WHETHER APPROACHING APEX COURT UNDER ARTICLE 32 SHOULD BE

DISCOURAGED?
3.1 CONSTITUTIONAL LAW - I

SUBMITTED BY-

Naman Dadhich
UID UG19-119
B.A.LL.B.(Hons.) Academic Year: 2020-21
Semester: IV

SUBMITTED TO-

Dr. Vijay Pratap Tiwari

Associate Professor of Law

JUNE 2021
MAHARASHTRA NATIONAL LAW UNIVERSITY,
NAGPUR
TABLE OF CONTENTS

INTRODUCTION..................................................................................................................I

AIM AND OBJECTIVES......................................................................................................II

RESEARCH METHODOLOGY..........................................................................................III

SCOPE..................................................................................................................................IV

DISCOURAGEMENT OF ARTICLE 32.............................................................................V

CONCLUSION...................................................................................................................VI
INTRODUCTION

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court
to seek justice when they feel that their right has been ‘unduly deprived’. The apex court is
given the authority to issue directions or orders for the execution of any of the rights bestowed
by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights’
Under Article 32, the parliament can also entrust any other court to exercise the power of the
Supreme Court, provided that it is within its Jurisdiction. And unless there is some
Constitutional amendment, the rights guaranteed by this Article cannot be suspended. Therefore,
we can say that an assured right is guaranteed to individuals for enforcement of fundamental
rights by this article as the law provides the right to an individual to directly approach the
Supreme Court without following a lengthier process of moving to the lower courts first as the
main purpose of Writ Jurisdiction under Article 32 is the enforcement of Fundamental Rights.

Dr Ambedkar once stated that “If I was asked to name any particular article in this Constitution
as the most important- an article without which this Constitution would be a nullity— I could
not refer to any other article except this one. It is the very soul of the Constitution and the very
heart of it and I am glad that the House has realized its importance.”

Recently some observations by a bench of the Supreme Court headed by the Chief Justice of
India while hearing a habeas corpus writ petition under Article 32 of the Constitution that the
court is trying to discourage Article 32 Petitions. This gesture has understandably received
coverage critical of the judicial attitude of the court.
AIM AND OBJECTIVE

The aim of the researcher is to critically analyze the statement that whether directly
approaching apex court under Article 32 should be discouraged and also to give brief
conclusion of the concepts which will be useful for law students, law scholars etc.

RESEARCH METHODOLOGY

Now, coming to the types of sources involved in research methodology. As the research work
is only limited to the understanding Article 32 of Constitution of India so, researcher in his
research work has opted the doctrinal methodology of research.

SCOPE

Though the researcher has tried hard to not leave any area of the concept uncovered and any
concept unclear in doing his research work, but the topic of Article 32 of Constitution of India
is widely used by researcher and law scholars and widely acclaimed classic and is an ocean of
knowledge regarding laws related to sale and delivery of goods. So, it cannot be confined to a
prescribed limit and so the research work has sought with some of the unavoidable limitations.
Discouragement of Article 32 of Constitution of India

The Chief Justice of India recently expresses his opinion to discourage petitions under Article
32, because of some weighty reasons. For Article 32, which B.R. Ambedkar felt was the
Constitution’s ‘soul’ and ‘heart’, allows citizens to approach the Supreme Court with appropriate
proceedings in order to have enforced the fundamental rights enshrined in the Constitution.

The court's observations apparently come from passage in Union of India v. Paul Manickam1,
that is often relied on by the State to defeat Article 32 habeas corpus petitions that are preferred
in the first instance without going first to the High Court.
The Para 22 in the judgment authored by Justice Arijit Pasayat, as part of a bench of two judges,
states that

Another aspect which has been highlighted is that many unscrupulous petitioners are
approaching this Court under Article 32 of the Constitution challenging the order of detention
directly without first approaching the High Courts concerned. It is appropriate that the High
Court concerned under whose jurisdiction the order of detention has been passed by the State
Government or Union Territory should be approached first. In order to invoke the jurisdiction
under Article 32 of the Constitution to approach this Court directly, it has to be shown by the
petitioner as to why the High Court has not been approached, could not be approached or it is
futile to approach the High Court. Unless satisfactory reasons are indicated in this regard, filing
of petition in such matters directly under Article 32 of the Constitution is to be discouraged.”
On the face of it then, the court is just following a precedent and the law laid down in an earlier
case. However, on a closer examination, it becomes clear why this passage in Paul
Manickam ought to not have any value as a precedent at all, notwithstanding it being part of a
pronouncement of the highest court of the land.

