Article 32

RIGHT TO CONSTITUTIONAL REMEDIES

Many of the principles relating to judicial review which are common to Art. 32 and Art. 226 will be
found in the Page 131 text dealing with judicial review, and as such, may be read together. A right
without a remedy does not have much substance. The Fundamental Rights guaranteed by the
Constitution would have been worth nothing had the Constitution not provided an effective
mechanism for their enforcement.

According to Art. 13, Fundamental Rights are enforceable and any law inconsistent with a
Fundamental Right is void.1 Art. 13 is the key provision as it makes Fundamental Rights justiciable.
Art. 13 confers a power and imposes a duty and an obligation on the courts to declare a law void if it
is inconsistent with a Fundamental Right. This is a power of great consequence for the courts. The
Supreme Court has figuratively characterised this role of the judiciary as that of a "sentinel on the
qui vive". Art. 32 confers power on the Supreme Court to enforce the Fundamental Rights. The High
Courts also have a parallel power under Art. 226 to enforce the Fundamental Rights.

Article 32(1) guarantees the right to move the Supreme Court, by appropriate proceedings, for the
enforcement of the Fundamental Rights enumerated in the Constitution.

Art. 32(2) empowers the Supreme Court to issue appropriate orders or directions, or writs including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari,
whichever may be appropriate, for the enforcement of the petitioner's Fundamental Rights.

Article 32(3) empowers Parliament by law to empower any other Court to exercise within the limits
of its territorial jurisdiction all or any of the powers exercisable by the Supreme Court under Art.
32(2). This can however be done without prejudice to the Supreme Court's powers under Arts. 32(1)
and (2).

According to Art. 32(4), the right guaranteed by Art. 32 "shall not be suspended except as otherwise
provided for by the Constitution."

As discussed later in this Chapter, Art. 359 provides, during an emergency, for the suspension of the
right to move any Court for the enforcement of the Fundamental Rights by a presidential order.
Right of access to the Supreme Court under Art. 32 is a Fundamental Right itself.

Art. 32(1) provides a very important safeguard for the protection of the Fundamental Rights of the
citizens of India. Article 32 provides a guaranteed, quick and summary remedy for enforcing the
Fundamental Rights because a person can go straight to the Supreme Court without having to
undergo the dilatory process of proceeding from the lower to the higher Court as he has to do in
other ordinary litigation. The Supreme Court has thus been constituted into the protector and
guarantor of the Fundamental Rights.

Under Article 32, the Supreme Court enjoys a broad discretion in the matter of framing the writs to
suit the exigencies of the particular case and it would not throw out the application of the petitioner
simply on the ground that the proper writ or direction has not been prayed for. The Court's power is
not confined to issuing writs only: it can make any order including even a declaratory order, or give
any direction, as may appear to it to be necessary to give proper relief to the petitioner.10
Underlining the significance of Art. 32, the Supreme Court has characterised the jurisdiction
conferred on it by Art. 32 as "an important and integral part of the basic structure of the
Constitution" because it is meaningless to confer Fundamental Rights without providing an effective
remedy for their enforcement, if and when they are violated. "A right without a remedy is a legal
conundrum of a most grotesque kind."

Art. 32 confers one of the 'highly cherished rights.' The purpose for which Art. 32 can be invoked is
to enforce Fundamental Rights. Violation of a Fundamental Right is sine qua non of the exercise of
the right conferred by Art. 32.

Through its many decision concerning Fundamental Rights under Art. 32, the Supreme Court has
given new dimensions, meaning and purpose to many Fundamental Rights, e.g., right to life. The
Supreme Court has raised many Directive Principles of State Policy from being mere platitudes to
the high status of Fundamental Rights.

(b) ART. 32 ENFORCES FUNDAMENTAL RIGHTS As stated above, Art. 32 can be invoked only
when there is an infringement of a Fundamental Right. The Supreme Court has laid emphasis on
this aspect of Art. 32 as follows: "It is well-settled that, the jurisdiction conferred on the Supreme
Court under Art. 32 is an important and integral part of the Indian Constitution but violation of a
Fundamental Right is the sine qua non for seeking enforcement of those rights by the Supreme
Court. In order to establish the violation of a Fundamental Right, the Court has to consider the
direct and inevitable consequences of the action which is sought to be remedied or the guarantee of
which is sought to be enforced." In order to enforce a Fundamental Right, judicial review of
administrative, legislative and governmental action or non-action is permissible. But, Art. 32 cannot
be invoked simply to adjudge the validity of any legislation or an administrative action unless it
adversely affects petitioner's Fundamental Rights.

The Supreme Courtunder Art. 32(1) can, while considering a petition for the enforcement of a
Fundamental Right, declare an Act to be ultra vires, or beyond the competence of the enacting
legislature, if it adversely affects a Fundamental Right. Where an enactment, as soon as it comes into
force, affects the Fundamental Rights of a person by its very terms, and without any further overt act
being done, the person prejudicially affected is entitled immediately to invoke Art. 32, and get a
declaration as to the invalidity of the impugned Act.

Under Art. 32, the Court confines itself to the question of infringement of the Fundamental Rights
and does not go into any other question. Thus, a petition against an illegal collection of tax is not
maintainable under Article 32, for, the protection against imposition and collection of taxes except
by authority of law comes from Art. 265 which is not a Fundamental Right. But if a tax levied
without legal authority infringes a Fundamental Right, the remedy under Article 32 would be
available.

In Tata Iron and Steel Co. v. S.R. Sarkar,(1961), the company had paid tax under the Central Sales
Tax Act to the State of Bihar, but the State of West Bengal also sought to levy a tax under the same
Act on the same turnover. The Supreme Courtentertained a petition under Article 32. Under the Act,
there was a single liability to pay tax on inter-State sales. The company having paid the tax to Bihar,
threat by Bengal to recover the tax in respect of the same sales infringed the Fundamental Right
under Article 19(1)(g).
(c) ALTERNATIVE REMEDY Article 32 is in itself a Fundamental Right and, therefore, the existence
of an alternative remedy is no bar to the Supreme Court entertaining a petition under Article 32 for
the enforcement of a Fundamental Right. When once the Court is satisfied that the petitioner's
Fundamental Right has been infringed, it is not only its right but also its duty to afford relief to the
petitioner, and he need not establish either that he has no other adequate remedy, or that he has
exhausted all remedies provided by law, but has not obtained proper redress. When the petitioner
establishes infringement of his Fundamental Right, the Court has no discretion but to issue an
appropriate writ in his favour. (Bhaskar Lal Sharma v Monica, 2014)

On 6th November 2020, while issuing notice to the Secretary of the Maharashtra Legislative
Assembly for sending a letter to Mr. Arnab M. Goswami, the editor-in-chief of Republic TV,
allegedly intimidating him for approaching the Court against the privilege notice issued by the
Assembly, a bench headed by Hon’ble the CJI remarked

“… No authority in the country can penalise somebody for coming to the court! What is Article 32
for! How dare this officer say all this! This is in the teeth of Article 32! 32 itself is a Fundamental
Right! I've never seen an attitude like this.”

On November 17th, a bench headed by Chief Justice S.A. Bobde observing that there has been a
spate of petitions under Article 32 recently, the CJI remarked ‘We are trying to cut down the Article
32 jurisdiction. We do not appreciate this’. The Court has been encouraging the parties to first
approach the concerned High Court.

In the Fertilizer Corporation case [AIR 1981 SC 344] & Lokesh Katara v High Court of Gujarat
[(2017) 2 SCC 427] it was held that Article 32 confers one of the ‘highly cherished rights’, and that
the right of access to the Supreme Court under Article 32 is a Fundamental Right itself.

