Article 32 Petition in the Supreme Court: When It Is Maintainable

What Article 32 covers, and what it does not

The Supreme Court can issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any fundamental right. Three limits follow from the text and the case law.

• Only fundamental rights. A purely statutory right, a service benefit under a rule, or a claim under a contract is enforced under Article 226 in the High Court or in the ordinary courts, not under Article 32.
• Generally only against the State. Fundamental rights bind the State and its instrumentalities; a few, such as the bars on untouchability and forced labour in Articles 17 and 23, operate against private persons too.
• Not against judicial orders. In Naresh Shridhar Mirajkar v. State of Maharashtra (1966) the Court held that a judicial order of a court does not violate a fundamental right in the sense needed for Article 32, and in Rupa Ashok Hurra v. Ashok Hurra (2002) it confirmed that its own final judgments cannot be reopened by a writ petition.

Article 226, by contrast, allows the High Court to issue writs for fundamental rights and for any other purpose. It is wider in subject matter, and the High Court is usually closer to the facts and the record.

Why the Court often sends petitioners to the High Court

In Romesh Thappar v. State of Madras (1950) the Supreme Court held that it cannot refuse an Article 32 petition merely because the petitioner could have gone to the High Court. That principle still stands. In practice, however, the Court increasingly exercises restraint. When a petition raises facts that need examination, a challenge to a local order, or a matter the High Court is fully equipped to decide, the bench will usually grant liberty to approach the High Court rather than decide it. Bail, quashing of a single FIR, and service disputes are common examples.

A petition is more likely to be heard directly in the Supreme Court where:

• the challenge is to a central law or a policy that applies across the country, so that several High Courts might otherwise give conflicting answers;
• the same action affects people in more than one State, for example multiple FIRs registered in different States over one publication;
• the issue is a pure question of constitutional law that will in any case reach the Supreme Court;
• there is urgency affecting life or liberty and the High Court route would be ineffective.

Choosing the High Court first is not a lesser option. A reasoned High Court judgment can be taken to the Supreme Court by Special Leave Petition, and the record it creates often makes the later challenge stronger.

The res judicata trap

Choosing the order of remedies has consequences. In Daryao v. State of Uttar Pradesh (1961) the Supreme Court held that where a High Court has dismissed an Article 226 petition on the merits, the same claim cannot be brought afresh under Article 32; the remedy is to appeal the High Court's decision. A dismissal on technical grounds, such as delay or an alternative remedy, does not have this effect. A petitioner who has lost in the High Court should therefore file a Special Leave Petition, not a fresh writ.

Public interest petitions under Article 32

The Supreme Court relaxed the rule that only the person affected can apply, so that a public-spirited person or body may raise the rights of those unable to approach the Court themselves. The Court now screens such petitions strictly. It looks for the petitioner's bona fides, research into the facts, whether the issue has been raised with the authorities first, and whether a similar case is already pending. Petitions that seek publicity, pursue a private dispute in public-interest dress, or rely only on newspaper reports are routinely dismissed, sometimes with costs. Our note on public interest litigation explains the same principles as they apply in the Punjab & Haryana High Court.

Preparing an Article 32 petition

1. 1.Identify the precise fundamental right infringed and the State action that infringes it, with the order, notification or law under challenge.
2. 2.Record any representation made to the authority and its response, or the absence of one.
3. 3.State in the petition whether the petitioner has approached any High Court on the same issue and, if not, why the Supreme Court should hear it directly.
4. 4.Frame the prayers: the writ sought, any interim relief, and consequential directions.
5. 5.Attach the documents relied on, with translations where needed, and file through an Advocate-on-Record, as the Supreme Court Rules require for every petition.

There is no fixed limitation period for a writ petition, but unexplained delay and laches can defeat it. Acting promptly after the impugned action is part of a well-made petition.

How we advise

Our Supreme Court chamber handles Article 32 petitions, and our High Court teams at Chandigarh and in Delhi handle writ petitions under Article 226. Because we practise in both, our first advice is often about forum: which court will hear the case on its merits soonest, and which route leaves the strongest record for any further challenge.