by a
person other than the prisoner is that the detainee might be held
incommunicado.21
The Indian judiciary, in a catena of cases, has effectively resorted to the writ of
habeas corpus to secure release of a person from illegal detention.22 For
example, the Karnataka High Court heard in October 2009 a habeas corpus
petition filed by the parents of a girl who married a Muslim boy from Kannur
district and was allegedly confined in a madrasa in Malapuram town. Usually, in
most other jurisdictions the writ is directed at police authorities. The extension
to non-state authorities has its grounds in two cases: the 1898 Queen's Bench
case of Ex Parte Daisy Hopkins, wherein the Proctor of Cambridge University
did detain and arrest Hopkins without his jurisdiction, and Hopkins was released
21 Greene v. Secy. Of State for Home Affairs, 1942 AC 284: (1941) 3 AII ER 388 (HL).
22 Sapmawia v. Dy. Commr. (1970) 2 SCC 399: (1971) 1 SCR 690.

19

and that of Somerset v Stewart, in which an African slave whose master had
moved to London was freed by action of the writ.
The Indian judiciary has dispensed with the traditional doctrine of locus standi,
so that if a detained person is not in a position to file a petition, it can be moved
on his behalf by any other person. The scope of habeas relief has expanded in
recent times by actions of the Indian judiciary.23
The habeas writ was used in the Rajan case, a student victim of torture in local
police custody during the nationwide Emergency in India in 1976.On 12 March
2014; Subrata Roy's counsel approached the Chief Justice moving a habeas
corpus petition. It was also filed by Panthers Party to protest the imprisonment
of Anna Hazare, a social activist.

23 Harbans Kaur v. Union of India, (1995) 1 SCC 623 (para 16).

20

Mandamus
Mandamus is a judicial remedy in the form of an order from a superior court, to
any government subordinate court, corporation, or public authorityto do (or
forbear from doing) some specific act which that body is obliged under law to
do (or refrain from doing)and which is in the nature of public duty, and in
certain cases one of a statutory duty. It cannot be issued to compel an authority
to do something against statutory provision. For example, it cannot be used to
force a lower court to reject or authorize applications that have been made, but
if the court refuses to rule one way or the other then a mandamus can be used to
order the court to rule on the applications.24
In India, the sine qua non for mandamus is the existence of a statutory public
duty incumbent upon the person or body against whom the mandamus is
sought.25 There must equally co-exist a corresponding right in the petitioner
entitling him to claim the enforcement of such public duty. These two
preconditions form the foundation for the issue of mandamus. The primary
scope and function of mandamus is to "command" and "execute" rather than to
"enquire" and "adjudicate". It cannot be issued to change the decision of a body
so as to suit the petitioner. Obligations which are not of statutory nature cannot
be enforced by mandamus. The writ petition is not maintainable when a remedy
24 Union of India v. Ramkumar, AIR 1962 SC 247.
25 State of Rajasthan v. Nathmal and Mithamal, (1954) SCR 982: AIR 1954 SC 307.

21

provided for under the Code of Civil Procedure is available. For example, the
High Court cannot entertain writ petitions for mandamus to the Government
who fails to deposit and pay in the requisite time an enhanced compensation
account as ordered by a lower Court. The petitioners in this case would be
directed to approach the executing Court for appropriate relief.26
Only the Supreme Court and High Courts are empowered to exercise Writ
Jurisdiction, under Art. 32 and 226 of Constitution. No other courts are
empowered to issue writ.

