WHETHER ARTICLE 32 OF THE CONSTITUTION OF INDIA CAN BE

EXERCISED, WHEN A PERSON HAS A REMEDY AVAILABLE UNDER ARTICLE

226 OF CONSTITUTION OF INDIA, WHEN ARTICLE 32 CAN BE EXERCISED?

Article 32 confers the right to every citizen to approach the highest court of the country i.e.
the Supreme Court of India, for enforcement of his fundamental rights. The scheme of the
Constitution is such that the right to approach to the Supreme Court for such cause is in itself
a fundamental right.

Explaining the significance and the ambit of the rights available to the citizens to approach
the Supreme Court directly in matters affecting the exercise of fundamental rights guaranteed
by the Constitution, the Supreme Court in a recent decision Poonam v. Sunil Talwar1
discussed the scope of Article 32 of the Constitution granting such right.

The Bench explained the provision, inter alia as under;

7. The citizens are entitled to appropriate relief under the provisions of Article 32 of the
Constitution, provided it is shown to the satisfaction of the Court that the Fundamental Right
of the petitioner had been violated 2.This Court has a constitutional duty to protect the
Fundamental Rights of Indian citizens. (Vide M.C. Mehta Vs. Union of India AIR 2006 SC
1325). The distinction in a Writ Petition under Article 226 and Article 32 of the Constitution
is that the remedy under Article 32 is available only for enforcement of the Fundamental
Rights, while under Article 226 of the Constitution, a Writ Court can grant relief for any
other purpose also (Vide A.K. Gopalan Vs. State of Madras3; Bhagwandas Gangasahai
Vs. Union of India & Ors.4; Kalyan Singh Vs. State of Uttar Pradesh & Ors.5; Fertilizer
Corporation Kamagar Union, Sindri & Ors. v. Union of India & Ors. 6). Even if it is
found that injury caused to the writ petitioner alleging violation of Fundamental Right is too
indirect or remote, the discretionary writ jurisdiction may not be exercised as held by this
Court in State of Rajasthan & Ors. v. Union of India7. 

1
Writ Petition (Civil) No. 86 Of 2010
2
Vide Daryao & Ors. V. State of U.P. & Ors. AIR 1961 SC 1457
3
AIR 1950 SC 27
4
AIR 1956 SC 175
5
AIR 1962 SC 1183
6
AIR 1981 SC 344
7
AIR 1977 SC 1361
8. More so, a writ lies only against a person if it is a statutory body or performs a public
function or discharges a public or a statutory duty, or a “State” within the meaning of Article
12 of the  Constitution. (Vide Anandi Mukta Sadguru Trust Vs. V.R. Rudani 8; VST
Industries Ltd. Vs. VST Industries Workers’ Union & Anr. 9; and State of Assam Vs.
Barak Upatyaka U.D. Karamchari Sanstha10.)

9. It is settled legal proposition that the remedy of a person aggrieved by the decision of the
competent judicial Tribunal is to approach for redress a superior Tribunal, if there is any,
and that order cannot be circumvented by resorting to an application for a writ under Article
32 of the Constitution. Relief under Article 32 can be for enforcing a right conferred by Part
III of the Constitution and only on the proof of infringement thereof. If by adjudication by a
Court of competent jurisdiction, the right claimed has been negatived, a petition under
Article 32 of the Constitution is not maintainable. It is not generally assumed that a judicial
decision pronounced by a Court may violate the Fundamental Right of a party. Judicial
orders passed by the Court in or in relation to proceeding pending before it are not amenable
to be corrected by issuing a writ under Article 32 of the Constitution. (Vide Sahibzada
Saiyed Muhammed Amirabbas Abbasi & Ors. Vs. the State of Madhya Bharat (now
Madhya Pradesh) & Ors.11; Smt. Ujjam Bai Vs. State of Uttar Pradesh & Anr. 12; and
Naresh Shridhar Mirajkar Vs. State of Maharashtra13

GHULAM AHMAD GADDA v. STATE OF JAMMU AND KASHMIR AND

ANOTHER14

“The Petitioner had a remedy open to him and he could avail of that remedy by filing an
appeal against the impugned order but he did not do so and allowed that order to become
final by allowing the period of limitation prescribed for filing the appeal to expire. The
question in this case is whether a party who has not availed of the alternative remedy open to
him within the prescribed period should be allowed to challenge the order passed against

8
AIR 1989 SC 1607
9
(2001) 1 SCC 298
10
AIR 2009 SC 2249
11
AIR 1960 SC 768
12
AIR 1962 SC 1621
13
AIR 1967 SC 1
14
Writ Petition No. 33 of 1956 | 23-08-1956
him by filing an application under Article 32(2A) of the Constitution of India. The remedy
provided under Article 32(2A) is a discretionary remedy and in exceptional cases this remedy
should be granted.