In Romesh Thappar v State of Madras [AIR 1950 SC 124], the Court emphasised that “this Court is
thus constituted the protector and guarantor of the Fundamental Rights, and it cannot consistently
with the responsibility so laid upon it, refuse to entertain applications seeking protection against
infringement of such rights.”

The Supreme Court has described the significance of Article 32 in the following words in Prem
Chand Garg v Excise Commissioner, UP [AIR 1963 SC 996] (Per Gajendragadkar J.):

“The Fundamental Right to move this Court can therefore be appropriately described as the
cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this
Court should regard itself ‘as the protector and guarantor of Fundamental Rights’… In discharging
the duties assigned to it, this Court has to play the role of a ‘sentinel on the qui vive’ and it must
always regard it as its solemn duty to protect the said Fundamental Rights ‘zealously and vigilantly’.”

Article 32 is in itself a Fundamental Right and, therefore, the existence of an alternative

remedy is no bar to the Supreme Court entertaining a petition under Article 32 for the
enforcement of a Fundamental Right.

In Daryo v State of Uttar Pradesh [AIR 1961 SC 1457] it was held that, when once the Court is
satisfied that the petitioner’s Fundamental Right has been infringed, it is not only its right but also
its duty to afford relief to the petitioner, and he need not establish either that he has no other
adequate remedy, or that he has exhausted all remedies provided by law, but has not obtained
proper redress.

When a petitioner establishes infringement of his Fundamental Right, the Court has no discretion
but to issue an appropriate writ in his favour.

However, in Kanubhai Brahmbhatt v State of Gujarat [AIR 1987 SC 1159] a division bench of the
Supreme Court observed that a petitioner complaining of infraction of his Fundamental Right
should approach the High Court first rather than the Supreme Court in the first instance, the reason
for such an observation as given was that there was a huge backlog of cases pending before the
Supreme Court.
Something similar appears to be happening today, owing to increased backlogs, the Court seems to
be disinclined to entertain Article 32 petitions, and sending the petitioners first before the High
Courts.

If such a decision, order or judgment is considered on its merits, it shall only defeat the purpose of
having Article 32 in the first place.

Parties first approaching the High Courts for remedy and only thereafter approaching the Supreme
Court for remedy shall create a situation where the apex Court would have to exercise its appellate
jurisdiction and not the original writ jurisdiction because of the principle of res judicata, this in all
probability will cause more delay and increase in cost of redressal, and shall also go against the
Court’s position as the sentinel on the qui vive as held and affirmed in several other judgments.

This could never have been the intention of the framers of the Constitution as is evident from the
statement of the Chairman of the Drafting Committee.

Also, Article 32 can be invoked only for the enforcement of Fundamental Rights, Article 226 can be
invoked not only for the enforcement of Fundamental Rights but for ‘any other purpose’ as well.

Given the wider jurisdiction of High Court under Article 226, it is reasonable to expect petitioners to
approach the High Court having locus other than enforcement of Fundamental Rights. This, in my
opinion, makes the High Courts across the country more vulnerable to increase in backlogs and face
the issue of greater pendency of matters.

As of August, 2019, there are over 3.5 crore cases pending across the Supreme Court, the High Courts,
and the subordinate courts. Of these, subordinate courts account for over 87.3% pendency of cases,
followed by 12.5% pendency before the 24 High Courts. The remaining 0.2% of cases are pending
with the Supreme Court.

Though the Courts in their adjudicating capacity are not subject to exercise of writ jurisdiction for
orders or judgments alleged to be in violation of Fundamental Rights, it is food for thought that
whether discouraging Article 32 petitions and asking the parties to first approach the High Court
under Article 226 is depriving the parties of their Fundamental Right to Constitutional Remedies
and causing an infringement per se?

Assistant Commissioner of State Tax vs. Commercial Steel Limited ; CA 5121/2021

The Supreme Court observed that, when an alternate remedy is available, a writ petition under
Article 226 of the Constitution can be entertained by a High Court only in following exceptional
circumstances:

(i) a breach of fundamental rights;

(ii) a violation of the principles of natural justice;

(iii) an excess of jurisdiction; or

(iv) a challenge to the vires of the statute or delegated legislation.

In this case, the Telangana High Court in the exercise of its writ jurisdiction under Article 226 of the
Constitution set aside the action of the Assistant Commissioner of State Tax in collecting an amount
of Rs 4,16,447 from a proprietary concern towards tax and penalty under the Central Goods and
Services Tax Act 2017 (CGST) and State Goods and Services Tax Act (SGST).

Before the Apex Court, the revenue, contended that the High Court was in error in entertaining the
writ petition under Article 226 of the Constitution, having regard to the statutory alternative remedy
which is available under Section 107 of the CGST Act.

Agreeing with the said submission, the bench noted that the petitioner before the High court had a
statutory remedy under section 107, but instead of availing of the remedy, it instituted a petition
under Article 226.

"The existence of an alternate remedy is not an absolute bar to the maintainability of a

writ petition under Article 226 of the Constitution. But a writ petition can be entertained
in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a
violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a

challenge to the vires of the statute or delegated legislation. ", the bench of Justices DY

Chandrachud, Vikram Nath and Hima Kohli said.

In the present case, the court said that none of the above exceptions was established.

"There was, in fact, no violation of the principles of natural justice since a notice was
served on the person in charge of the conveyance. In this backdrop, it was not
appropriate for the High Court to entertain a writ petition. The assessment of facts
would have to be carried out by the appellate authority. As a matter of fact, the High

Court has while doing this exercise proceeded on the basis of surmises.", the court said

while allowing the appeal.