1
(2003) 8 SCC 342
First, the Paul Manickam decision arose in the contest of a Special Leave Petition filed under
Article 136 challenging a judgment of the High Court under Article 226 quashing a preventive
detention order. The scope and ambit of the right under Article 32 to challenge detention orders
and to seek a habeas corpus writ was not in issue at all. It is settled law that only the ratio
decidendi of the court is a precedent and observations that have no nexus with the issue that is
being decided in a case have no precedential value.
Second, the Court in Paul Manickam neither considered nor distinguished prior constitution
bench judgments that have expressly held that Article 32 is the right and prerogative of the
petitioner and that the petitions cannot be dismissed merely because the petitioner did not
approach the High Court first.

The unambgious decision of Justice Das writing for himself and three others as part of five-judge
bench in K.K. Kochunni v. State of Madras2  considered the issue and in Para 8 had this to
observe.

“Shri Purshottam Tricumdas appearing for some of the respondents has taken a preliminary
objection as to the maintainability of the petitions. The argument in support of his objection has
been developed and elaborated by him in several ways. In the first place, he contends that the
petitions, insofar as they pray for the issue of a writ of mandamus, are not maintainable because
the petitioners have an adequate remedy in that they can agitate the question now sought to be
raised on these petitions and get relief in the pauper suit filed by one of the respondents after the
passing of the impugned Act.”

This argument overlooks the fact that the present petitions are under Article 32 of the
Constitution which is itself a guaranteed right.
In Rashid Ahmed v. Municipal Board, Kairana3 this Court repelled the submission of the
Advocate-General of Uttar Pradesh to the effect that, as the petitioner had an adequate legal
2
1959 SCR 316
3
[1950 SCR 566.]
remedy by way of appeal, this Court should not grant any writ in the nature of the prerogative
writ of mandamus or certiorari and observed:
“There can be no question that the existence of an adequate legal remedy is a thing to be taken
into consideration in the matter of granting writs, but the powers given to this Court under
Article 32 are much wider and are not confined to issuing prerogative writs only.”

Further, even if the existence of other adequate legal remedy may be taken into consideration by
the High Court in deciding whether it should issue any of the prerogative writs on an application
under Article 226 of the Constitution, as to which we say nothing now, this Court cannot, on a
similar ground, decline to entertain a petition under Article 32, for the right to move this Court
by appropriate proceedings for the enforcement of the rights conferred by Part III of the
Constitution is itself a guaranteed right.

It has accordingly been held by this Court in Romesh Thappar v. State of Madras4 that under the
Constitution this Court is constituted the protector and guarantor of fundamental rights and it
cannot, consistently with the responsibility so laid upon it, refuse to entertain applications
seeking the protection of this Court against infringement of such rights, although such
applications are made to this Court in the first instance without resort to a High Court having
concurrent jurisdiction in the matter. The mere existence of an adequate alternative legal remedy
cannot per se be a good and sufficient ground for throwing out a petition under Article 32, if the
existence of a fundamental right and a breach, actual or threatened, of such right is alleged and is
prima facie established on the petition.”

The extended context given in the earlier quote is to labour the point that the issue of the Court's
powers to throw out Article 32 petitions on the ground that the petitioner has not approached the
high court first or has not tendered adequate explanation for not approaching the high court first
actually arose in Kochunni and the decision . The matter however does not end there.
There is perhaps one argument that could be made – that is, Paul Manickam was specific in the
context of habeas corpus writs which are distinct from other Article 32 petitions – to the extent
that a second habeas corpus petition to the Supreme Court under Article 32 can be preferred even

4
1950 SCR 594
if a 226 writ is denied. (In fact, habeas corpus petitions are considered a species of their own
(see Dharyao v State of U.P5). This is unlike other kinds of writs wherein once 226 jurisdiction
of the high court is invoked, an article 32 petition ceases to be maintainable, being hit by the
doctrine of res judicata. The distinction becomes germane because 32 and 226 are mutually
exclusive for a person in other types of writs, and there is no such problem with a habeas
corpus writ and therefore there is no real denial of Article 32 remedy even if the petitioner is
directed first to approach the High Court under Article 226. However, for such distinction to be
proper in law, it has to come through a judicial pronouncement that clearly distinguishes,
clarifies or overrules the previous constitution bench judgments by larger bench or atleast of a
bench that is coordinate strength – in a matter that this question actually arises.

