Judicial review is defined in article 32 of the Constitution of India. Article 32(1), guarantee the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights. Article 32(2) empowers the Supreme Court to issue appropriate order or directions or writs for enforcement of fundamental rights.
Note - Writ does not lie to create or establish a legal right but to enforce a fundamental right that has already been established.
Note – Writ of Habeus Corpus is not maintainable against judicial order.
In Surabh Kumar v. Jailor, Koneila Jail (2014), the petitioner was arrested by police in connection with a criminal case and was produced before judicial custody. Court held that the petitioner cannot be said to be in unlawful custody so the writ is not maintainable.
Article 32(3), empowers the parliament by law to empower any court to exercise within limits of its jurisdiction all or any of the powers exercised by the Supreme Court. Article 32(4) states that right guaranteed under article 32 shall not be suspended except or otherwise provided by the constitution.
In Ramesh Thappadr v State of Madras (1950), the court held that this court is thus constituted the protector and guarantor of Fundamental Rights and it cannot consistently with the responsibility so laid upon it refuse to entertain application seeking protection against infringement of such right.
Enforcement of Fundamental Rights
Article 32 can be invoked only when there is infringement of Fundamental rights. In order to enforce fundamental rights, judicial review of administration, legislature and government action or non-action is permissible. Under 32(1) Supreme Court can, while considering a petition for enforcement of fundamental right declare an act to be ultra vires or beyond the competence of enacting legislature if it adversely a Fundamental Right.
In Bhushan Power and Steel limited v Rajesh Verma (2014), it held that if a violation of fundamental right cannot be shown then writ petition is not maintainable.
Final judgement of the Supreme Court cannot be assailed in an application under article-32 by an aggrieved person whether he was a party to the case or not. In Rupa Ashok Hurra v Ashok Hurrah (2002), it was held that jurisdiction of Supreme Court under article-32 cannot be invoked to challenge the validity of a final judgement /order passed by Supreme Court.
In-State of Karnataka v State of Tamil Nadu (2017), the court held that it is the duty of Supreme Court to provide a protective umbrella for the substance of the fundamental right of the citizen of India. The protection of fundamental right has to be interpreted keeping in mind the social economic and environmental issue.
A question arose that a petitioner seeking to enforce his fundamental right can go straight to Supreme Court under article 32 or should first go to high court under 226?
In Ramesh Thappar v State of Madras(1950), it was held that petitioner can come directly to Supreme Court.
In Knnubhai Brahmbhatt v State of Gujarat(1987), it was held that the petitioner should come first to the high court. This judgement was not practised. Ruling in this case, seeks to negate what the SC has itself said in no. of cases. Filing writ petition in High Court will make article-32 redundant. Because having gone to the High Court first the petitioner will then come to Supreme Court by way of appeal and not under article-32. This will also cause delay and will be costlier.
In Udai Chaurasia v State of Assam(2015), it was held that if the matter is pending in High Court it would not be entertained in Supreme Court.
Broad view of Article- 32
In Gopalan v. State of M.P.(1950), it was held that article-32 cannot be invoked even when a law declares a particular administrative action as final.
In S.Nagaraj v. State of Karnataka(1993), the power of Supreme Court under Article- 32 are not fettered by any legal constrain, if, in the exercise of these power the court commits a mistake, the court has plenary power to correct that mistake.
In Khatri v State of Bihar (1981), in this case, the petitioner filed a writ petition under Article 21 that they were blinded by police while they were in custody. Question arouse whether the court could order the production of certain report submitted by CID to state government and some correspondence between the government and certain officials. Government claimed that this material was protected by section 162 and 172 of CrPC, rejecting the contention the court said that proceeding under article 32 is neither an enquiry nor trial for offence. Neither SC is a Criminal Court while hearing a writ petition nor is petitioner an accused person. So these sections of CrPC are not applicable to the court’s writ jurisdiction under Article-32.