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Right to Constitutional Remedies in India: BNSS 2023 vs CrPC | Advocate R.J. Sharma

Understanding the Right to Constitutional Remedies in India: The Shield of Article 32

R.J. Sharma, Advocate High Court & District Court

In the absence of an enforcement mechanism, a legal right is nothing more than a "pious wish." The framers of the Indian Constitution recognized that the majestic Fundamental Rights (Articles 14–30) would be hollow if citizens had no direct access to justice when those rights were violated. To prevent this, they enacted Article 32, the "Right to Constitutional Remedies."

Commonly referred to as the cornerstone of democratic governance, Article 32 is unique because it is itself a Fundamental Right. While other rights define what you are entitled to, Article 32 provides the machinery for their protection. It allows any citizen to move the Supreme Court of India directly, bypassing the traditional hierarchy of lower courts when a Fundamental Right is at stake.

Dr. B.R. Ambedkar famously remarked in the Constituent Assembly: "If I was asked to name any particular article in this Constitution as the most important... I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it."

The Statutory Framework: Article 32 vs. Article 226

While Article 32 empowers the Supreme Court, Article 226 provides similar powers to the High Courts. However, there are critical distinctions:

  • Article 32: Can only be invoked for the violation of Fundamental Rights. It is a fundamental right in itself, meaning the Supreme Court cannot refuse to entertain a valid petition.
  • Article 226: Can be invoked for the violation of Fundamental Rights and any "other legal right." However, the High Court’s jurisdiction is discretionary.

The Five Primal Writs

Under Article 32(2), the Supreme Court has the power to issue directions, orders, or writs. These are borrowed from English Common Law and include:

  1. Habeas Corpus: (To have the body) Used to release a person from unlawful detention.
  2. Mandamus: (We command) Issued to a public official to perform a mandatory statutory duty.
  3. Prohibition: Issued to a lower court to stop it from exceeding its jurisdiction.
  4. Certiorari: (To be certified) Issued to quash an order already passed by a lower court or tribunal.
  5. Quo-Warranto: (By what authority) Issued to enquire into the legality of a person's claim to a public office.

Landmark Judgments

Romesh Thappar v. State of Madras (1950)

Facts: The petitioner challenged an order banning his journal "Cross Roads" under the Maintenance of Public Order Act.

Significance: The Supreme Court held that Article 32 provides a "guaranteed" remedy. The Court is the protector and guarantor of Fundamental Rights and cannot refuse to entertain a petition solely because the party did not approach the High Court first.

L. Chandra Kumar v. Union of India (1997)

Issue: Whether the power of judicial review under Articles 32 and 226 could be excluded by Parliament.

Judgment: The Court declared that the power of judicial review over legislative action is a Basic Structure of the Constitution and cannot be taken away even by a Constitutional Amendment.

Vasanta Sampat Dupare v. Union of India (2025)

Facts: A recent petition under Article 32 sought reconsideration of a death sentence based on procedural lapses.

Judgment: The Court affirmed that while it won't routinely reopen concluded matters, Article 32 remains a plenary power to "do complete justice" if there is a serious breach of procedural safeguards affecting the Right to Life (Article 21).

Jurisprudential Analysis: The "Heart and Soul"

The jurisprudence of Article 32 has evolved through the concept of Public Interest Litigation (PIL). Historically, only the aggrieved person could approach the court (Locus Standi). However, in the 1980s, the Court relaxed this rule, allowing any public-spirited citizen to file a petition on behalf of the marginalized, thus democratizing access to the Supreme Court.

Practical Advice for Litigants: While you have the right to move the Supreme Court directly under Article 32, the Court increasingly encourages petitioners to approach the High Court under Article 226 first, unless the matter involves a question of national importance or extreme urgency. Always ensure your petition clearly identifies which specific Fundamental Right (e.g., Art 14, 19, or 21) has been infringed.

Recent Trends & Procedural Updates (2025-2026)

In recent years, the Supreme Court has emphasized that Article 32 should not be used as a "shortcut" for matters that can be resolved in Trial Courts or High Courts. With the implementation of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, procedural safeguards regarding arrest and detention have been modernized. The Court now frequently uses Article 32 to monitor the compliance of law enforcement with these new procedural standards to protect personal liberty.

Frequently Asked Questions (FAQs)

1. Can Article 32 be suspended? Yes, under Article 359, the President may suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. However, rights under Articles 20 and 21 cannot be suspended.
2. Can a private individual be sued under Article 32? Generally, writs are issued against the "State" or public authorities. However, the writ of Habeas Corpus can be issued against a private individual in cases of illegal confinement.
3. What is the difference between Prohibition and Certiorari? Prohibition is "preventive" (issued while the case is pending to stop proceedings), whereas Certiorari is "curative" (issued after the order is passed to quash it).
4. Can I file an Article 32 petition for a property dispute? No. Property rights are legal rights (Article 300A), not Fundamental Rights. You must use Article 226 or civil suits.
5. Is "Res Judicata" applicable to Article 32? Yes. If a High Court has already decided a matter under Article 226, you cannot file a fresh petition on the same facts under Article 32; you must instead appeal the High Court's decision.

Conclusion

Article 32 remains the most potent weapon in the armory of the Indian citizen. It transforms the Constitution from a mere parchment into a living document. By guaranteeing a direct remedy to the highest court, it ensures that the rule of law prevails over the rule of whim, making the "Heart and Soul" of our democracy beat with the promise of justice for all.

Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. For specific legal grievances, please consult a qualified legal professional.