9 Apr 2010

Remedy under Article 32: The law revisited

Dr. Ambedkar, the person who is attributed with the fatherly rights over the Constitution of India, declared at the time of adoption of the Constitution that if there was one most important provision in the Constitution, it was Article 32 thereof. This 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 Talwar] 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. (Vide Daryao & Ors. Vs. State of U.P. & Ors. AIR 1961 SC 1457). 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 Madras AIR 1950 SC 27; Bhagwandas Gangasahai Vs. Union of India & Ors. AIR 1956 SC 175; Kalyan Singh Vs. State of Uttar Pradesh & Ors. AIR 1962 SC 1183; Fertilizer Corporation Kamagar Union, Sindri & Ors. Vs. Union of India & Ors. AIR 1981 SC 344). 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. Vs. Union of India 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 AIR 1989 SC 1607; VST Industries Ltd. Vs. VST Industries Workers’ Union & Anr. (2001) 1 SCC 298; and State of Assam Vs. Barak Upatyaka U.D. Karamchari Sanstha AIR 2009 SC 2249).
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. AIR 1960 SC 768; Smt. Ujjam Bai Vs. State of Uttar Pradesh & Anr. AIR 1962 SC 1621; and Naresh Shridhar Mirajkar Vs. State of Maharashtra AIR 1967 SC 1)

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