OP. ED.SCC Journal Section Archives

 A TWO judge bench of the Supreme Court,1 in Union of India v. Paul Manickam,2 a case challenging the preventive detention of the respondent’s daughter as unlawful has observed as under:3

It is appropriate that the concerned High Court under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke jurisdiction under article 32 of the Constitution to approach this court directly, it has to be shown by the petitioner as to why the high court has not been approached, could not be approached or it is futile to approach the high court. Unless satisfactory reasons are indicated in this regard, filing of petition on such matters, directly under article 32 of the Constitution is to be discouraged.

This observation of the apex court that before a person complaining of violation of his fundamental rights approach the Supreme Court under article 32 should approach the high court first under article 226, raises serious questions as to the true scope and ambit of article 32.

In the instant case the respondent who is the father of the detenue who was detained under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for possessing a huge quantity of contraband articles, addressed a representation on her behalf to the President of India. He also filed a habeas corpus petition before the Madras High Court challenging the detention order. The court dismissed the writ petition but on his application for review it quashed the order of detention. Hence this appeal by the Union of India to the Supreme Court.

Thus, it was not the petitioner who approached the Supreme Court by way of a writ under article 32 for setting aside the order of detention. Instead it was the Union of India which approached the Supreme Court by way of appeal under article 136 of the Constitution by raising various contentions, inter alia, that:4

[R]enegades who disturb peace and tranquillity of citizens are like termites which corrode financial stability of the country with vicious designs file petitions full of falsehood and at times approach this court under article 32 even without approaching the jurisdictional High Court.

What made the Union of India to take this pea is not clear from the facts of the case since the petitioner had not approached the apex court directly. It was against this plea, the Supreme Court, while dismissing the appeal by the Union of India in the instant case expressed the above quoted view.

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NOTE: This article was first published in the Journal of the Indian Law Institute 47 JILI (2005) 102.

* Associate Research Professor, Indian Law Institute, New Delhi.

1 Doraiswamy Raju and Arijit Passayat JJ.

2 (2003) 8 SCC 342 : AIR 2003 SC 4622.

3 Id. at 4630. (Emphasis added).

4 Id. at 4624.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, Hemant Gupta and Ajay Rastogi, JJ has imposed a fine of Rs 5,00,000 on the petitioner seeking ban on the sale and use of Coca Cola, Thums up, Soft Beverages. The PIL had also sought issuing Notification uprising people at large not to drink and use it, as the same is detrimental to the cause of health.

Calling the invocation of Supreme Court’s jurisdiction under Article 32 of the Constitution an abuse of process, the Court said,

“The petition has been filed without the petitioner having any technical knowledge on the subject. The source of his assertions has not been substantiated. No justification or explanation is forthcoming during the submissions of Mr S P Singh, learned Senior Counsel on why two specific brands in particular are chosen to be the target of the proceedings.”

It, hence, said that besides dismissing the petition an order directing the imposition of exemplary costs was necessary.

The costs imposed is to be deposited in the Registry within one month and shall be disbursed to the Supreme Court Advocates-on-Record Association.

[Umedsinh P Chavda v. Union of India, 2020 SCC OnLine SC 500  , order dated 11.06.2020]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. disposed of a writ petition filed under Article 32 of the Constitution wherein the Court issued various directions concerning the people suffering from leprosy.

The petitioner sought directions to be issued to the Union and the States to conduct periodic national survey for determining new cases relating to detection rate of leprosy and to publish and bring in the public domain the reports of National Sample Survey on Leprosy conducted in 2010-2011 and further to conduct regular and sustainable massive awareness campaigns for the general public to dispel the fear associated with leprosy and support and encourage the people afflicted by the said disease to lead a life of equality and dignity. In the instant writ petition, the petitioner drew attention of the Court to the fact that although leprosy as a disease has been scientifically and medically proven to be curable and manageable with MDT, yet the fact remains that millions of people and their family members still suffer from leprosy and the social, economic and cultural stigma attached to the said disease. This fact reveals the lack of awareness and the prevailing misguided notions in the society pertaining to leprosy. Due to the disability that entails as a result of the disease, the people affected by leprosy suffer additional discrimination in the form of denial of access to health services, education and livelihood options.