If the law had laid down a particular procedure to redress the grievance, the aggrieved party
should follow that procedure and should not by-pass that procedure by resorting to a petition
under Article 32(2A). The Petitioner has not been diligent enough to file an appeal within the
prescribed period available to him under the Motor Vehicles Act against the impugned order.
His petition under Article 32(2A) of the Constitution of India to quash the order of the
Registering and licensing Authority should, in my opinion, be dismissed. His case is quite
different from that person who has an alternative remedy but that remedy is not adequate and
efficacious to give him relief and so he files a writ petition; but in the present case the
Petitioner did not avail of the alternative remedy within the prescribed period and allowed
the order of the Registering and Licensing Authority to become final.

There is no satisfactory explanation on the part of the Petitioner to show as to why the
remedy available to him under the Act was not availed of by him. He, not being diligent
himself, cannot ask the Court to grant him an extraordinary remedy under Article 32(2A) of
the Constitution. In support of this view reliance may be placed on a ruling of the Calcutta
High Court, Narayan Chandra Mukherjee and Another V. District Magistrate, Hooghly
and Others15, wherein it has been held that absence of diligence in pursuing a legal remedy
can never be a justification for issuing a high prerogative writ.”

IDPL VRS and Retired Employees Federation Gurgaon v. The Secretary16

Facts: Petitioners filed a writ petition under Article 32 of the Constitution of India and vide
order dated 18.9.2009 the same was "dismissed as withdrawn". Without obtaining leave for
filing a fresh petition from the Supreme Court, the petitioners have now approached this
Court by filing a writ petition under Article 226 of the Constitution of India on the same
cause of action.

15
AIR 1954 Cal 32
16
Civil Writ Petition No. 12665/2009 | 19-04-2010
“whether it makes any difference to the application of this rule that the decision on which the
plea of res judicata is raised is a decision not of this Court but of a High Court exercising its
jurisdiction under Article 226. The argument is that one of the essential requirements of
Section 11 of the Code of Civil Procedure is that the Court which tries the first suit or
proceeding should be competent to try second suit or proceeding, and since the High Court
cannot entertain an application under Article 32 its decision cannot be treated as res judicata
for the purpose of such a petition. It is doubtful if the technical requirement prescribed by
Section 11 as to the competence of the first Court to try the subsequent suit is an essential
part of the general rule of res judicata; but assuming that it is, in substance even the said test
is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed
under Article 226 is substantially the same as the jurisdiction of this Court in entertaining an
application under Article 32. The scope of the writs, orders or directions which the High
Court can issue in appropriate cases under Article 226 is concurrent with the scope of
similar writs, orders or directions which may be issued by this Court under Article 32. The
cause of action for the two applications would be the same. It is the assertion of the existence
of a fundamental right and its illegal contravention in both cases and the relief claimed in
both the cases is also of the same character. Article 226 confers jurisdiction on the High
Court to entertain a suitable writ petition, whereas Article 32 provides for moving this Court
for a similar writ petition for the same purpose. Therefore, the argument that a petition under
Article 32 cannot be entertained by a High Court under Article 226 is without any substance;
and so the plea that the judgment of the High Court cannot be treated as res judicata on the
ground that it cannot entertain a petition under Article 32 must be rejected.

It is, however, necessary to add that in exercising its jurisdiction under Article 226 the High
Court may sometimes refuse to issue an appropriate writ or order on the ground that the
party applying for the writ is guilty of laches and in that sense the issue of a high prerogative
writ may reasonably be treated as a matter of discretion. On the other hand, the right granted
to a citizen to move this Court by appropriate proceedings under Article 32(1) being itself a
fundamental right this Court ordinarily may have to issue an appropriate writ or order
provided it is shown that the petitioner has a fundamental right which has been illegally or
unconstitutionally contravened. It is not unlikely that if a petition is filed even under Article
32 after a long lapse of time considerations may arise whether rights in favour of third
parties which may have arisen in the meanwhile could be allowed to be affected, and in such
a case the effect of laches on the part of the petitioner or of his acquiescence may have to be
considered; but, ordinarily if a petitioner makes out a case for the issue of an appropriate
writ or order he would be entitled to have such a writ or order under Article 32 and that may
be said to constitute a difference in the right conferred on a citizen to move the High Court
under Article 226 as distinct from the right conferred on him to move this Court. This
difference must inevitably mean that if the High Court has refused to exercise its discretion
on the ground of laches or on the ground that the party has an efficacious alternative remedy
available to him then of course the decision of the High Court cannot generally be pleaded in
support of the bar of res judicata. If, however, the matter has been considered on the merits
and the High Court has dismissed the petition for a writ on the ground that no fundamental
right is proved or its breach is either not established or is shown to be constitutionally
justified there is no reason why the said decision should not be treated as a bar against the
competence of a subsequent petition filed by the dame party on the same facts and for the
same reliefs under Article 32.

