Right to Constitutional Remedies (Article 32)
Indian Polity › Fundamental Rights · Topic 6.9
Article 32 guarantees the right to move the Supreme Court for enforcement of Fundamental Rights. It is itself a Fundamental Right and a basic feature, with writ power concurrent with the high courts under Article 226.
6 min read · UPSC Prelims · Polity · Fundamental Rights
At a Glance
- What it is The right to move the Supreme Court for enforcement of Fundamental Rights, itself a Fundamental Right
- Article Article 32 (high courts: Article 226)
- Called “The very soul of the Constitution” by Dr Ambedkar
- Status A basic feature of the Constitution
- Exam link UPSC Prelims, Polity: Fundamental Rights
Where Does It Fit?
This is the ninth topic of the category on Fundamental Rights. A declaration of rights is meaningless without a way to enforce them, so Article 32 gives the aggrieved person a direct route to the Supreme Court. The Right to Constitutional Remedies is the last of the six Fundamental Rights.
What Does Article 32 Provide?
Article 32 confers the right to remedies for the enforcement of the Fundamental Rights. The right to get the Fundamental Rights protected is itself a Fundamental Right, which makes the rights real. Dr Ambedkar called Article 32 the most important Article, “an Article without which this Constitution would be a nullity. It is the very soul of the Constitution and the very heart of it”. The Supreme Court has ruled that Article 32 is a basic feature, so it cannot be abridged even by an amendment.
| Provision | Meaning |
|---|---|
| 32(1) | The right to move the Supreme Court by appropriate proceedings is guaranteed |
| 32(2) | The Supreme Court can issue directions, orders or writs including habeas corpus, mandamus, prohibition, certiorari and quo-warranto |
| 32(3) | Parliament can empower any other court to issue them, without prejudice to the Supreme Court; this does not include high courts, which have Article 226 |
| 32(4) | The right shall not be suspended except as the Constitution provides, for example by the President during a national emergency under Article 359 |
Original and Wide Jurisdiction
The Supreme Court is the defender and guarantor of the Fundamental Rights. Its jurisdiction under Article 32 is original, because an aggrieved citizen can go directly to the Court and not by way of appeal, and wide, because it covers orders, directions and writs of all kinds. The purpose is to provide a guaranteed, effective, expeditious, inexpensive and summary remedy.
Only the Fundamental Rights can be enforced under Article 32, and not other rights such as non-fundamental constitutional rights, statutory rights or customary rights. A violation of a Fundamental Right is the condition for using it. Article 32 cannot be used merely to test the constitutionality of an executive order or a law unless it directly infringes a Fundamental Right.
Suspension During an Emergency
The Fundamental Rights can be suspended during a National Emergency, except the rights in Articles 20 and 21. The six rights of Article 19 are automatically suspended only when the emergency is declared on the ground of war or external aggression, and not on the ground of armed rebellion. Under Article 359 the President can suspend the right to move any court for enforcement of Fundamental Rights.
In the A.D.M. Jabalpur case (1976), the Supreme Court held that when enforcement of Article 21 is suspended by a Presidential Order under Article 359, a detenu has no standing to challenge detention by a writ petition in a high court. The Court was later criticised for failing to act as the defender of Fundamental Rights during the emergency of 1975 to 1977. The 44th Amendment Act (1978) amended Article 359 so that the enforcement of Article 21 cannot be suspended, and the judgment is no longer good law.
Article 32 and Article 226
In enforcing the Fundamental Rights the Supreme Court’s jurisdiction is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226, so the aggrieved party can move either court directly. Since the right under Article 32 is itself a Fundamental Right, the availability of an alternate remedy is no bar to relief under it. However, the Court has ruled that where relief through the high court is available under Article 226, the party should first move the high court.
| Point | Supreme Court (Article 32) | High Court (Article 226) |
|---|---|---|
| Purpose of writs | Only for enforcement of Fundamental Rights | For Fundamental Rights and for any other purpose, such as an ordinary legal right |
| Territorial reach | Against any person or government throughout India | Against persons or authorities within its jurisdiction, or outside if the cause of action arises within it |
| Nature of remedy | A Fundamental Right; the Court may not refuse | Discretionary; the court may refuse |
Why Is This Topic Important?