26 Harbhajan Singh Dhalla v. Union of India, AIR 1987 SC 9: (1986) 4 SCC 678.

22

Prohibition
A writ of prohibition is a writ directing a subordinate to stop doing something
the law prohibits.27 Also issued primarily to prevent an inferior court or tribunal
from exceeding its jurisdiction in cases pending before it or acting contrary to
the rules of natural justice. It is issued by a superior court to inferior courts from
usurping a jurisdiction with which it was not legally vested, or in other words to
compel inferior courts to keep within the limits of their jurisdiction. Thus the
writ is issued in both cases where there is excess of jurisdiction and where there
is absence of jurisdiction (S. Govind Menon vs. union of India, AIR 1967 SC
1274). Prohibition is not a continuation of the proceedings to be prohibited. Its
object is on the contrary to arrest the inferior tribunal's proceedings. It is a
collateral matter progress essentially between the two tribunals, an inferior one
and other superior one by which the latter, by virtue its power of
superintendence over the former, restrains it within its rightful competence. Its
nature is held to depend upon the nature of proceeding to be prohibited. The
writ can be issued only when the proceedings are pending in a court if the
proceeding has matured into decision, writ will not lie. When the court, before
whom the matter is pending, has ceased to exist, in that condition too, the writ
of prohibition will not lie because there can be no proceedings upon which it
can operate but on the other hand, if the court is functioning, the writ can be
27 Thirumala Tirupati Devasthanams v. Thallappaka Ananthacharyulu, (2003) 8 SCC 134, 148-49
(para 14): AIR 2003 SC 3290.

23

issued at any stage of the proceeding before the inferior court or tribunal. It can
be issued only against a judicial and quasi-judicial body and not against a
legislative or administrative body.

24

Certiorari
Certiorari is most often seen as the writ that the Supreme Court issues to a lower
court to review the lower court's judgment for legal error (reversible error) and
review where no appeal is available as a matter of right. Before the Evarts Act,
the cases that could reach the Supreme Court were heard as a matter of right,
meaning that the Court was required to issue a decision in each of those cases.
That is, the Court had to review all properly presented appeals on the merits,
hear oral argument, and issue decisions.28 The Act solved these problems by
transferring most of the court's direct appeals to the newly created Circuit
Courts of Appeals, whose decisions in those cases would normally be final. The
Supreme Court did not completely give up its judiciary authority, however,
because it gained the ability to review the decisions of the courts of appeals at
its discretion through writ of certiorari.29
But this writ operates after the order has been passed in a case without
jurisdiction. Its a curative remedy after an illegal orders has been passed. The
diff. between Prohibition & Certiorari lies in the fact that former is filed before
the passing of order by the court and the later can be filed after the passing of
order/judgment. The legal system is constructed in layers to protect the rights of

28 V.K.Jain v. Union of India, (2000) 1 SCC 709 (para 7).

29 Babu Singh Bains v. Union of India, (1996) 6 SCC 565.

25

citizens and the integrity of the legal system itself. 30 The higher in the legal
system a case progresses, the more authority a court has. This allows people to
step through multiple layers of authority as they prosecute or appeal a case, with
scrutiny from different angles at every layer to confirm that the case is handled
appropriately. Higher courts can issue other orders to lower courts compelling
them to take different actions if the judge of a higher court has reason to believe
that a lower court is not acting appropriately.31

30 Krishna Swami v. Union of India, (1992) 4 SCC 605.

31 T.C.Basappa v. T.Nagappa, AIR 1954 SC 440.

26

Quo Warranto

The meaning of term Quo-Warranto is What is your authority. The writ is

issued to call upon the holder of a public office to show to the court, under what
authority he/she is holding that office, which he/she is not entitled to hold. 32 It is
issued against the usurper of an office. The writ of quo-Warranto will lie, if the
following conditions are satisfied. (A) The office in question must be a public
office. (B) The office must be substantive in character i.e. an office independent
in title. It is not applicable to ministerial office who holds office at the pleasure
of the master. (C) The respondent must not be legally qualified to hold the office
or remain in the office.

32 B.R.Kapur v. State of T.N., (2001) 7 SCC 231, 315-16 (para 79): AIR 2001 SC 343.

27

Judicial Review
The power of judiciary to review and determine the validity of a law or an order
may be described as the powers of Judicial Review.
It means that the constitution is the supreme law of the land and any law
inconsistent therewith is void through judicial review.
It is the power exerted by the courts of a country to examine the actions of the
legislatures, executive and administrative arms of government and to ensure that
such actions conform to the provisions of the nations Constitution. Judicial
review has two important functions, like, of legitimizing government action and
the protection of constitution against any undue encroachment by the government.
The Supreme Court has been vested with the power of judicial review. It means
that the Supreme Court may review its own Judgement order.33 Judicial review
can be defined as the competence of a court of law to declare the
constitutionality or otherwise of a legislative enactment.
Being the guardian of the Fundamental Rights34 and arbiter of the constitutional
conflicts between the Union and the States with respect to the division of
33 M.C.Mehta v. Union of India, (1997) 11 SCC 227.
34 M.C.Mehta v. Union of India, (1999) 6 SCC 237 (para 24): AIR 1999 SC 2583.