(d) ART. 32V. ART. 226

No action lies in the Supreme Court under Art. 32 unless there is an infringement of a Fundamental
Right. As the Supreme Court has emphasized: "The violation of a Fundamental Right is the sine qua
non of the exercise of the right conferred by Art. 32." Article 32 differs from Art. 226 in that whereas
Art. 32 can be invoked only for the enforcement of Fundamental Rights, Art. 226 can be invoked not
only for the enforcement of Fundamental Rights but for 'any other purpose' as well. This means that
the Supreme Court's power under Art. 32 is restricted as compared with the power of a High Court
under Art. 226, for, if an administrative action does not affect a Fundamental Right, then it can be
challenged only in the High Court under Art. 226, and not in the Supreme Court under Art. 32.
The words "for any other purpose" found in Art. 226 (but not in Art. 32), enable a High Court to take
cognizance of any matter even if no Fundamental Right is involved. It may, however, be pointed out
that there have been a few exceptional cases where the Supreme Court has entertained writ
petitions under Art. 32 although no question of Fundamental Right was involved. This approach of
the Court is justifiable on the ground that in these cases questions of great constitutional
significance were raised; there was no forum except the Supreme Court where these questions could
be authoritatively decided, and there was no other mechanism, except Art. 32, to bring such matters
within the cognisance of the Supreme Court.
These matters inter alia are: (i) misuse of the ordinance-making power by the State of Bihar; (DC
Wadhwa v. State of Bihar,1987)
(ii) appointment of the Judges of the High Courts and the Supreme Court; ( SC Advocates on Record
v UOI)
(iii) issues related with the procedure to remove a Supreme Court Judge. (Sarojani Ramaswami v
UOI, 1992)
Reference may be made here to Tamil Nadu Couvery NVV NU P Sangam v. Union of India. The
society moved a writ petition under Art. 32 in the Supreme Court for a direction to the Government
of India to refer the cauvery water dispute to a tribunal. The petition remained pending in the Court
for more than seven years. An objection was raised against the maintainability of the petition.
Rejecting the objection, the Court ruled that to throw out the petition after seven years by accepting
the objection against its maintainability "would be ignoring the actual state of affairs, would be too
technical an approach and in our view would be wholly unfair and unjust."
(e) INTER-RELATIONSHIP BETWEEN ARTICLES 32 AND 226
In the matter of enforcement of Fundamental Rights, the High Courts under Art. 226, and the
Supreme Court under Art. 32, enjoy concurrent jurisdiction. A question has been raised whether a
petitioner seeking to enforce his Fundamental Rights can go straight to the Supreme Court under
Art. 32, or should he first go to a High Court under Art. 226.
As early as 1950, in Romesh Thappar, the Supreme Court ruled that such a petitioner can come
straight to the Supreme Court without going to the High Court first. The Court stated that unlike
Art. 226, Art. 32 confers a Fundamental Right on the individual and imposes an obligation on the
Supreme Court which it must discharge when a person complains of infringement of a Fundamental
Right. Art. 32 provides a guaranteed remedy for the enforcement of the Fundamental Rights and
constitutes the Supreme Court as the "guarantor and protector of Fundamental Rights." This
proposition has been reiterated by the Supreme Court in a number of cases.
This continued to be the position till 1987 when a two-Judge Bench of the Supreme Court ruled in
Kanubhai Brahmbhatt v State of Gujarat, that a petitioner complaining of infraction of his
Fundamental Right should approach the High Court first rather than the Supreme Court in the first
instance. the reason given for this view was that there was a huge backlog of cases pending before
the Supreme Court. Since it is the view expressed by a two Judge Bench, it can not be regarded as an
authoritative pronouncement on an important constitutional issue, viz., inter relationship between
Arts. 32 and 226.
Such a vital pronouncement could be made only by the Constitution Bench consisting at least of five
Judges, especially, when the long established position is sought to be overturned. The ruling in
Kanubhai seeks to negate what the Supreme Court has itself said in a number of cases during the
last four decades emphasizing upon the significance of Art. 32, and the role assigned to it thereunder.
Even otherwise, on merits, this view will make Art. 32 redundant for after having gone to the High
Court first under Art. 226, the petitioner would then come to the Supreme Court by way of appeal
and not under Art. 32, because of the principle of res judicata, discussed below. When a litigant
approaches the Supreme Court, the matter is decided by the Court finally. But if he approaches the
High Court, the petition is first decided by a single judge, an appeal then lies to the division bench,
and, thereafter, an appeal may be taken to the Supreme Court. In fact, this may cause more delay
and prove costlier to the petitioner than a writ petition directly under Art. 32. In effect, the
Kanubhai ruling devalues the significance not only of the Fundamental Rights but of the Supreme
Court itself. This could never have been the intention of the framers of the Constitution. In practice,
it seems that the Kanubhai pronouncement has had no effect on the existing practice and the writ
petitions continue to be filed in the Supreme Court under Art. 32 without first going to the High
Court under Art. 226. Reference may also be made in this connection to the principle of Res Judicata
discussed below.
(f) BROAD CANVAS OF ART. 32
Article 32 being a Fundamental Right itself, it cannot be diluted or whittled down by any law. Art. 32
can be invoked even when a law declares a particular administrative action as final. The powers of
the Supreme Court under Art. 32 are plenary and are not fettered by any legal constraints. If in
exercise of these powers, the Court commits a mistake, the Court has plenary power to correct the
mistake.41 That Art. 32 bestows the Supreme Court with great powers is illustrated by the following
case. In Khatri v. State of Bihar, several petitioners filed writ petitions under Art. 32 for enforcement
of their Fundamental Right under Art. 21 on the allegation that they were blinded by the police
while they were in its custody. The question arose whether the Court could order production of
certain reports submitted by the CID to the State Government and some correspondence between
the Government and certain officials. The Government claimed that this material was protected by
Ss. 162 and 172 of the Cr.P.C. Rejecting the contention, the Court said that the proceedings under Art.
32 are neither an 'inquiry' nor a 'trial' for an offence. Neither the Supreme Court is a criminal Court
while hearing a writ petition nor are the petitioners accused persons and so these sections of the
Cr.P.C. are not applicable to the Court's writ jurisdiction under Art. 32.
(g) PROCEDURE UNDER ART. 32
In Bandhua Mukti Morcha, the Apex Court has clarified that procedurally, under Art. 32, it is not
bound to follow the ordinary adversary procedure and may adopt such procedure as may be
effective for the enforcement of the Fundamental Rights. When a writ petition was moved on behalf
of some workmen that they were being held in bondage, the Court appointed two persons as
commissioners to make report on the petitioners' condition. It was argued that their report had no
evidentiary value since what was stated therein was based only on ex parte evidence which had not
been tested by cross-examination. The Court held the argument not well-founded and rejected it, as
it was based upon a total misconception of the true nature of a proceeding under Art. 32. Article 32(1)
does not say by what proceedings the Supreme Court may be moved for the enforcement of the
Fundamental Rights.
The only limitation is that the proceedings must be 'appropriate' for the enforcement of a
Fundamental Right. "The Constitution-makers deliberately did not lay down any particular form of
proceeding for enforcement of a Fundamental Right nor did they stipulate that such proceeding
should conform to any rigid pattern or straight jacket formula," the reason being that they realised
that the people were poor and illiterate and insistence on any rigid formula would be self-defeating.
Article 32(2) confers power on the Court in its widest terms. "It is not confined to issuing the high
prerogative writs", but "it is much wider and includes within its matrix power to issue any directions,
orders or writs which may be appropriate for enforcement of the Fundamental Right in question".
The Constitution is silent as to the procedure to be followed by the Court in exercising its power
under Art. 32(2) because the Constitution-makers were anxious not to allow any procedural
technicalities to stand in the way of enforcement of Fundamental Rights and they never intended to
fetter the Court's discretion to evolve a procedure appropriate in the circumstances of a given case
to enable it to exercise its power to enforce a Fundamental Right. Whatever procedure is necessary
to fulfil that purpose is permissible to the Court. It is not at all obligatory for the Court to follow
adversarial procedure. No such restriction ought to be imposed on the Court. In such a system a