There is one more argument which still remains to be considered. It is urged that the
remedies available to the petitioners to move the High Court under Article 226 and this
Court under Article 32 are alternate remedies and so the adoption of one remedy cannot bar
the adoption of the other. These remedies are not exclusive but are cumulative and so no bar
of res judicata can be pleaded when a party who has filed a petition under Article 226 seeks
to invoke the jurisdiction of this Court under Article 32. In support of this contention reliance
has been placed on the decision of the Calcutta High Court in Mussammat Gulab Koer v.
Badshah Bahadur17. In that case a party who had unsuccessfully sought for the review of a
consent order on the ground of fraud brought a suit for a similar relief and was met by a plea
of res judicata. This plea was rejected by the Court on the ground that the two remedies
though co-existing were not inconsistent so that when a party aggrieved has had recourse
first to one remedy it cannot be precluded from subsequently taking recourse to the other. In
fact the judgment shows that the Court took the view that an application for review was in the
circumstances an inappropriate remedy and that the only remedy available to the party was
that of a suit. In dealing with the question of res judicata the Court examined the special
features and conditions attaching to the application for review, the provisions with regard to
the finality of the orders passed in such review proceedings and the limited nature of the right
to appeal provided against such orders. In the result the Court held that the two remedies
cannot be regarded as parallel and equally efficacious and so no question of election of

17
13 C.W.N. 1197
remedies arose in those cases. We do not think that this decision can be read as laying down
a general proposition of law that even in regard to alternate remedies if a party takes
recourse to one remedy and a contest arising therefrom is tried by a court of competent
jurisdiction and all points of controversy are settled the intervention of the decision of the
Court would make no difference at all. In such a case the point to consider always would be
what is the nature of the decision pronounced by a Court of competent jurisdiction and what
is its effect. Thus considered there can be no doubt that if a writ petition filed by a party has
been dismissed on the merits by the High Court the judgment thus pronounced is binding
between the parties and it cannot be circumvented or by-passed by his taking recourse to
Article 32 of the Constitution. Therefore, we are not satisfied that the ground of alternative
remedies is well founded.

From the aforesaid judgment, it would be manifest that the Apex Court was primarily dealing
with a question as to whether the second petition based on the same facts would be barred by
the principles of res judicata or not. The Court in a passing reference also held that if the
petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under Article
32 because in such a case there has been no decision on the merits of the case by the court.

If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under

Article 32, because in such a case there has been no decision on the merits by the Court. We
wish to make it clear that the conclusions thus reached by us are confined only to the point of
res judicata which has been argued as a preliminary issue in these writ petitions and no
other.

9. The point for consideration is whether a petitioner after with-drawing a writ petition filed
by him in the High Court under Article 226 of the Constitution of India without the
permission to institute a fresh petition can file a fresh writ petition in the High Court under
that Article. On this point the decision in Daryaos case (supra) is of no assistance. But we
are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be
extended in the interests of administration of justice to cases of withdrawal of writ petition
also, not on the ground of res judicata but on the ground of public policy as explained above.
It would also discourage the litigant from indulging in bench-hunting tactics. In any event
there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary
jurisdiction of the High Court under Article 226 of the Constitution once again. While the
withdrawal of a writ petition filed in a High Court without permission to file a fresh writ
petition may not bar other remedies like a suit or a petition under Article 32 of the
Constitution of India since such withdrawal does not amount to res judicata, the remedy
under Article 226 of the Constitution of India should be deemed to have been abandoned by
the petitioner in respect of the cause of action relied on in the writ petition when he
withdraws it without such permission. In the instant case the High Court was right in holding
that a fresh writ petition was not maintainable before it in respect of the same subject-matter
since the earlier writ petition had been withdrawn without permission to file a fresh petition.
We, however, make it clear that whatever we have stated in this order may not be considered
as being applicable to a writ petition involving the personal liberty of an individual in which
the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce
the fundamental right guaranteed under Article 21 of the Constitution since such a case
stands on a different footing altogether. We, however leave this question open.”