28

powers between them, the Supreme Court enjoys the competence to exercise the
power of reviewing legislative enactments both of Parliament and the States
legislatures.35
The power of the court to declare legislative enactments invalid is expressively
provided by the Constitution under Article 13, which declares that every law in
force, or every future law inconsistent with or in derogation of the Fundamental
Rights, shall be void. Other Articles of the Constitution (131-136) have also
expressively vested in the Supreme Court the power of reviewing legislative
enactments of the Union and the States.
The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of
the Constitution (1976), in several ways. But some of these changes have been
repealed by the 43rd Amendment Act, 1977. But there are several other
provisions which were introduced by the 42nd Amendment Act 1976 not
repealed so far.
These are:
(i) Arts. 323 A-B. The intent of these two new Articles was to take away the
jurisdiction of the Supreme Court under Art. 32 over orders and decisions of
Administrative Tribunals. These Articles could, however, be implemented only
by legislation. Art. 323A has been implemented by the Administrative Tribunals
35 Pyarelal Balu Ram v. Union of India, AIR 1956 SC 175.

29

Act, 1985 (ii) Arts. 368 (4)-(5). These two Clauses were inserted in Art. 368
with a view to preventing the Supreme Court to invalidate any Constitutional
Amendment Act on the theory of basic features of the Constitution.
These Clauses have been emasculated by the Supreme Court itself, striking
them down on the ground that they are violative in the two basic features of
the Constitution:
(a) The limited nature of the amending power under Art. 368 and
(b) Judicial review in the Minerva Mills case.
The court was very reluctant and cautious to exercise its power of Judicial
Review, during the first decade, when the Supreme Court declared invalid only
one of total 694 Acts passed by the Parliament.
During the second decade the court asserted its authority without any hesitation
which is reflected in the famous Golak Nath case and Kesavananda Barti case.
In these cases the Supreme Court assumed the role of constitution making.
Indian Judiciary has been able to overcome the restriction that was put on it by
the 42nd amendment, with the help of the 43rd and 44th amendments. Now the
redeeming quality of Indian judiciary is that no future governments could clip
its wings or dilute its right of Judicial Review. In fact, now the Judicial
Review is considered to be the basic feature of our Constitution.

30

Articles 32 and 226 entrusts the roles of the protector and guarantor of
fundamental rights to the Supreme and High Courts. 36 The legitimacy of any
legislation can be challenged in the court of law on the grounds that the
legislature is not competent enough to pass a law on that particular subject
matter; the law is repugnant to the provisions of the constitutions; or the law
infringes one of the fundamental rights.37
There is no express provision in our constitution empowering the courts to
invalidate laws, but the constitution has imposed definite limitations upon each
of the organs, the transgression of which would make the law void. The court is
entrusted with the task of deciding whether any of the constitutional limitations
has been transgressed or not.
Golak Nath Vs. the state of Punjab case in 1967, where the validity of
three constitutional amendments (1st, 4th and 17th) was challenged, that
the Supreme Court reversed its earlier decision and uphold the provision
under article 368 which put a check on the Parliaments propensity to
abridge the fundamental Rights under chapter III of the Constitution.
Kesavananda Bharti Vs. State of Kerala case in 1973, the constitutional
validity of the twenty-fourth, twenty fifth and twenty ninth amendments
36 M.C.Mehta v. Union of India, (2004) 12 SCC 188.
37 M.C.Mehta v. Union of India, AIR 1988 SC 1115: (1988) 1 SCC 471.

31

was challenged wherein the court held that even though the Parliament is
entitled to amend any provision of the constitution it should not tamper
with the essential features of the constitution; and that Article 31c is void
since it takes away invaluable fundamental rights.