poor person is always at a disadvantage against a rich person. When the poor come to the Court for
enforcement of their Fundamental Rights, it is necessary to depart from the adversarial procedure
and evolve a new procedure so as to enable such people to bring the necessary material before the
Court so as to secure enforcement of their rights.
In the words of Bhagwati, J.: "We have therefore to abandon the laissez faire approach in the judicial
process particularly where it involves a question of enforcement of Fundamental Rights and forge
new tools, devise new methods and adopt new strategies for purpose of making Fundamental Rights
meaningful for the large masses of people. ... If we want the Fundamental Rights to become a living
reality and the Supreme Court to become a real sentinel on the qui vive, we must free ourselves from
the shackles of outdated and outmoded assumptions and bring to bear on the subject fresh outlook
and original unconventional thinking."
Accordingly, the Court has accepted even a letter addressed to the Court as an "appropriate"
proceeding and has taken congnizance of the matter raised therein. The letter need not be in any
particular form.
(h) ART. 32 CANNOT BE RESTRICTED BY LEGISLATION
Article 32 being a Fundamental Right cannot be diluted by any legislation. Section 14 of the
Preventive Detention Act, 1950, prevented the detenu, on pain of prosecution, from disclosing to any
Court the grounds of his detention communicated to him by the detaining authority. The provision
was held unconstitutional as it rendered nugatory the exercise of the Supreme Court's power under
Art. 32 for unless the Court could examine the grounds on which the detention order had been
based, it could not decide whether detenu's Fundamental Right under Arts. 21 and 22 had been
infringed or not.
A similar point was raised in Express Newspapers v. Union of India in another way. The Working
Journalists Act, 1955, constituted a wage board for fixing the rates of wages of working journalists.
The Act was challenged on the ground that it made no provision requiring the wage board to give
reasons for its decision. It was argued that this rendered the petitioner's right to approach the
Supreme Courtfor enforcement of his Fundamental Rights nugatory because, in the absence of
reasons, the Court would not be able to investigate the validity of the order. The Court rejected the
argument saying that the Act would have been invalid had it prohibited the wage board from giving
reasons for its decision, as that would have rendered Art. 32 nugatory. But as there was no such
provision and it was left to the board's discretion to give reasons for its decision or not, Art. 32 was
not infringed in any manner whatsoever. In Prem Chand v. Excise Commr., 51 the Supreme Court
struck down one of its own rules (O. 35, R. 12) which required furnishing of security to move the
Court under Art. 32, as it retarded the assertion or vindication of the Fundamental Right under Art.
32. The rule imposed a financial obligation on the petitioner, and if he did not comply with it, his
petition would fail. The Court also took the position in Prem Chand that furnishing of security
discriminated against the poor sections of the society, and that Art. 32 cannot be encumbered by
rules, which favoured the rich with access to justice. But a rule aiding and facilitating the orderly
presentation of petitions under Art. 32 cannot be regarded as unconstitutional as contravening Art.
32. A rule requiring security for filing a petition for review of an order made earlier by the Court
dismissing an Art. 32 petition is valid as it does not restrict Art. 32 in any way.52 The Supreme Court
has again asserted recently that its power and jurisdiction under Art. 32 cannot be curtailed by any
law. In exercising its power under Art. 32, the Court can direct any body to make any inquiry. All
authorities in the country are bound by the directions of the Court and have to act in aid of the
Court. In Paramjit, 53 the Supreme Courtdirected the National Human Rights Commission to make
an inquiry into a specific matter. Under the Act establishing the Commission, it cannot inquire into
any matter which is more than one year old. But the Supreme Court ruled that the Commission
could inquire into the referred matter even though it was older than one year because the
Commission would be functioning sui generis under the direction issued by the Court under Art. 32
and not under its own constituent statute. By and large the Supreme Court has used its jurisdiction
under Art. 32 in a creative manner. In case after case coming before it under Art. 32, the Court has
given new dimensions, meaning and scope and purpose to many Fundamental Rights, such as, right
to equality, freedom of speech, right to personal liberty and life.54 This point will be appreciated
much more when reference is made to the discussion under 'Public Interest Litigation'.55 (i)RES
JUDICATA The Supreme Court has imposed a significant restriction on the invocation of its
jurisdiction under Art. 32 by applying the doctrine of res judicata. 56 The rule of res judicata is based
on considerations of public policy as it is in the larger interest of the society that a finality should
attach to binding decisions of courts of competent jurisdiction, and that individuals should not be
made to face the same kind of litigation twice. If the doctrine of res judicata were not applied to writ
proceedings, then a party could take one proceeding after another and urge new grounds every time
in respect of one and the same cause of action. This would plainly be inconsistent with
considerations of public policy. Accordingly, a person cannot move successive Page 137 petitions
under Art. 32 for the same cause of action. An order assessing the tax having been challenged once
through a writ petition, it cannot be challenged again through another writ petition even if the
petitioner seeks to urge new grounds against the order.57 When once the Supreme Court has
decided a question between two parties under Art. 32, the same question cannot be reopened
between the same parties under Art. 32.58 The petitioner challenged his detention in a writ petition,
but it was dismissed. Subsequently, after renewal of the detention order, he sought to file another
petition repeating some of the contentions which he had advanced earlier. The Court rejected the
petition as no new grounds had arisen to challenge detention again.59 But res judicata would not
apply if orders sought to be challenged through successive writ petitions are different, as for
example, when a petition challenging the validity of the tax assessment for one year is dismissed by
the Supreme Court, a similar order passed for the subsequent year can be challenged through a new
writ petition on some new grounds not raised earlier in the first writ petition.60 The Supreme Court
has ruled in Lallubhai v. Union of India61 that the doctrine of constructive res judicata is applied
only to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to
illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Art. 32 on
fresh grounds not taken in the earlier petition for the same relief. Thus, when a writ petition
challenging an order of detention is dismissed by the Court, a second petition can be filed on fresh,
additional grounds to challenge the legality of the continued detention of the detenu, and the
subsequent petition is not barred by res judicata. When a writ petition under Art. 226 has been
dismissed by the High Court, another writ petition under Art. 32 cannot be moved in the Supreme
Court, to seek redress in the same matter. The principle of res judicata envisages that if a judgment
has been pronounced by a Court of competent jurisdiction, it is binding between the parties unless
it is reversed or modified in appeal, revision or other procedure prescribed by law. According to the
Supreme Court, the jurisdiction of a High Court in dealing with a writ petition under Art. 226 is
substantially the same as that of the Supreme Court under Art. 32. The scope of the writs under both
the Articles being concurrent, res judicata applies. The High Court's decision can be attacked in an
appeal to the Supreme Court but not through a writ petition.62 In Daryao, 63 the Supreme Court
dismissed a writ petition moved under Art. 32 because earlier the petitioner had moved in the High
Court a writ petition under Art. 226 on the same facts and the High Court had rejected the same. In
Har Swarup, 64 the petitioner filed a writ petition under Art. 226. The High Court dismissed the
petition and also refused leave to appeal to the Supreme Court. Thereafter, he filed a writ petition in
the Supreme Court under Art. 32 claiming exactly the same reliefs as he had claimed in the High
Court and on identical grounds. In the circumstances, the Supreme Court dismissed the writ
petition on the basis of the principle of res judicata. The res judicata principle would, however, apply
only when the High Court has disposed of the writ petition on merits. If the petition has been
dismissed by the High Court not on merits, but on a technical ground, e.g., petitioner's laches, or
that he has an efficacious alternative remedy available to him, or the petition has been dismissed in
limine without passing a speaking order, then res judicata would not apply and the Supreme Court
can entertain a petition under Art. 32, because Art. 32 is a Fundamental Right and the Supreme
Court ordinarily issues a writ if there is a breach of any Fundamental Right.65 The principle of res
