“When the people of India entered into a social contract in the form of a Constitution, they chose the conception of democracy which not only focused on rule by elected bodies but also on certain substantive values and on institutional governance.”Tweet
Article 32 vests Supreme Court with the power to enforce the rights in Part III (Fundamental Rights) of the Constitution. Part III of the Constitution of India enshrines the fundamental rights of the people of India. Article 13 of the Constitution stipulates that the State shall not make any law which takes away or abridges the rights conferred in Part III and that any law made in contravention of this condition, shall, to the extent of the contravention, be void.
Article 32 complements Article 13 and provides the right to a constitutional remedy for the enforcement of rights conferred by Part III:
“Article 32. Remedies for the enforcement of rights conferred by this Part.
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”
The Constitution of India is unique in that its provisions expressly accord the judiciary with the power to review the actions of the legislative and executive branches of government, unlike in many other countries. Article 32 makes fundamental rights justiciable and is worded broadly. The right to approach Supreme Court for the enforcement of the fundamental rights embodied in Part III is itself a fundamental right by virtue of Clause (1) of Article 32.
It states that the Court may be moved “by appropriate proceedings.” This expression means that the appropriateness of the proceedings depends on the relief sought by the petitioner. Clause (1) of Article 32 does not place any constraints on the power of the Court to entertain claims that the rights enumerated in Part III have been violated.
Similarly, Clause (2) is worded expansively and enlarges the scope of the powers of the Court to enforce fundamental rights. This is evident from two parts of the clause:
a) First, Clause (2) provides this Court with the power to issue “directions, orders, or writs,” which indicates that this Court may mould the relief according to the requirements of the case before it and that it is not constrained to a particular set of cases in which a particular relief or set of reliefs may be granted. This expression indicates that the power of the Court is not limited to striking down an offending statute, rule, or policy.
Rather, it extends to issuing directions or orders or writs for the enforcement of fundamental rights. Put differently, this means that the power of the Court is not only ‘negative’ in the sense that it may restrain the state from doing something which infringes upon the fundamental rights of people but is also ‘positive’ in the sense that it may compel the state to do something or act in a manner which gives effect to such rights; and
b) Second, the word “including” in Clause (2) indicates that the five writs mentioned in that clause are illustrative. The word “including” is used as a word of enlargement. The Court may issue directions, orders, or writs other than the five writs specified.
Therefore, the manner in which Article 32 has been drafted does not limit the powers of Supreme Court. To the contrary, it clearly and unambiguously vests this Court with the power to conduct judicial review and give effect to the fundamental rights enumerated in Part III.
Constitution Assembly Debates
The extent of the powers vested in Supreme Court by Article 32 as envisaged by the framers of the Constitution can be understood from the Constituent Assembly’s discussion of the provision which was eventually adopted as Article 32.
Mr. H V Kamath was of the opinion that it was unwise to particularize the writs which this Court ought to issue, and that this Court should have the power to issue any directions it considered appropriate in a case.
In service of this idea, he moved an amendment to substitute clause (2) of the provision which is now Article 32. The substituted clause was to read:
“The Supreme Court shall have power to issue such directions or orders or writs as it may consider necessary or appropriate for the enforcement of any of the rights conferred by this part.”
Responding to this proposal, Dr. B R Ambedkar underscored that this Court had been endowed with wide powers of a general nature:
“…what has been done in the draft is to give general power as well as to propose particular remedies. The language of the article is very clear … These are quite general and wide terms. …
these writs … ought to be mentioned by their name in the Constitution without prejudice to the right of the Supreme Court to do justice in some other way if it felt it was desirable to do so. I, therefore, say that Mr. Kamath need have no ground of complaint on that account.”
The power of Supreme Court to do justice is not, therefore, limited either by the manner in which Article 32 has been constructed or by any part of the Constitution. It is amply clear from both the plain meaning of Article 32 as well as the Constituent Assembly Debates that this Court has the power to issue directions, orders, or writs for the enforcement of the rights incorporated in Part III of the Constitution.
Judicial review and separation of powers
The doctrine of separation of powers, as it is traditionally understood, means that each of the three organs of the state (the legislature, the executive, and the judiciary) perform distinct functions in distinct spheres. No branch performs the function of any other branch.
The traditional understanding of this doctrine (also termed the “pure doctrine”) does not animate the functioning of most modern democracies. That our Constitution does not reflect a rigid understanding of this doctrine has long been acknowledged by this Court.
In practice, a functional and nuanced version of this doctrine operates, where the essential functions of one arm of the state are not taken over by another arm and institutional comity guides the actions of each arm. In other words, the functional understanding of the separation of powers demands that no arm of the state reigns supreme over another.
The separation of powers undoubtedly forms a part of the basic structure of the Constitution, but equally, the power of courts to conduct judicial review is also a basic feature of the Constitution. The doctrine of separation of powers certainly does not operate as a bar against judicial review.
In fact, judicial review promotes the separation of powers by seeing to it that no organ acts in excess of its constitutional mandate. It ensures that each organ acts within the bounds of its remit. Further, the Constitution demands that Supreme Court conduct judicial review and enforce the fundamental rights of the people. The framers of our Constitution were no doubt conscious of this doctrine when they provided for the power of judicial review.
Being aware of its existence and what it postulates, they chose to adopt Article 32 which vests the Court with broad powers. The doctrine of separation of powers cannot, therefore, stand in the way of Supreme Court issuing directions, orders, or writs for the enforcement of fundamental rights. The directions, orders, or writs issued for this purpose cannot encroach upon the domain of the legislature. This Court cannot make law, it can only interpret it and give effect to it.