32

Judicial Activism
India has a recent history of judicial activism, originating after the emergency in
India which saw attempts by the Government to control the judiciary. The
Public Interest Litigation was an instrument devised by the courts to reach out
directly to the public, and take cognizance though the litigant may not be the
victim."Suo motu" cognizance allows the courts to take up such cases on its
own.
Indias judges have sweeping powers and a long history of judicial activism that
would be all but unimaginable in the United States. In recent years, judges
required Delhis auto-rickshaws to convert to natural gas to help cut down on
pollution, closed much of the countrys iron-ore-mining industry to cut down on
corruption and ruled that politicians facing criminal charges could not seek reelection. Indeed, Indias Supreme Court and Parliament have openly battled for
decades, with Parliament passing multiple constitutional amendments to
respond to various Supreme Court rulings.
All such carries the force of the Constitution of India Article 39A although
before and during the Emergency the judiciary desisted from "wide and elastic"

33

interpretations, termed Austinian, because Directive Principles of State Policy

are non-justiciable. This despite the constitutional provisions for judicial review
and B R Ambedkar arguing in the Constituent Assembly Debates that "judicial
review, particularly writ jurisdiction, could provide quick relief against
abridgment of Fundamental Rights and ought to be at the heart of the
Constitution."
Fundamental Rights as enshrined in the Constitution have been subjected to
wide review, as now said to be encompassing right to privacy and right to
livelihood, right to education among others. The 'basic structure' of the
Constitution has been mandated by the Supreme Court not to be alterable,
notwithstanding the powers of the Legislative under Article 368. This was
recognized, and deemed not applicable the High Court of Singapore in Teo Soh
Lung v. Minister for Home Affairs.
Recently there is a rising trends in judicial activism in the land. The doors of the
judiciary are kept open for redressing the grievances of persons who cannot
ordinarily have access to justice. The strict observance of the traditional rule of
locus standi will do injustice to certain persons who do not have the money,
knowledge and facilities of approaching court.
In such cases if a public spirited person comes forward on their behalf courts
relax the rules an adjudicate over the matter. Thus, in the matter of socially and

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economically backward groups or persons who are not aware of their rights or
not capable of pursuing their case in a court, the complex and rigorous
procedural formalities are not insisted upon. At this level there are cases when
press reports were taken as write petitions and reliefs granted. Letters addressed
to the courts were also treated as petitions.
Some example cases:
Brown v. Board of Education 1954 Supreme Court ruling ordering the
desegregation of public schools.
Roe v. Wade 1973 Supreme Court ruling decriminalizing abortion.
Bush v. Gore The United States Supreme Court case between the majorparty candidates in the 2000 presidential election, George W. Bush and Al
Gore. The judges voted 5-4 to halt the recount of ballots in Florida and, as
a result, George Bush was elected President.
Citizens United v. Federal Election Commission 2010 Supreme Court
decision declaring Congressionally enacted limitations on corporate
political spending and transparency as unconstitutional restrictions on
free speech.

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Hollingsworth v. Perry 2013 decision by federal judge Vaughn R.

Walker overturning California's constitutional amendment to ban samesex marriage.
Contempt of Court and disqualification of Pakistani Prime Minister Yusuf
Raza Gilani by the Supreme Court of Pakistan chief justice Iftikhar
Muhammad Chaudhry.

Judicial Restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to
limit the exercise of their own power. It asserts that judges should hesitate to
strike down laws unless they are obviously unconstitutional. Judiciallyrestrained judges respect stare-decisis, the principle of upholding established
precedent handed down by past judges.
There is broad (though not absolute) separation of powers in the Indian
Constitution vide Divisional Manager, Aravali Golf Course vs. Chander Haas,
2008. The Constitution of India did not provide for the judiciary to be a super
legislature or a substitute for the failure of the other two organs. Thus, the need
arises for the judiciary to lay down its own limitations.

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One of the examples of judicial restraint is the case of State of Rajasthan v.

Union of India,38 in which the court rejected the petition on the ground that it
involved a political question and therefore the court would not go into the
matter.

In S.R. Bommai v. Union of India39 the judges said that there are certain
situations where the political element dominates and no judicial review is
possible.
The exercise of power under Art.356 was a political question and therefore the
judiciary should not interfere. Ahmadi J. said that it was difficult to evolve
judicially manageable norms to scrutinize the political decisions and if the
courts do it then it would be entering the political thicket and questioning the
political wisdom, which the court must avoid.

