Article 32 is maintainable since the amendment is unconstitutional

Article 32 is the last and the most important of the fundamental rights that have guaranteed in
Part III of the Constitution. It is remedial in nature. The entire justiciablity of part III rests
upon this article. Dr BR Ambedkar described this article as the most important article of the
constit-ution and without this right- the constitution would be a nullity. The text of article 32
of the Indian constitution is as follows .(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..
According to the facts of the case article 32 is said to be deleted. Hence from the point of
view of the general public, their right to approach the highest court of the land for the
protection of their fundamental rights has been taken away, what is left is a slow system by
which an ordinary man has to knock the door of the courts in hierarchy by way of a system of
appeals. What can be observed from the current situation in Royalsthan is that, even after the
emergency has ended, the fundamental right which is the guardian of all other fundamental
right has been done away with. The basic concept upon which the constitution has been built
upon has come to an end with this amendment. It has been held in Prem Chand Garg v
Excise Commisioner, UP
1
by Gajendragadkar.J that the right to move the supreme court is
itself is a guaranteed right and the significance of this has been assessed. It is of reasonable
logic that a right without the scope for its protection is a meaningless right. The scope and
relevance of article 32 has been held to be greater than that of article 226 by this honourable
Supreme Court in Romesh Thappar v State of Madras
2
the power on article 32 is not as same
as 226 for the highcourts to issue certain writs for the rights conferred by part 3. Article 32
provides a guaranteed remedy for the enforcement of those rights and this remedial right
itself made a fundamental right by being included part 3. It has also been held in this case that
the Supreme Court cannot refuse to entertain applications seeking protection against the
infringement of such rights. Hence this petition under article 32 is also maintainable. A
person can approach a Supreme Court if one of the rights guaranteed by part 3 has been
infringed or threatened
3
. Here the article 32 itself being fundamental right has been entirely
taken away and grave violation of the entire concept of part 3, hence making a
maintainability of this petition in this court more strong.

1
AIR 1963 C 996
2
(1950) SCR 594
3
Fertilizer Co. Kamgar Union(Regd.) v. Union of India (1981) 1 SCC 568
In Kesavananda Bharathi v. State of Kerala
4
, the court held that the constitutional amendment
can only be challenged on the ground that it violates the basic structure of the constitution. In
L.ChandraKumars case
5
, held that the judicial review of administrative and legislative
actions was a part of the basic feature of the constitution, as it ensured limitatiorotection of
rights of the citizens, the court held that considering that the superior courts, i.e. the High
Court and the Supreme Court were vested with the power and the indpendance to ensure the
the protection of rights of the citizens, Article 32 and 226 formed a part of the basic structure
of the constitution and can be never amended or taken away. This judgement has firmly
established the fact that Article 32 forms a part of the basic structure of the constitutuion
6
.


4
(1973) 4 SCC 225
5
L.Chandra Kumar v Union of India.[1997] 3SCC 261
6
Ibid n. 3