Filing of Writ Petition Under Article 32 of the Constitution of India with Supreme Court. Basic facts about Writ Petition to Supreme Court.

 

The right to move the Supreme Court by appropriate proceedings for enforcement of the rights conferred by part III of the constitution is guaranteed. The jurisdiction of the Supreme Court under the Article 32 is very wide. The first discussion of the scope Article 32 was in Romesh Thappar v. State of Madras. (1950) SCR 594.

 

In this case, the petitioner had challenged the order of the State of Madras by which the magazine of the petitioner was banned for circulation in the State of Tamil Nadu. The Advocate General of Madras raised a preliminary objection that the petitioner ought to have approached the High Court under Article 226 which had concurrent jurisdiction. The Supreme Court held that :

 

"The Article does not merely confer power on this Court as Article 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any purpose, as a part of its general jurisdiction. In that case, it would have been more appropriately placed among Articles 131 to 139 which define that jurisdiction: Article 32 provides a guaranteed remedy for the enforcement of those rights, the this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights."

 

In another case Daryao v. State of U.P, (1962) 1 SCR 574 the Supreme Court observed at page 581 of SCR.


"There can be no doubt that the fundamental right guaranteed by Article 32(1) is a very important safeguard for the protection of the fundamental rights of the citizens, and as a result of the said guarantee this Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country. The fundamental rights are intended not only to protect individual's rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself."

There are two important points need to be noted here.

 

1. A person can approach the Supreme Court by 'appropriate proceedings'

 

2. The remedy is available against the 'State' as defined in Article 12 of the Constitution. But the rights are not available against a private organization. The Supreme Court in "P.D. Shamdasani v. Central Bank of India Ltd.", held that the remedy by way of a writ petition under Article 32 is not available against a private party, but against the State only. The Court stated:


"We are of the opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither Article 19(1) (f) nor Article 31(1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct... And structure of Article 19 and its setting in Part III of the Constitution clearly show that the Article was intended to protect those freedoms against State action other than in the legitimate exercise of its powers to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the Article."


However, it is relevant to point out that over the years, the Court has held that the remedy under Article 32 is a available not only when the rights are directly infringed by the State, but where due to absence of law of inaction of the State, rights of persons/citizens are violated And the Court can the approached for directions to the State to take action to ensure that the rights are not being violated by private persons. It is not necessary that the petitioner should move this Court after his/her fundamental right is actually infringed. He can move the Court even when there is a real threat of infringement of his fundamental right.


In Charanjit Lal v. Union of India (1950) SCR 869. The Court held that Article 32 of the Constitution gives the Court very wide discretion in the framing of writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for. It must be further emphasized that the power of the Supreme Court was not limited only to granting the writs mentioned in Article 32 (2), it can grant any relief that it may think just and proper.

 

When Article 32 Petition will not be maintainable

The Supreme Court has been approached in all kinds of cases under Article 32.
In Ujjam Bai (Smt) v. State of Uttar Pradesh, (1963) 1 SCR 778. when the order of assessment of sales tax was challenged in writ proceedings under Article 32, the Court held that normally in three classes of cases, the question of infringement of fundamental rights would arise, though these classes are not exhaustive:

 

(1) Where action is taken under a statute which is ultra vires the Constitution;

 

(2) Where the statute is intra vires but the action taken is without jurisdiction; and


(3) Where the action taken is procedurally ultra vires as where a quasi-judicial authority under an obligation to act judicially passes an order in violation of principles of natural justice.


Therefore, in the present case, where the order of the Sales Tax Officer was intra vires, the Court held that a writ petition under Article 32 would not lie. A mere challenge to orders under certain Acts as erroneous on merits will not entitle the petitioner to file a writ petition under Article 32.

 

In Gulabdas and Co. v. Assistant Collector of Customs AIR 1957 SC 733.
The petitioner challenged the orders passed under the Indian Tariff Act, 1934, and under the provisions of the Sea Customs Act, 1978, on merits. They did not challenge the constitutionality of the Acts on the grounds that they infringed the petitioner's fundamental rights under Article 19(1)(f) and (g). The Court held that if the provisions of law under which the impugned orders had been passed were good provisions and the orders passed were the jurisdiction, whether they might be right or wrong on facts, there was no question of the infraction of a fundamental right. If a particular decision was erroneous on facts or merits, the proper remedy was by way of an appeal.


The impact of the actions of the State resulting in alleged violation of fundamental right must be direct and immediate and not remote.


Existence of Alternate remedy is no bar to entertain a petition under Article 32.

 

For filing Writ Petition with Supreme Court under Article 32 of the Constitution, it is not necessary for the petitioner to establish that no other remedy, adequate or otherwise, was available or that the petitioner has exhausted such remedies as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of the Court that by State action the petitioner's fundamental rights are infringed, he/she is entitle to move a petition under this Article without waiting for other remedies. 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 breach, actual or threatened, of such right is alleged and is prima facie established in the petition.

 

Disputes of questions of fact are no bar to entertain a Writ Petition

The Supreme Court can even determine disputed questions or fact in writ petitions under Article 32 and it will not refuse to grant and appropriate writ merely on the basis that the questions raise in the writ involve determination of disputed questions of fact.