In Almitra H. Patel v. Union of India, where the issue was whether directions
should be issued to the Municipal Corporation regarding how to make Delhi
clean, the Court held that it was not for the Supreme Court to direct them as to
how to carry out their most basic functions and resolve their difficulties, and
that the Court could only direct the authorities to carry out their duties in
accordance with what has been assigned to them by law.
38 AIR 1977 SC 1361.
39 (1994) SCC 1.

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Justice A.S. Anand former Chief Justice of India, in a public lecture cautioned
that with a view to see that judicial activism does not become judicial
adventurism, judges need to be circumspect and self-disciplined in the
discharge of their judicial functions. The worst result of judicial activism is
unpredictability. Unless judges exercise self-restraint, each judge can become a
law unto him and issue directions according to his personal fancies, which will
create chaos. Reservations have been expressed in many quarters about some
very recent decisions of the Supreme Court.

The Indian Supreme Court, while conservative in the initial years, had later a
burst of judicial activism through the social philosophies of Justice
Gajendragadkar, Krishna Iyer, P.N. Bhagwati, etc. who in the garb of
interpretation of Articles 14,19 and 21 of the Indian Constitution created a host
of legal norms by judicial verdicts.

Part III of the Indian Constitution enumerates certain Fundamental Rights which
are enforceable e.g. freedom of speech, liberty, equality, freedom of religion,
etc.

On the other hand Part IV called the Directive Principles of State Policy contain
certain socio-economic ideals e.g. right to work, to education, to a living wage,

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to health etc. which though unenforceable are ideals which the State is directed
to strive for. Though Article 37 states that these Directive Principles are
unenforceable, the Indian Supreme Court has enforced many of them often by
reading them into certain Fundamental Rights e.g. in Unnikrishans40 case the
right to education was read into Article 21.

40 (1993) SCC 645.

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Cases
Cases related to Art. 32:
Kisan Shankar Kathore v Arun Dattatray Sawant and Others, Civil
Appeal Jurisdiction, Civil Appeal No 4261 OF 2007, Supreme Court of
India judgement dated May 9, 2014.
Union of India v Sriharan @ Murugan and Others, Criminal Original
Jurisdiction, Writ Petition (Criminal) No 48 OF 2014, Supreme Court of
India judgement dated April 25, 2014.
Samta Aandolan Samiti and Another v Union of India and Others, Civil
Original Jurisdiction, Writ Petition (Civil) No 677 OF 2013.
Gurpal Singh Vs High Court of Judicature for Rajasthan, CIVIL
ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 200 OF
2006, Supreme Court of India judgement dated November 27, 2012.
Kishore Samrite Vs State of UP and Others, Criminal Appeal No. 1406 of
2012, Supreme Court of India judgement dated October 18, 2012.
Sabeeha Faikage and Others Vs Union of India and Others, Writ Petition
(Civil) No. 505 of 2006, Supreme Court of India order dated October 18,
2012.
Baby Devassy Chully @ Bobby Vs Union of India and Others, Criminal
Appeal No. 866 of 2008, Supreme Court of India judgement dated
October 12, 2012.

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Gulzar Ahmed Azmi and Another Vs Union of India and Others, Writ
Petition (CRL.) No. 19 of 2012, Supreme Court of India judgement
delivered on October 11, 2012.
Sahara India Real Estate Corp. Ltd. and Others Vs Securities and
Exchange Board of India and anr., Supreme Court Judgement delivered
on September 11, 2012.

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Conclusion
Article 32 is a vast topic which needed to be deeply understood in its concept
and application. This Article contains the important aspects such as the five
writs, Judicial Review, Judicial Activism, Judicial Restraint, etc most of which i
have mentioned in my project, these important aspects have been dealt with
some of the main important cases which our Supreme Court had passed
judgement.
Also mentioned famous landmark case decisions given by Supreme Court of
India as well as Supreme Court of other Countries. From this we could
understand many things about Art. 32 that is how this Article is accepted
throughout the world and not only in India.

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Bibliography
1. Constitution of India, Durga Das Basu.
2. Constitution of India, H.M.Seervai.
3. Constitution of India, J.N.Pandey.
4. www.wikipedia.com.
5. Articles written by Judges.
6. Journals written by Advocates and Judges.

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