The existence of the power of judicial review cannot be conflated with the manner in which the power is exercised. The exercise of the power of judicial review abides by settled restraints which acknowledge that the power of law making is entrusted to democratically elected legislative bodies and that the formulation and implementation of policy is entrusted to a government which is accountable to the legislature.
In the exercise of it the legislative function the legislature may incorporate policies which will operate as binding rules of conduct to operate in social, economic and political spaces. Judicial review is all about adjudicating the validity of legislative or executive action (or inaction) on the anvil of the fundamental freedoms incorporated in Part III and on the basis of constitutional provisions which structure and limit the exercise of power by the legislative and executive arms of the State.
Judicial review is a constitutionally entrenched principle which emanates from Article 13. It is not a judicial construct. The power of judicial review has been expressly conferred by the Constitution. In the exercise of the power of judicial review, the Court is cognizant of the fact that the legislature is a democratically elected body which is mandated to carry out the will of the people.
It is in furtherance of this mandate that Parliament and the State legislatures enact laws. Courts are empowered to adjudicate upon the validity of legislation and administrative action on the anvil of the Constitution.
In the exercise of the power of judicial review, the Court does not design legislative policy or enter upon the legislative domain.
The power of the Court to enforce rights under Article 32 is different from the power of the legislature to enact laws
In Powers, Privileges and Immunities of State Legislatures, In re, a seven Judge Bench of Supreme Court held:
“…whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens …
If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country…”
The Court has previously utilized its power under Article 32 to issue directions or orders for the enforcement of fundamental rights. This power does not extend only to striking down an offending legislation but also to issuing substantive directions to give effect to fundamental rights, in certain situations.
In Common Cause v. Union of India, a Constitution Bench of Supreme Court found that the right to life, dignity, self-determination, and individual autonomy meant that people had a right to die with dignity. This Court delineated guidelines and safeguards in terms of which Advance Directives could be issued to cease medical treatment in certain circumstances.
Similarly, in Vishaka v. state of Rajasthan (1997) the Court issued guidelines for the protection of women from sexual harassment at the workplace.
These guidelines were grounded in the fundamental rights to equality under Article 14, to practise any profession or to carry out any occupation, trade or business under Article 19(1)(g), and to life and liberty under Article 21. The decisions of the Court in Common Cause (supra) and Vishaka (supra) are significant because the Court issued directions for the enforcement of fundamental rights in the absence of a law which was impugned before it.
The role of courts in the democratic process
The argument that the decision of the elected branch is democratic and that of the judicial branch is not is premised on the principle of electoral representation.
The proposition is that the exercise of the power of judicial review would constrain the right of citizens to participate in political processes. This is because courts are vested with the power to overturn the will of the people which is expressed through their elected representatives.
This is a narrow definition of democracy, where democracy is viewed through electoral mandates and not in constitutional terms. Additionally, it overlooks the importance of a Constitution which prescribes underlying values and rules of governance for the sustenance of a democratic regime.
If all decisions of the elected wing of the State are considered to be democratic decisions purely because of the manner in which it is vested with power, what then, is the purpose of the fundamental rights and the purpose of vesting this Court with the power of judicial review? Framing the argument on the legitimacy of the decisions of this Court purely in terms of electoral democracy ignores the Constitution itself and the values it seeks to engender.
Electoral democracy – the process of elections based on the principle of ‘one person one vote’ where all citizens who have the capacity to make rational decisions (which the law assumes are those who have crossed the age of eighteen) contribute towards collective decision making is a cardinal element of constitutional democracy.
Yet the Constitution does not confine the universe of a constitutional democracy to an electoral democracy. Other institutions of governance have critical roles and functions in enhancing the values of constitutional democracy. The Constitution does not envisage a narrow and procedural form of democracy.
When the people of India entered into a social contract in the form of a Constitution, they chose the conception of democracy which not only focused on rule by elected bodies but also on certain substantive values and on institutional governance. The Constitution defined democracy in terms of equal rights in political participation and of self-determination.
When democracy is viewed in this substantive and broad manner, the role of courts is not democracy-disabling but democracy-enabling. Much like the elected branch, the legitimacy of courts is also rooted in democracy. It is rooted in not operating in a democratic manner because if it was, then courts may be swayed by considerations which govern and guide electoral democracy.
Much like the elected branch, the legitimacy of courts is also rooted in democracy. It is rooted in not operating in a democratic manner because if it was, then courts may be swayed by considerations which govern and guide electoral democracy.Tweet
By vesting the judicial branch with the power to review the actions of other institutions of governance (including the legislature and the executive) on the touchstone of constitutional values, the Constitution assigns a role to the judiciary. The institutions of governance place a check on the exercise of power of the other institutions to further constitutional values and produce better, more democratic outcomes.
By vesting the judicial branch with the power to review the actions of other institutions of governance (including the legislature and the executive) on the touchstone of constitutional values, the Constitution assigns a role to the judiciary.Tweet
Courts contribute to the democratic process while deciding an issue based on competing constitutional values, or when persons who are unable to exercise their constitutional rights through the political process knock on its doors. For instance, members of marginalized communities who are excluded from the political process because of the structural imbalance of power can approach the court through its writ jurisdiction to seek the enforcement of their rights.
Justice DY Chandrachud in Supriyo @ Supriya Chakroborty & oth. v. Union of India (2023)
 State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
 Rai Sahib Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225
 Kalpana Mehta v. Union of India, (2018) 7 SCC 1
 S P Sampath Kumar v. Union of India, (1987) 1 SCC 124
 State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
 (1965) 1 SCR 413
 (2018) 5 SCC 1