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WHAT IS SCOPE OF JURISDICTION OF SUPREME COURT UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA ?

Article 32 guarantees every citizen, and in some cases to non-citizens also,   the right to move  to the Supreme Court for enforcement of Fundamental Rights conferred under Part III of the Constitution. The Supreme Court can issue directions, orders or writs in the nature of habeus corpus, mandamus, prohibition, quo warranto, and certiorari. Article 32 is itself a Fundamental Right. Dr. Ambekar has said that Article 32 is soul and heart of Indian Constitution.

Remedy under Article 32 can be availed only if one of rights provided under Part III has been infringed. Such remedy is only available against State and not against any private party.

An aggrieved person has to approach the Supreme Court by “appropriate proceedings”. Appropriate proceedings have been interpreted liberally by the Supreme Court. Even post card sent to the Supreme Court  can be treated as a writ petition.

Fundamental Rights granted under Article 20 and 21 cannot be suspended even during proclamation of emergency.

AVAILABILITY OF ALTERNATIVE REMEDY

Supreme Court as well High Courts have concurrent jurisdiction under Article 32 and Article 226 respectively to issue direction, order or writs for enforcement of Fundamental Rights. One of the issues which have frequently emerged before the Supreme Court is whether one should avail alternative remedy before the High Court under Article 226 before approaching the Supreme Court.

The Supreme Court in Romesh Thappar Vs. State of Madras (1950) SCR 594 dealt with this  aspect and held that Article 32 does not grant general jurisdiction on Supreme Court like jurisdiction granted to High Court under Article 226.  In that case it would have been placed among Article 131 to 139 of the Constitution. Article 32 provides a guaranteed remedy for enforcement of Fundamental Rights and it has itself been made a Fundamental Right. The Supreme Court cannot refuse to entertain applications seeking protection of Article 32.

While invoking remedy under Article 32 of the Constitution it is not necessary to establish that the petitioner has exhausted alternate remedy. In Kharak Singh Vs. State of UP (1964) 1 SCR 332 , the Supreme Court held that it is erroneous to assume that the Petitioner has to exhaust alternate remedy before approaching the Supreme Court. It is not right but duty of the Supreme Court to pass appropriate order under Article 32 in case of infringement of Fundamental Right.

Recent cases show that the Supreme Court encourages availing alternate remedy before approaching Supreme Court. The Supreme Court in P. N. Kumar Vs. Municipal Corporation of Delhi (1987) 4 SCC 609 held that the Petitioner in all cases must approach High Court before approaching the Supreme Court.

ARTICLE 32 AND BASIC STRUCTURE

The Supreme Court in Kesavananda Bharati Vs State of Kerala (1973) 4SCC225 has held that basic structure of the Constitution can not be amended. The Supreme Court in L. Chandra Kumar Vs. Union of India (1997) 3 SCC 261 has held that Article 32 and Article 226 form basic structure of the Constitution and can not be taken away.

DISPUTED QUESTIONS OF FACTS

The Supreme Court can determine disputed questions of facts in a Petition under Article 32 of the Constitution. The Supreme Court in K. K. Kochunni vs. State of Madras (AIR 1959 SC 725 )  held that it can not dismiss a Petition under Article 32 on the simple ground that it involves determination of question of fact. But it seems that the Supreme Court is reluctant to entertain Petitions involving question of facts. In Bishamber Dayal Chandra Mohan Vs. State of UP  (1982 ) 1 SCC 39 the Supreme Court held that where facts are disputed Petition under Article 32 is not an appropriate remedy.

MAINTABILITY OF PETITON UNDER ARTICLE 32 AGAINST HIGH COURT ORDER

The Supreme Court has held in Naresh Sridhar Mirajkar Vs State of Maharastra (1966) 3 SCR 744  that a party aggrieved by order of High Court can approach Supreme Court by appeal or Special Leave Petition but cannot avail remedy under Article 32 of the Constitution.

MAINTABILITY OF PETITION UNDER ARTICLE 32 AGAINST ORDER OF THE SUPREME COURT

The Supreme Court in Rupa Ashok Hurra Vs Ashok Hurra  (2002) 4 SCC 338 has held that final judgments of the Supreme Court cannot be assailed under Article 32 , whether the aggrieved person was party to the case or not.

ARTICLE 32 AND RES JUDICATA

A Writ Petition under Article 32 after dismissal of Writ Petition under Article 226 is barred on the principle of constructive res judicata and public policy. If a Writ Petition under Article 226  has been dismissed on account of laches or delay or alternate remedy or in limine without speaking order, a petition under Article 32 will be maintainable.

ESTOPPEL AND FUDNAMENTAL RIGHTS

The Supreme Court has held in Olga Tellis Vs Bombay Municipal Corporation (1985 ) 3 SCC 545 that there cannot be any estoppel against enforcement of Fundamental Rights.

ARTICLE 32 AND LIMITATION

No limitation has been prescribed for filing a Petition under Article 32. The Supreme Court has held in Trilokchand Motichand Vs H. B. Munshi (1969) 1 SCC 110 that although no limitation has been provided under Article 32, the equitable principle has to be applied.

CONSTITUTIONAL TORT

If Fundamental Rights have been violated by State, in appropriate cases the Supreme Court can award compensation. The Supreme Court in Rudal Sah Vs State of Bihar (1983) 4 SCC 141 awarded compensation to the Petitioner wherein Petitioner has been detained for more than 14 years even after acquittal.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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