Keeping in view the factual matrix in entirety and the submissions advanced by the petitioner, the Court thought it appropriate to issue various directions to the Union and the States, which, inter alia, include:-

  • Periodical national surveys for determining the prevalence rate and new cases detection rate of leprosy;
  • Organizing massive awareness campaigns to increase public awareness about the signs and symptoms of leprosy and the fact that it is perfectly curable by the Multi Drug Therapy (MDT), every year on Leprosy day;
  • MDT drugs to be available free of cost and not to go out of stock at all Primary Health Centers (PHCs);
  • All-year awareness programs about National Leprosy Eradication Program (NLEP);
  • The awareness campaigns must include information that a person affected by leprosy is not required to be sent to any special clinic or hospital or sanatorium and should not be isolated from the family members or the community;
  • Healthcare to leprosy patients, at both Government as well as private medical institutions, must be such that medical officials and representatives desist from any discriminatory behaviour while examining and treating leprosy patients;
  • The possibility of including leprosy education in school curricula should be explored;
  • The Union and the States should endeavour to provide MCR footwear free of cost to all leprosy affected persons in the country;
  • The Union Government may consider framing separate rules for assessing the disability quotient of leprosy affected persons for the purpose of issuing disability certificate in exercise of the power granted under the Rights of Persons with Disabilities Act, 2016; etc.

The writ petition was disposed of in the terms above. [Pankaj Sinha v. Union of India,2018 SCC OnLine SC 1502, decided on 14-09-2018]

Case Briefs

Supreme Court: The Bench comprising of Ranjan Gogoi, R. Banumathi and Navin Sinha, JJ., dismissed a petition seeking guidelines on how the procedure for caesarean deliveries has to be conducted in hospitals.

Petitioner had alleged that due to lack of policy several private hospitals and maternity homes often conduct unnecessary C-section deliveries in order to make money.

The Supreme Court on perusal of the petition under Article 32 of the Constitution of India stated it to be an attempt to abuse the process of Court. Further, the petitioner was imposed with a token cost of Rs 25,000 in the Supreme Court Bar Association.  Therefore, the petition was further dismissed. [Reepak Kansal v. Union of India, WP (C) No. 826 of 2018, order dated 03-08-2018]

Case BriefsSupreme Court

Supreme Court: Deciding the matter regarding the Court’s power to remit or pardon, the bench of Dipak Misra and Shiva Kirti Singh, JJ held that the argument that when a pardon or remission can be given under Article 72 or 161 of the Constitution by the constitutional authority, this Court can exercise the similar power under Article 32 of the Constitution of India is absolutely based on an erroneous premise. It further said that Article 32 of the Constitution can be only invoked when there is violation of any fundamental right or where the Court takes up certain grievance which falls in the realm of public interest litigation.

In the present case, the petitioner convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), had prayed for the issue of writ of mandamus commanding the Government to grant remission to them. It was contended that Chapter XIX of the New Punjab Jail Manual, 1996 lays down remission and award to the convicts depending upon good conduct and performance of duties allotted to them while they are undergoing sentence, but the benefit under the Chapter XIX of the Manual is not made available to the convicts under the NDPS Act on the ground that Section 32-A of the NDPS Act bars entitlement to such remission. However, it was further contended that the constitutional validity of Section 32-A of the NDPS Act and Section 433-A CrPC has been upheld in Dadu v. State of Maharashtra, (2000) 8 SCC 437 and Maru Ram v. Union of India, (1981) 1 SCC 107, respectively, and that the said provision does not come in the way of executive for exercising the constitutional power under Article 72 or 161 of the Constitution, hence, the denial to grant remission is totally arbitrary.

The Court, hence, held that the constitutional power engrafted under Articles 72 and 161 of the Constitution is different than the statutory power enshrined under Section 433-A CrPC. The petitioners do not have a right to seek remission under the Code because of Section 32A of the NDPS Act. However, they can always seek relief either under Article 71 or 161 of the Constitution, as the case may be, as it is in a different domain. Stating that the Article 32 of the Constitution of India enables a citizen to move this Court for enforcement of his fundamental rights, the Court held that the argument to invoke Article 142 in conjunction with Article 32 of the Constitution is absolutely fallacious. [Tara Singh v. Union of India, 2016 SCC OnLine SC 631, decided on 29.06.2016]