The Court normally can decide disputed questions on the basis of affidavits or by a Commission. In a habeas corpus petition, if the facts are controverted by the State (or the respondent), the Court may appoint the District judge of District or the Central Bureau of Investigation to investigate the matter and submit a report, based on which necessary orders are passed.

 

No Writ or Certiorari can be filed against a High Court order

The question that arose for consideration before the Supreme Court was whether a writ petition under Article 32 would lie if a judicial order violated the fundamental rights of a citizen.

In Naresh Shridhar Mirajkar v. State of Maharashtra (1966) 3 SCR 744 the petitioner was directed by the Bombay High Court (Original Side) not to report proceedings of a case. The petitioner filed a petition under Article 32 of the Constitution on the ground that the order of the High Court violated his rights under his rights under Article 19(1)(a) and (g) of the Constitution.

The Supreme Court observed: (Page 773 of SCR).
"We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writs of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by the High Court in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. We have no doubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Article 32 to correct such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Article 32. The words used in Article 32 are no doubt wide; but having regard to the considerations with we have set out in the course of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this Court's jurisdiction to issue writs of certiorari under Article 32; to hold otherwise would be repugnant to the well-recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this Court's decisions in relation to the said point."


The Court held that in case a party was aggrieved by such an order it was always open to him to approach the higher courts in appeal or otherwise. Therefore an order of a High Court can be assailed in the Supreme Court by way of an appeal, if provided for by the Constitution or law, or by way of a petition for special leave to appeal.
 

Circumstances in which Writ Petition under Article 32 is not maintainable on Constructive Res judicata.

The Supreme Court has held that a writ petition under Article 32 of the Constitution after dismissal of a writ petition under Article 226 for similar/same relief is barred by the principles of constructive res judicata and public policy. The Court has held that even though it has an obligation under Article 32 to protect the Fundamental Rights, it was in keeping with public policy that successive petitions are not filed and there is finality to the order of a competent court. If a writ petition under Article 226 of the Constitution is considered on merits as a contested matter and is dismissed, the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate procedure.

 

The principle of constructive res judicata contained in Explanation IV to Section 11 of the Civil Procedure Code is applicable to writ petitions also.

 

No Estoppels against enforcement of fundamental rights

 

The Supreme Court in Olga Tellis v. Bombay Municipal Corpn. (1985) 3 SCC 545 held that there cannot be any estoppel against enforcement of Fundamental Rights. A preliminary objection was raised that the petitioner has stated before the High Court that they would not claim any fundamental rights in case of their eviction from their pavement or slum dwelling. The Court held that there cannot be estoppel against the enforcement of Fundamental Rights under Article 32, even if the petitioners have conceded before the High Court that they would not claim any Fundamental Rights . The Constitution of India is not only the paramount law of the land, but it is the source and sustenance of law. Its provisions were conceived in public interest and were intended to serve a public purpose.
 

Locus Standi of Writ Petitioner

 

A Petition under Article 32 of the constitution can be filed only by a person whose fundamental rights are infringed. This is the basic principle of legal redress and has been followed by the Supreme Court while entertaining petitions under Article 32. PIL is exempted.


There is exception in the case of habeas corpus petitions also. In such a petition, not only a man who is imprisoned or detained in confinement, but a person who is related or is well conversant with the facts can institute proceedings and pray for a writ of habeas corpus stating that the person has been illegally imprisoned or detained.


In cases of violation of Fundamental Rights of a company, the company which can apply, and not its shareholders as the shareholders of the company are separate legal entities.

 

Delay in filing Petition under Article 32 with Supreme Court

 

The Courts have held that the remedy under Article 226 and 32 are discretionary and equitable. Delay disentitles a party to the relief.

 

The majority decision in Trilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110 Laid down some guidelines as to when a petition would not be entertained in case of delay. They may be summarised as follows:


(i) The remedy under Article 32 is akin to an equitable remedy to which the doctrines of laches and acquiescence were incidents, according to the maxim 'delay defeats equity'. Even though there is no statute of limitation governing the relief under Article 32, the equitable principle should be applied.

 

(ii) The general rule of administration of justice should apply to the jurisdiction under Article 32 on grounds of public policy.

 

(iii) Justice must be administered "in accordance with law and principles of equity, justice and good conscience". It would be unjust to deprive third parties of rights which have accrued to them owing to the delay on the part of the petitioner in coming to Court. Delay, however, has to be considered on a case to case basis, and the Court would keep in mind its duty under Article 32, i.e. protection of Fundamental Rights of persons.

 

Questions other than violation of Fundamental rights are not generally decided in Writ Petition under Article 32

The Court will not determine any other question in a petition under Article 32, unless it relates to the infringement of Fundamental Right. The Court would examine the validity of the provisions of a statute only on the ground of contravention of Fundamental Rights and not on other grounds. The Court would confine the petitions to provisions of the impugned Act by which Fundamental Rights were either affected or threatened. The Court has held that the validity of legislations cannot be looked into in abstract, but the question has to arise in facts of the case.

 

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