CASE ANALYSIS ON DISCOURAGEMENT OF THE USE OF ARTICLE 32
Article 32 has also served as the foundation for petitions for public welfare and interest since
the establishment of Public Interest Litigation (PIL) jurisprudence in the 1980s, when the
petitioner has not necessarily suffered a violation of their fundamental rights. Article 32 of
the Constitution has been used to preserve fundamental rights ever since it was enacted.
The debate over whether article 32 should be discouraged or encouraged began when ex-CJI
Justice S A Bobde ruled in a case that art 226 should be used instead of 32..
SA BOBDE ’S VIEW:
He noted that there is a spate of Article 32 petitions and reiterated that the High Court can
also uphold fundamental rights (under article 226).
ARTICLE 32 OF THE CONSTITUTION (RIGHT TO CONSTITUTIONAL
It is a fundamental right, which states that individuals have the right to approach
the Supreme Court (SC) seeking enforcement of other fundamental rights recognized by
The SC has the power to issue directions or orders or writs for the enforcement of any
of the fundamental rights. The writs issued may include habeas corpus, mandamus,
prohibition, certiorari and quo-warranto.
The right to move the SC shall not be suspended except as otherwise provided for by
the Constitution. Thus, the Constitution provides that the President can suspend the
right to move any court for the enforcement of the fundamental rights during a national
emergency (Article 359).
In case of the enforcement of Fundamental Rights, the jurisdiction of the SC is original
but not exclusive. It is concurrent with the jurisdiction of the high court
WHY DOES THE SUPREME COURT WANT TO DISCOURAGE ARTICLE 32
There have been concerns for some time over the overburdening of the Supreme Court in
hearing various matters, especially since the advent of the PIL, and that the pendency rates
there need to be addressed by reducing the number of cases it hears when there is an
alternative remedy available.
In 1987, in the case of PN Kumar vs Municipal Corporation of Delhi, for instance, the apex
court dismissed a petition under Article 32 and urged the petitioner to go to the relevant high
court instead, as
1. The scope of the powers of the High Courts under Article 226 of the Constitution is
wider than the scope of the powers of this Court under Article 32 of the Constitution.
2. The relief prayed for in the petition is one which may be granted by the High Court
and any of the parties who are dissatisfied with the judgment of the High Court can
approach this Court by way of an appeal.
The Supreme Court’s guidelines on the filing of PILs also state that if a PIL is filed which
can be dealt with by the high courts, it should be sent there instead.
Article 226 of the Constitution empowers a high court to issue writs including habeas
corpus, mandamus, certiorari, prohibition and quo warranto for the enforcement of the
fundamental rights of the citizens and for any other purpose.
Even though the usage of article 226 is encouraged as it facilitates in mitigating the caseload
on the supreme however on the contrary , even as the SC underlines the powers of the high
courts, it has in the past transferred cases to itself from the high courts.
When such transfers are made, the petitioners lose a stage of appeal that would otherwise
have been available had the high courts heard and decided the case.
The SC also conveyed its concerns that in many matters involving personal liberty, where
it stated that the High Courts are not exercising their jurisdiction as constitutional courts.