judicata has also been applied when a person first goes to the Supreme Court under Art. 32, and on
his application having been rejected there, comes to the High Court under Art. 226.66Res judicata is
not applied to a petition for a writ of habeas corpus. If such a petition is dismissed by the High
Court on merits, a similar petition may be entertained by the Supreme Court under Art. 32.67
Article 32 is not available to assail the correctness of a decision rendered by the Supreme Court on
merits or to claim its reconsideration by the Court.68 The Supreme Court rendered a decision. The
Court also dismissed a review petition seeking a review of the Page 138 decision. Thereafter, a writ
petition was filed under Art. 32 challenging the validity of the Court decision. The Court referred the
question for decision to the Constitution Bench whether a Court decision can be challenged through
a writ petition. The Court has now decided that this cannot be done.69 (j) QUASI-JUDICIAL
BODIES The Supreme Court has diluted the efficacy of Art. 32 as a technique to challenge a decision
by a quasi-judicial body.70 In Ujjam Bai v. State of Uttar Pradesh, 71 the Court has held that an
assessment of sales tax by a quasi-judicial authority, acting within its jurisdiction and under an intra
vires law, could not be challenged under Art. 32 on the ground that it has misconstrued or
misinterpreted the law, because no breach of any Fundamental Right was involved in such a
situation. Such an error can be corrected by way of appeal to the Supreme Court. Article 32 is,
however, available when a Fundamental Right is violated-- (1) by a quasi-judicial authority acting
under an ultra vires law; or (2) when the assessing authority seeks to impose a tax against a
constitutional prohibition;72 or demands to tax not leviable under any valid law; or (3) where the
statute is intra vires but the authority acts under it without jurisdiction, or wrongly assumes
jurisdiction:73 or (4) where the action taken is procedurally ultra vires, for example, when principles
of natural justice are infringed.74 The Government of India, by a statutory order, applied the Sea
Customs and other relevant Acts to Pondicherry, saving "all things done or omitted to be done
before November 1, 1954" from the mischief of the Acts being applied. The petitioner had placed
orders for imports before, but received the consignments after, the said date, and the Customs
Collector seized them and imposed a heavy penalty on him. The petitioner challenged the
Collector's order under Art. 32 alleging infringement of Art. 19(1)(g) on the ground that the Collector
was acting without jurisdiction. Rejecting the petition, the Supreme Court held by a majority that in
seizing the consignments, the Collector was acting within jurisdiction and was discharging a quasi-
judicial function. Although he might either be taking a wrong view of the facts, or misconstruing the
statutory order in question, yet in none of these situations could the Court interfere under Art. 32, in
the latter event because of the ruling in the Ujjambai case.75 In STC v. Mysore, 76 the Ujjambai case
was held inapplicable and an assessment of sales tax on inter-State sale of cement was quashed
under Art. 32. Under the Constitution, a State cannot tax an interstate sale. It was argued that the
taxing officer was acting in a quasi-judicial capacity; he had jurisdiction to decide whether a
particular sale was inter-State or not, and any error committed by him in deciding that question
falling within his jurisdiction would not offend any Fundamental Right as had been held in the
Ujjambai case. The Court, however, held that the taxing officer had no jurisdiction to tax inter-State
sales because of the constitutional prohibition,77 and he could not give himself a jurisdiction to tax
such a sale by deciding a collateral fact wrongly. The Supreme Court has explained in Coffee Board,
78 that a petitioner has a right to move a writ petition under Art. 32 to challenge a quasi-judicial
decision where the action is proposed to be taken under an ultra vires statute, or where the action is
taken without jurisdiction, or without following natural justice. Errors of law or fact committed in
exercise of the jurisdiction under a valid law are not usually corrected through writ petitions under
Art. 32. The proper way to correct them is to proceed under the provisions for appeal, or by way of
writ petitions under Art. 226. If a quasi-judicial authority acts without jurisdiction, or wrongly
assumes jurisdiction by committing an error as to collateral fact and the resultant action threatens
or violates a Fundamental Right, the question of enforcement of that right arises and a petition
under Art. 32 will lie. "If, however, a statute is intra vires but the action taken is without jurisdiction
then a petition under Art. 32 would be competent". A writ petition was moved in the Supreme Court
under Art. 32 on the ground that the licensing authority Page 139 misapplied the Imports and
Exports Control Act. The Court dismissed the same on the ground that a petition under Art. 32 is
not competent to challenge any erroneous decision of an authority. Invoking the authority of
Ujjambai, the Court ruled that a wrong application of the law would not amount to a violation of
Fundamental Rights. If the provisions of the law are valid, and the orders passed are within the
jurisdiction of the authority concerned, there is no infraction of any Fundamental Rights whether
the authority was right or wrong on facts. An erroneous decision does not violate Fundamental
Rights.79 The above-mentioned cases bring out the difficulties of challenging quasi-judicial
decisions on the ground of infringement of Fundamental Rights through Art. 32 petitions. The law
has become rather technical. It is always a difficult question to decide whether an authority is acting
without jurisdiction, or within jurisdiction but taking a wrong view of facts or law. Art. 32 is
available in the first case but not in the second. Similarly, if a quasi-judicial authority acting within
jurisdiction, misinterprets a constitutional provision, rather than an ordinary law, Art. 32 may be
available. On the whole, therefore, it is a hazardous task to challenge a quasi-judicial decision under
Article 32. The effect of this is to encourage people to take recourse to the High Courts under Article
226 which is broader in scope than Article 32. This position, in a way, appears to be anomalous for,
while Article 32 is a guaranteed right, Article 226 is not so. At times, to apply the above propositions,
the Supreme Court may have to go into the question whether the authority whose decision is being
questioned in an Art. 32 petition exercises an 'administrative' or a 'quasi-judicial' function.80 Such a
question arose in Gulam Abbas v. State of Uttar Pradesh . 81The question was: whether an order
passed under S. 144 , Cr.P.C., is a 'judicial' or 'quasi-judicial' order or one passed in the exercise of an
'executive power'? The question arose as such an order was sought to be challenged before the
Supreme Court through an Art. 32 petition. The Court characterised such an order as an executive
order arguing as follows: Under the Criminal Procedure Code, 1973, there is a separation of judicial
functions from the executive functions of the magistrates. By and large, judicial functions have been
allocated to judicial magistrates and executive or administrative functions to the executive
magistrates. S. 144 , Cr.P.C., deals with urgent cases of nuisance and apprehended danger to public
tranquillity and the power underS. 144 has been conferred on an executive magistrate. Therefore, an
order passed under S. 144 cannot be regarded as a judicial or quasi-judicial order. The function
under S. 144 is essentially an executive (police) function. It is true that before passing an order, the
magistrate gives a hearing to the parties except in an emergency when an ex parte order can be
made without notice to the person against whom it is directed; also, an order under S. 144, though
made by an executive magistrate, is revisable by the High Court. But these aspects do not make such
an order quasi-judicial. Hearing merely ensures fairness and fairplay and the observance of the audi
alteram partem rule which is essential to the performance of any executive or administrative
function. Revision of the order by the Court only removes the vice of arbitrariness, if any. The order
under s. 144 is an executive order passed in the performance of an executive function where "no lis
as to any rights between rival parties is adjudicated but merely an order for preserving public peace
is made" and, as such, it is amenable to writ jurisdiction under Art. 32. (k) QUESTIONS OF FACT
The Court has power to decide disputed questions of fact arising in a writ petition if it so desires.
This was very clearly stated by the Court in Kochunni, 82 where the Court observed: "But we do not
countenance the proposition that, on an application under Art. 32, this Court may decline to
entertain the same on the simple ground that it involves the determination of disputed questions of
fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we
would be failing in our duty as the custodian and protector of the Fundamental Rights... Further,
questions of fact can and very often are dealt with on affidavits." This statement was made in 1959.
Since then the attitude of the Court has stiffened on this question and, ordinarily, the Court does
