Context: Recently, a Supreme Court Bench headed by Chief Justice of India S A Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution. 

Key Points

• CJI’s View: CJI 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 Remedies): It is a fundamental right, which states that individuals have the right to approach the Supreme Court (SC) seeking enforcement of other fundamental rights recognised by the Constitution.
• The SC has 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).

Can High Courts be approached in cases of violation of fundamental rights?
Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

• Habeas corpus: (related to personal liberty in cases of illegal detentions and wrongful arrests)
• Mandamus: directing public officials, governments, courts to perform a statutory duty;
• Quo warranto: to show by what warrant is a person holding public office;
• Prohibition: directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
• Certiorari: re-examination of an order given by judicial, quasi-judicial or administrative authorities.

In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court. When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32. Article 226, however, is not a fundamental right like Article 32.

• 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 under Article 226.
• Original, because an aggrieved citizen can directly go to the SC, not necessarily by way of appeal.
• Concurrent means when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.
• Since the right guaranteed by Article 32 (ie, the right to move the SC where a fundamental right is infringed) is in itself a fundamental right, the availability of alternate remedy is no bar to relief under Article 32.
• However, the SC has ruled that where relief through the high court is available under Article 226, the aggrieved party should first move the high court.
• In the Chandra Kumar case (1997), the SC ruled that the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic structure of the Constitution.

Counter-Argument

• Even as the SC underlines the powers of the high courts, it has in the past transferred cases to itself from the high courts.
• Most recently, the SC transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court. Incidentally, the petitioners had not sought such a transfer.
• 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.
• Recently, the SC also conveyed its concerns that in many matters involving personal liberty, the High Courts are not exercising their jurisdiction as constitutional courts.

Additional Information
Article 226 of the Constitution

• 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.
• The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right. This implies that the writ jurisdiction of the high court is wider than that of the SC.
• This is because the SC can issue writs only for the enforcement of fundamental rights and not for any other purpose, that is, it does not extend to a case where the breach of an ordinary legal right is alleged.
• The high court can issue writs to any person, authority and government not only within its territorial jurisdiction but also outside its territorial jurisdiction if the cause of action arises within its territorial jurisdiction.