- Enforcement machinery Without Article 32, rights would remain declarations
- Basic feature It cannot be amended away
- Frequent comparisons Article 32 versus Article 226 is a staple question
What Came Next?
The next topic covers the five writs, habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
Key People and Terms
- Original jurisdiction The power to hear a matter directly, not on appeal
- Writ An order of a court for enforcement of a right
- Concurrent jurisdiction Shared by the Supreme Court and high courts under Articles 32 and 226
- Article 359 Allows the President to suspend the right to move courts during a national emergency
- Sine qua non The violation of a Fundamental Right is the condition for Article 32
Exam Corner
Points to Remember
- Article 32 is a Fundamental Right and a basic feature.
- Supreme Court: only Fundamental Rights; high court: any other purpose too.
- Article 32 is original but not exclusive.
- Suspension of the right during emergency: Article 359.
Do Not Confuse With
- Article 32 and Article 226 Article 32 is a Fundamental Right of the Supreme Court; Article 226 is discretionary for high courts
- Original and appellate Under Article 32 the citizen goes directly to the Supreme Court
- Fundamental and legal rights Only Fundamental Rights can be enforced under Article 32
Memory Hook
Article 32 is the heart: a right that guards all the other rights.
Mains Angle
Questions on this topic usually ask why Article 32 is called the soul of the Constitution. Use these points to add depth.
- Rights made real Article 32 makes the Fundamental Rights enforceable by the Supreme Court
- Basic feature It cannot be taken away by amendment
- Concurrent remedy High courts under Article 226 give a wider but discretionary remedy
- Limits Only Fundamental Rights and not ordinary rights can be enforced
A Question You May Face
An original practice question, not a past paper question.
“Why did Dr Ambedkar call Article 32 the heart of the Constitution? Compare it with Article 226.”
How to Answer
- Introduction Ambedkar’s description.
- Article 32 The four provisions and the basic feature status.
- Article 226 Differences in scope, reach and nature.
- Conclusion Two layers of remedy protect rights.
GS Relevance
Frequently Asked Questions
What is the Right to Constitutional Remedies?
It is the right in Article 32 to move the Supreme Court for the enforcement of the Fundamental Rights. It is itself a Fundamental Right, which makes the other rights real, and the Court can issue directions, orders and writs of all kinds, including habeas corpus and mandamus.
Why did Dr Ambedkar call Article 32 the soul of the Constitution?
He said it is an Article without which the Constitution would be a nullity, the very soul and heart of the Constitution, because rights are meaningless without an effective way to enforce them. The Court has also held that it is a basic feature.
Can Article 32 be amended?
No. The Supreme Court has ruled that Article 32 is a basic feature of the Constitution, so it cannot be abridged or taken away even by an amendment to the Constitution. The right to move the Court stays safe unless the Constitution itself provides otherwise.
What is the difference between Article 32 and Article 226?
Under Article 32 the Supreme Court issues writs only for Fundamental Rights, anywhere in India, and the remedy is a Fundamental Right. Under Article 226 high courts issue writs for other purposes as well, within their territory, as a discretionary remedy.
Can the right under Article 32 be suspended?
Only as the Constitution provides. During a national emergency the President can suspend the right to move any court for enforcement of Fundamental Rights under Article 359. It cannot otherwise be suspended, and since the 44th Amendment Act (1978) the enforcement of Article 21 cannot be suspended at all.
Can Article 32 be used for non-fundamental rights?
No. Only the Fundamental Rights can be enforced under Article 32, and not statutory, customary or other constitutional rights. A violation of a Fundamental Right is the sine qua non of using Article 32, so the Court cannot decide questions that do not involve such rights.
PYQ Practice — Statement Analysis
1 Article 32 is itself a Fundamental Right.
The right to move the Supreme Court is guaranteed.
2 The Supreme Court can issue writs under Article 32 for any legal right.
Only for Fundamental Rights.
3 Article 32 is a basic feature of the Constitution.
It cannot be abridged by an amendment.
4 The jurisdiction of the Supreme Court under Article 32 is exclusive.
It is original but concurrent with high courts under Article 226.
5 Remedy under Article 226 is a Fundamental Right.
It is discretionary; only Article 32 is a Fundamental Right.
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