not now go into disputed questions of fact83 in a writ petition. The reason for this judicial stance is
that disputed questions of fact can be decided properly by examining the pleadings raised by the
parties and by taking evidence and such a course is not possible in a summary proceeding like that
of Page 140 a writ petition under Art. 32. The Court has observed in this connection:84 "We must
make it clear that in a petition under Art. 32 of the Constitution, it is not our province to go into
facts." The Court may, however, make an exception in this regard in any specific case.85 (l) LACHES
Laches or inordinate delay on the part of the petitioner may disentitle him to move a writ petition
under Art. 32 to enforce his Fundamental Right.86 The Court refuses relief to the petitioner on the
ground of laches because of several considerations, e.g., it is not desirable to allow stale claims to be
canvassed before the Court; that there should be finality to litigation; that rights which have accrued
to others by reason of the delay in filing the petition should not be disturbed unless there is
reasonable explanation for the delay. The aggrieved party should, therefore, file the petition at the
earliest possible time. In Trilokchand Motichand v. H.B. Munshi, 87 the sales tax officer sought to
collect tax from petitioner Trilokchand. He filed a writ petition in the High Court which failed.
Thereupon, in 1959, he agreed to pay the tax in instalments. In 1967, on some proceedings initiated
by some other party, the Supreme Court struck down the relevant provision in the law as infringing
Art. 19(1)(f) of the Constitution.88 Thereafter, in 1968, Trilokchand moved the Supreme Court under
Art. 32 praying that the order seeking to recover tax from him be quashed as it had been issued
under an unconstitutional statute. The Supreme Courtrejected the petition by a majority on the
ground of laches. Some of the Judges suggested that the Indian Limitation Act may be applied by
analogy to petitions under Art. 32. This meant that a claim based on infraction of a Fundamental
Right ought not to be entertained if made beyond the period fixed by the Limitation Act for the
enforcement of the right by way of a suit. A middle view was expressed by Hidayatullah, C.J. He
denied that the Limitation Act would apply to writ petitions under Art. 32, but still he maintained
that the petitioner should move the Court at the earliest and should explain satisfactorily if there is
delay on his part. There is no fixed period for the purpose and the Court decides each case on its
merits. He gave the reason for rejecting delayed writ petitions as follows: "The action of courts
cannot harm innocent parties if their rights emerge by reason of delay on the part of the person
moving the Court." The Chief Justice therefore opined: "Therefore the question [of delay] is one of
discretion for this Court from case to case. There is no lower limit and there is no upper limit.... It
will all depend on what the breach of the Fundamental Right and the remedy claimed are and how
the delay arose". However, Justice Hegde, dissenting, took an absolutist view on the question of
laches. He asserted that "Laches on the part of an aggrieved party cannot deprive him of the right to
get relief from the Court under Art. 32." He asserted that the Limitation Act has no relevance either
directly or indirectly under Art. 32. The right under Art. 32 itself being a Fundamental Right, it could
not be curtailed or circumscribed except as provided by the Constitution. If the Court regards its
power under Art. 32 as discretionary then Art. 32 would cease to be a Fundamental Right. While
there may be justification for the rule that very stale claims should not be permitted to be agitated
through writ petitions under Art. 32, the rule suggested in the Trilokchandcase that the measure of
delay should be the period of limitation fixed by the Limitation Act for a suit on similar fact-
situation, would have been too rigid and unsupportable. Art. 32 is a Fundamental Right itself and its
efficacy should not be unduly curtailed. The situation was, however, retrieved by the Supreme
Court's decision in R.S. Deodhar v. State of Maharashtra . 89There was a delay of more than 10 years
in filing the writ petition since the accrual of the cause of complaint. The Court rejected the
contention that the petition was delayed. On the rule of laches, the Court observed that this "is not a
rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no
inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the
petition. Each case must depend on its own facts". The period of limitation prescribed in the
Limitation Act should be used as a guide and not as an absolute rule. Further, the Court asserted
that "this Court which has been assigned the role of a sentinel onqui vive for the protection of the
Fundamental Rights Page 141 cannot easily allow itself to be persuaded to refuse relief on the jejune
ground of laches, delay or the like". The above discussion means that the Court will consider each
case on its facts and decide whether or not the petition should be rejected on the ground of laches.
There is no fixed period of limitation applicable to Art. 32 petitions.90 This in a way is acceptance of
the view expressed by Hidayatullah, J., in Trilokchand. The Supreme Court thus applies the rule of
laches in a flexible and not a rigid manner. The Supreme Court may consider a delayed petition if
the petitioner is able to give a reasonable explanation for the delay. In Rabindra Nath v. Union of
India, 91 the Court rejected a writ petition filed to challenge the seniority rule made fifteen years
earlier under Arts. 14 and 16. The Court said in R.S. Makashi v. I.M. Menon, 92 that no relief could be
given to the petitioner who, without any reasonable explanation, approaches this Court under Art.
32 after inordinate delay. "It would be unjust to deprive the respondents of the rights which have
accrued to them." In this case, vested rights were sought to be disrupted after eight years. In
Roshanlal, 1 the Supreme Court rejected a writ petition presented in 1978 challenging certain
appointments made in 1975. The Court thought that it would not be justified in re-opening the
question of the legality of the appointments after several years. In Doval, 2 a provisional seniority list
prepared in March, 1971, was challenged in 1983 through a writ petition filed under Art. 32. Many
promotions had been made during the intervening period. The Supreme Court refused to dismiss on
the ground of laches arguing that the impugned list was merely provisional and that the
Government neither considered nor replied to the many representations made by the petitioners.
Also, the petitioners belonging to the lower echelons of service might have found it difficult to move
the Court earlier. In S.S. Moghe v. Union of India, 3 promotions in government service were
challenged on the ground of infringement of Fundamental Right. No explanation was given for delay
of several years in filing the writ petition. Rejecting the petition, the Court said that a party should
be diligent in enforcing his Fundamental Right and he should approach the Court within a
reasonable time after the cause of action had arisen. If there has been undue delay or laches on his
part, the Court has discretion to deny him relief. A writ petition filed in 1973 sought to set aside a
number of promotions and confirmations which had taken place long before the filing of the
petition. The Court dismissed the petition on the ground that "the equitable rights of a number of
other government servants had come into existence by the laches and acquiescence of the
petitioners."4 When the writ jurisdiction was invoked within two months of the impugned
admission to an institute, the Court held the time-gap to be reasonable.5 In the case mentioned
below,6 the Supreme Court allowed a writ petition in 1973 directing the government to implement
the report of the Pay Commission presented in 1959 in respect of the petitioners. (m) AGAINST
WHOM A WRIT CAN BE ISSUED? By and large Fundamental Rights are enforceable against the
state. The term 'state' has been defined in Art. 12 which has already been discussed earlier.7 There
are a few Fundamental Rights, such as, under Arts. 17, 21 23 or 248 which are also available against
private persons. In case of violation of any such right, the Court can make appropriate orders against
violation of such rights by private persons.9 (n) WHO CAN APPLY? Article 32 does not prescribe the
persons or classes of persons who can invoke the Supreme Court's jurisdiction for the redressal of
their grievances. The matter of 'standing' thus lies within the realm of the Page 142 Supreme Court.
The general principle is that a person whose Fundamental Right has been infringed has locus standi
to move the Supreme Court under Art. 32 for the enforcement of his right.10 A person whose
Fundamental Right is affected has standing to file a petition under Art. 32. The legal right to be
enforced under Art. 32 must ordinarily be the right of the petitioner himself. As rights are different
and inhere in different legal entities, it is not competent to a person to seek to enforce the rights of
another except when the law permits him to do so.11 This principle emanates from the theory that
the remedies and rights are correlative and, therefore, only a person whose own right is in jeopardy
is entitled to seek a remedy. Since a corporation has a distinct legal personality of its own, with