Moreover, the rationale behind non-applicability of res judicata to habeas corpus petitions is the
consideration of paramountcy of personal liberty as a protected constitutional right and the role
of the court as its protector (Ghulam Sarwar v Union Of India AIR6). That being the case, it is
not immediately apparent why that distinction that was made to more effectively protect personal
liberty ought to be understood to serve as a distinction to defeat the interests in the case of
dealing with an Article 32 Petition for habeas corpus preferred in the first instance.

The third argument that can perhaps be advanced is a favourite of the State in not
just habeas corpus cases, but many other Article 32 petitions. That is, the consideration of the
court's docket and the workload of the Supreme Court and it being a good policy to have persons
approach the High Court first so that flood gates of litigation in Supreme Court don't open.
Apart from this argument having no independent standing in light of Article 32 being a
fundamental right in itself and the Supreme Court's own holding of its lack of discretion to
entertain or refuse Article 32 petitions so long as there is a fundamental right asserted and
infringement claimed in the petition, it also suffers on another count. The writ docket in the
supreme court is a miniscule fraction of its workload.

In 2019 for instance, only 1947 Writ Petitions were registered in the Supreme Court, as against
more than 42000 Special Leave Petitions under Article 136. This is despite the remedy under
5
AIR 1961 SC 1457
6
1967 SC 1335, 5-Judge bench, Subbarao CJ
Article 136 being a discretionary one and the remedy under Article 32, a matter of right. The
Court's humongous workload in its discretionary jurisdiction cannot rationally be used to defeat
its duty to entertain petitions under Article 32. Moreover, it is in fact the State's own failure that
it has not created more courts to supplement the Supreme Court in exercising Article 32
jurisdiction, which it is empowered to do under Clause (3) of that article – something that the
courts ought not to allow the State to take advantage of.

This leads us to another syndrome that has afflicted not just our court, but also those that
comment on the court. That is the clamour to rush to brand writ petitions – particularly public
interest litigation as frivolous or unworthy of the supreme court's time and indeed exhorting the
court to dismiss such petitions with costs : missing totally the prerogative and the right of every
citizen under Article 32 to bring claims to the Supreme Court. The social cost
of guaranteeing such a remedy is necessarily that there will from time to time be causes that are
objectively and truly unworthy of the Supreme Court's time.

But the answer to that cannot be making Article 32 a discretionary remedy akin to Article 136
where the court can on a whim decide whether or not the complained of cause is worthy of its
time and attention.
Some of the court's recent orders imposing costs on a petition that sought to protect artifacts
found during the Ayodhya excavation, or the refusal to entertain the petition that sought a
declaration epidemic act as unconstitutional and asking the Petitioner to approach the high court
first are clearly not in keeping with the letter and the purpose of Article 32 being a guaranteed
right.
CONCLUSION

If everyone went to the Supreme Court under Article 32 in this season of continuing arrests, the
court would be hard pressed for time to hear other cases. Yet it is also true that in high courts
hearings are delayed because of piles of waiting cases. When the issue is of a violation of the
right to personal liberty, the importance of which the Supreme Court reiterated recently, delay
makes the petition meaningless. That the Supreme Court has found a spate of Article 32 petitions
lately is, perhaps, a sign of the times. It would be reassuring to know that the Supreme Court, the
supreme guarantor of fundamental rights, would consider each case in order to decide which
needs to be heard directly, and that not all Article 32 petitions would be discouraged. The right
under that Article cannot be suspended unless there is an Emergency or “except as otherwise
provided for” by the Constitution. Neither has happened yet.

If Article 32 were to be realised as a guaranteed right, the court ought to ordinarily not dismiss
such petitions in limine and whenever it does, it must do so with a speaking order showing how
the petition discloses no cause of action – i.e. it does not claim a fundamental right being
engaged or that it does not claim of an infringement of that right.