rights and duties separate from those of its individual members, a shareholder cannot complain
against a law which affects the Fundamental Right of the corporation except to the extent that it
infringes his own Fundamental Right as well.12 A well-known exception to this principle, however, is
a petition for a writ of habeas corpus which can be made not only by the person who is imprisoned
or detained but by any person, provided he is not a complete stranger, for liberating a person from
an illegal imprisonment.13 The rule of standing is also relaxed in case of a petition for quo warranto.
14 The principle applicable to civil suits that all parties interested in the subject-matter of the suit
should be made parties, is not applicable to the petitions under Art. 32. If a petitioner has a right to
maintain the petition, his petition would not be thrown out and relief refused to him by way of
enforcing his Fundamental Right merely because he has not made another person, having equal
right with him to maintain the petition, a party thereto.15 Over a period of time, the Supreme Court
has been taking a liberal view of locus standi. Art. 32 confers a good deal of freedom on the Supreme
Court to evolve its own rules of locus standi. The Court realises that if a narrow view of locus standi
is taken, and if the categories of persons who can challenge governmental action are confined within
narrow limits, then the danger is that many governmental actions may go unchallenged as there
may be none entitled to challenge such action. The movement towards broader standing to invoke
judicial review is justified by the argument that the great expansion in the power of the bureaucracy
has increased the need for judicial supervision which involves lowering of barriers in the way of
invoking judicial review.16 Thus, in A.B.S.K. Sangh (Rly.) v. Union of India, 17 the Supreme Court
overruled the objection that an unrecognised association cannot file a petition under Art. 32.
Whether the petitioners belong to a recognised union or not, the fact remains that a large body of
persons with a common grievance exist and they have approached the Supreme Court under Art. 32.
The following observation by the Court is worth noting.18 "Our current processual jurisprudence is
not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions
access to justice through 'class actions', 'public interest litigation', and 'representative proceedings'.
Indeed, little Indians in large numbers seeking remedies in Courts through collective proceedings,
instead of being driven to an expensive plurality of litigations, is an affirmation of participative
justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of
action' and 'person aggrieved' and individual litigation is becoming obsolescent in some
jurisdictions." The Fertilizer Corporation, a government company, proposed to sell some old
machinery. The labour union filed a petition under Art. 32 in the Supreme Court challenging the
sale. The Court conceded legal standing to the union to file the petition. A worker clearly has
interest in the industry and so he will have standing to challenge any wrong doing by the
Management. Chandrachud, C.J., emphasized that in appropriate cases, it might become necessary
to take a broader view of the question of locus standi to initiate proceeding. "If public property is
dissipated, it would require a strong argument to convince the Court that ... a section of the public
which is directly interested and affected would have no right to complain of the infraction of public
duties and obligations". Page 143 Krishna Iyer, J., in a separate opinion explicitly advocated
liberalisation of the locus standi to meet the challenge of times. If a plaintiff with a good case is
turned away merely because he is not sufficiently affected personally, that means that some
government agency is left free to violate the law, and this is contrary to public interest. While the
union had locus standi to file the petition, in the ultimate analysis the petition was dismissed on
merits on two grounds: (1) the decision of the corporation to sell the old machinery could not be
legally faulted; (2) no question of breach of Fundamental Rights of the workers arose to justify a
petition under Art. 32.19 Reference may also be made in this connection to Public Interest Litigation
which is discussed later in this book.20 In the present context, the Supreme Court takes a liberal
view of locus standi to file a writ petition under Art. 32. The concept of locus standi has been very
much expanded and the Supreme Court has come to adopt a flexible view on the question of a
person's entitlement to file a writ petition to challenge an executive order as ultra vires. This is
supported by Jayaraj21 where the Supreme Court proceeded to consider the question on its merits
whether an order made by the Excise Commissioner was legal or not without going into the
question whether the petitioner challenging the order had locus standi to do so or not with the
remark that if the impuged order was in violation of law "we do not wish to nip the motion out
solely on the ground of locus standi". If the executive had no authority to pass the order impugned,
"it would be improper to allow such an order to remain alive and operative on the sole ground that
the person who filed the writ petition has strictly no locus standi". It is not necessary that the victim
of the violation of the Fundamental Rights should personally approach the Court for redress as the
Court can itself take cognisance of the matter and proceed suo motu, or on a petition filed by any
public spirited individual.22 (o) RELIEF UNDER ART. 32 The phraseology of Art. 32(2) is very broad.
Thereunder the Supreme Court is authorized to issue orders, directions, or writs, "including" writs,
"in the nature of" mandamus, certiorari, prohibition, quo warranto and habeas corpus. 23 A few
comments may be made on this provision. Under Art. 32, the Supreme Court may issue not only the
specified writs but also make any order, or given any directions as it may consider appropriate in the
circumstance of the case, to give proper relief to the petitioner. The Court can grant declaration or
injunction as well if that be the proper relief.24 The Court can mould relief to meet the exigencies of
the specific circumstances.25 What is the appropriate remedy to be given to the petitioner for the
enforcement of his Fundamental Right is a matter for the Court to decide. In the words of the
Court:26"The jurisdiction enjoyed by this Court under Art. 32 is very wide as this Court, while
conceding a petition for the enforcement of any of the Fundamental Rights...., can declare an Act to
be ultra vires or beyond the competence of the legislature...." The Court has discretion in the matter
of framing writs to suit the exigencies of particular cases. The petition cannot be thrown out merely
because he has not prayed for a proper writ or direction. While issuing writs, the Court is not bound
to follow all the technicalities which surround these writs in Britain.27 The power of the Supreme
Court is not restricted to the five writs specifically mentioned in Art. 32(2). This is because of two
reasons, viz.: (1) The power of the Court is 'inclusive'; (2) The Court has power to issue writs "in the
nature of" the specified five writs. This means that the Court has flexibility in the matter of issuing
writs. Page 144 The Court has explained the position in M.C. Mehta v. Union of India:28 "....This
Court under Art. 32(1) is free to devise any procedure appropriate for the particular purpose of the
proceeding namely, enforcement of a Fundamental Right and under Art. 32(1) the Court has the
implicit power to issue whatever direction, order or writ is necessary in a given case, including all
incidental or ancillary power necessary to secure enforcement of the Fundamental Right".
DAMAGES In course of time, the Supreme Court has given a new dimension to Art. 32 and has
implied therefrom the power to award damages/compensation when a Fundamental Right of a
person has been infringed and there is no other suitable remedy available to give relief and redress
in the specific situation for the injury caused to the petitioner. The Court has argued that under Art.
32, its power is not only injunctive in ambit, that is, preventing the infringement of a Fundamental
Right, but it is also remedial in scope. Therefore, the Court cannot only injunct violation of a
Fundamental Right but also give relief when the right has already been violated. The Court has
maintained that in the absence of such a power, Art. 32 would be robbed of all its efficacy, become
emasculated and rendered futile and become impotent.29 Therefore, a person can seek remedial
assistance under Art. 32 when his Fundamental Right has been violated. As the Court has pointed
out in the case noted below.30 "It is in the matter of enforcement of Fundamental Rights that the
Court has the right to award damages to compensate the loss caused to a person on account of
violation of his Fundamental Rights." This, indeed, is a major contribution made by the Supreme
Court towards the protection of Fundamental Rights against undue interference by administrative
authorities, as situations may arise when only compensation could provide some relief to the
affected person and no writ or order could fill the bill. For example, in Rudul Sah v. State of Bihar, 31
in a writ petition for habeas corpus, the Court awarded damages to the petitioner against the State
for breach of his right of personal liberty guaranteed by Art. 21 as he was kept in jail for 14 years even
after his acquittal by a criminal Court. The fact situation revealed "a sordid and disturbing state of
affairs" for which the responsibility lay squarely on the Administration. The Court felt that not
awarding damages in the instant case would "be doing merely lip service to the Fundamental Right
to liberty which the State Government has so grossly violated". Since Rudul Shah, compensation has
been awarded in quite a few cases to the victims or their kith and kin, for police brutality, or
atrocities or harassment.32 The Supreme Court has observed in this connection in CERC: 33 "It is,
therefore, settled law that in public law claim for compensation is a remedy available under Article
32 or 226 for the enforcement and protection of fundamental and human rights. The defence of
sovereign immunity is inapplicable and alien to the concept of guarantee of Fundamental
Rights..."34 In Bodhisattwa Gautam v. Subhra Chakraborty, 35 the Supreme Court awarded an
interim compensation to the woman raped. The rapist was directed to pay Rs. 1000/- pm to the
concerned woman pending the criminal case against him. A significant recent judicial
pronouncement on the question of monetary compensation under its writ jurisdiction is Chairman,
Railway Board v. Chandrima Das . 36 Though the case has arisen under Art. 226 yet the principles
laid down therein are equally relevant to writ petitions under Art. 32 and the case may appropriately
be mentioned here. A Bangladeshi woman was gang raped by some railway employees in the railway
premises at the Howrah Railway Station. A practising lawyer filed a writ petition in the High Court
under Art. 226 as public interest litigation.37 The High Court awarded damages to the victim against
the Railways. On appeal, the Supreme Page 145 Court upheld the High Court decision. It was held to
be a violation of the rights of the victim under Art. 21 which was available not only to citizens but
also to non-citizens as well. The Court rejected the contention that the matter ought to have been
raised through a civil suit rather than a writ petition with the following observation:38 "...the
contention that the victim should have approached the Civil Court for damages and the matter
should not have been considered in a petition under Art. 226 of the Constitution cannot be accepted.
Where public functionaries are involved and the matter relates to the violation of the Fundamental
Rights or the enforcement of public duties, the remedy would still be available under the Public Law
notwithstanding that a suit could be filed for damages under Private Law. In the instant case, it is
not a mere matter of violation of an ordinary right of a person but the violation of Fundamental
Right which is involved. Mrs. Hanuffa Khatoon was a victim of rape. The Court in Bodhisattwa v. Ms.
Subhra Chakraborty39 has held "rape" as an offence which is violative of the Fundamental Right of a
person guaranteed under Article 21 of the Constitution." Another objection raised was that the
petition was filed not by the victim herself but by a practising lawyer. Rejecting the objection, the
Court ruled in favour of the locus standi of the petitioner because the petition claimed not only
compensation but several other reliefs and it was filed in public interest.40 A review of the cases
show that the Court has granted damages inter alia in the following categories of cases:41 (1) where
the petitioner has suffered personal injuries at the hands of government servants by their tortious
acts;42 (2) police atrocities;43 (3) custodial deaths;44 (4) medical negligence;45 (5) environmental
pollution.46 In cases of environmental pollution, the Supreme Court has advocated the principle of
polluter pays. On the question of award of damages for environmental pollution, the Supreme Court
has observed in M.C. Mehta v. Kamal Nath47 that pollution being a civil wrong against the
community as a whole, the Supreme Court has power under Art. 32 to award compensation to the
victims of pollution in a writ petition under Art. 32 against a person causing pollution. The damages
may fall under the following heads: (i) damages for restoration of the environment and ecology; (ii)
damages to those who may have suffered loss on account of the act of pollution; (iii) exemplary
damages so that other people are deterred from causing environmental pollution. But the Court
cannot impose pollution fine on the polluter under Art. 32. That can be done only through a
criminal prosecution of the polluter under the relevant law. The principle of awarding damages for
breach of Fundamental Rights has been recently reiterated by the Supreme Court in Rabindra Nath
Ghosal v. University of Calcutta:48 "The Courts having the obligation to satisfy the social aspiration
of the citizens have to apply the tool and grant compensation as damages in a public law
proceedings consequently when the Court moulds the relief in proceedings under Articles 32 and
226 of the Constitution seeking enforcement or protection of fundamental rights and grants
compensation, it does so under the public law by way of penalising the wrongdoer and fixing the
liability for the public wrong on the state which has failed in its public duty to protect the
fundamental rights of the citizens." (p) POWER TO ISSUE GENERAL DIRECTIONS While the basic
purpose underlying Art. 32 is to empower the Supreme Court to give relief to an aggrieved person
whose Fundamental Right has been infringed, the Court has used Art. 32 for a much wider purpose
than that, viz., to lay down general guidelines having the effect of law to fill the vacuum till such
time the legislature steps in to fill in the gap by making the necessary law. The Court derives such a
power by reading Art. 32 with Art. 142 and Art. 141. Art. 144 mandates all authorities to act in aid of
the Court orders.49 Page 146 The Court has stated in Visakha, 50that it is the duty of the executive
to fill the vacuum by executive orders because its field is coterminous with that of the legislature.
And where even the executive does not act, the judiciary must step in, in exercise of its
constitutional obligation under the abovementioned constitutional provisions to provide a solution
till the legislature acts to perform its role by enacting a proper legislation to cover the field. In the
instant case, to deal with the problem of sexual harassment of women at work place, the Court
issued guidelines to be observed' in all work places until suitable legislation is enacted to occupy the
field. In Union of India v. Association for Democratic Reforms,51 the Supreme Court issued certain
directions to the Election Commission.52 Justifying this, the Supreme Court observed : "....It is not
possible for this Court to give any directions for amending the Act or the statutory Rules. It is for
Parliament to amend the Act and the Rules. It is also established law that no direction can be given,
which would be contrary to the Act and the Rules. However, it is equally settled that in case when
the Act or Rules are silent on a particular subject and the authority implementing the same has
constitutional or statutory power to implement it, the Court can necessarily issue directions or
orders on the said subject to fill the vacuum or void till the suitable law is enacted."53 The Court has
asserted that where there is inaction by the executive, for whatever reason, the Court must step in,
in exercise of its constitutional obligations to provide a solution till such time, the legislature acts to
perform its role by enacting proper legislation to cover the field. If necessary the Court can issue
directions, in an appropriate case, even to private persons for the enforcement of the petitioner's
Fundamental Rights.54 The Court has issued guidelines and directions in quite a few cases. Some of
these cases are: (1) Lakshmi Kant Pandey v. Union of India, 55 where guidelines for adoption of
minor children by foreigners were laid down. (2) Supreme Court Advocates-on-Record Association v.
Union of India,56 where the Supreme Court laid down guidelines and norms for the appointment
and transfer of High Court Judges.57 (3) Visakha v. State of Rajasthan, 58 where elaborate guidelines
have been laid down to discourage sexual harassment of women in work places. (4) Vineet Narain v.
Union of India, 59 where the Court has laid down directions to ensure the independence of the
Vigilance Commission and to reduce corruption among government servants. This has been done to
implement the Rule of Law "wherein the concept of equality enshrined in Art. 14 is embedded." The
Court has done so as no legislation has been enacted covering the said filed to ensure proper
implementation of the rule of law. (5) Common Cause v. Union of India, 60 where the Supreme
Court issued directions for revamping the system of blood banks in the country. (6) Vishwa Jagriti
Mission v. Central Government ; 61 where the Court has issued guidelines against ragging in
educational institutions. The directions issued by the Supreme Court under Art. 32 have the force of
law.62 These directions remain in force till the legislature enacts a suitable law. The general
directions issued by the Court are, thus, quasi-legislative in nature for they bind not only the parties
to the specific dispute before the Court but even others. Breach of these directions amounts to
contempt of Court.63 This cases impart a much broader dimension to Art. 32.