Discouraging Article 32 Habeas Corpus Petitions – The Legal Basis

In this article, we try and examine the basis of the court's observations that they are trying to discourage Article 32 habeas corpus petitions.

The court's observations ostensibly come from passage in Union of India v. Paul Manickam (2003) 8 SCC 342, that is often relied on by the State to defeat Article 32 habeas corpus petitions that are preferred in the first instance without going first to the High Court.

The passage in the judgment authored by Arijit Pasayat J, as part of a bench of two judges, is as follows.

"22. Another aspect which has been highlighted is that many unscrupulous petitioners are approaching this Court under Article 32 of the Constitution challenging the order of detention directly without first approaching the High Courts concerned. It is appropriate that the High Court concerned 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 the 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 in such matters directly under Article 32 of the Constitution is to be discouraged."

On the face of it then, the court is just following a precedent and the law laid down in an earlier case. However, on a closer examination, it becomes clear why this passage in Paul Manickam ought to not have any value as a precedent at all, notwithstanding it being part of a pronouncement of the highest court of the land.

First, the Paul Manickam decision arose in the contest of a Special Leave Petition filed under Article 136 challenging a judgment of the High Court under Article 226 quashing a preventive detention order. The scope and ambit of the right under Article 32 to challenge detention orders and to seek a habeas corpus writ was not in issue at all. It is settled law that only the ratio decidendi of the court is a precedent and observations that have no nexus with the issue that is being decided in a case have no precedential value.

Second, the Court in Paul Manickam neither considered nor distinguished prior constitution bench judgments that have expressly held that Article 32 is the right and prerogative of the petitioner and that the petitions cannot be dismissed merely because the petitioner did not approach the High Court first. The unambgious decision of Das CJ writing for himself and three others as part of five-judge bench in K.K. Kochunni v. State of Madras 1959 Supp (2) SCR 316 considered the issue and had this to observe.

"8. Shri Purshottam Tricumdas appearing for some of the respondents has taken a preliminary objection as to the maintainability of the petitions. The argument in support of his objection has been developed and elaborated by him in several ways. In the first place, he contends that the petitions, insofar as they pray for the issue of a writ of mandamus, are not maintainable because the petitioners have an adequate remedy in that they can agitate the question now sought to be raised on these petitions and get relief in the pauper suit filed by one of the respondents after the passing of the impugned Act. This argument overlooks the fact that the present petitions are under Article 32 of the Constitution which is itself a guaranteed right. In Rashid Ahmed v. Municipal Board, Kairana [1950 SCR 566.] this Court repelled the submission of the Advocate-General of Uttar Pradesh to the effect that, as the petitioner had an adequate legal remedy by way of appeal, this Court should not grant any writ in the nature of the prerogative writ of mandamus or certiorari and observed:

"There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Article 32 are much wider and are not confined to issuing prerogative writs only."

Further, even if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Article 226 of the Constitution, as to which we say nothing now — this Court cannot, on a similar ground, decline to entertain a petition under Article 32, for the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution is itself a guaranteed right. It has accordingly been held by this Court in Romesh Thappar v. State of Madras [1950 SCR 594] that under the Constitution this Court is constituted the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking the protection of this Court against infringement of such rights, although such applications are made to this Court in the first instance without resort to a High Court having concurrent jurisdiction in the matter. 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 a breach, actual or threatened, of such right is alleged and is prima facie established on the petition."

The extended context given in the earlier quote is to labour the point that the issue of the Court's powers to throw out Article 32 petitions on the ground that the petitioner has not approached the high court first or has not tendered adequate explanation for not approaching the high court first actually arose in Kochunni and the decision . The matter however does not end there.

There is perhaps one argument that could be made – that is, Paul Manickam was specific in the context of habeas corpus writs which are distinct from other Article 32 petitions – to the extent that a second habeas corpus petition to the Supreme Court under Article 32 can be preferred even if a 226 writ is denied. (In fact, habeas corpus petitions are considered a species of their own (see Dharyao v State of U.P. AIR 1961 SC 1457). This is unlike other kinds of writs wherein once 226 jurisdiction of the high court is invoked, an article 32 petition ceases to be maintainable, being hit by the doctrine of res judicata. The distinction becomes germane because 32 and 226 are mutually exclusive for a person in other types of writs, and there is no such problem with a habeas corpus writ and therefore there is no real denial of Article 32 remedy even if the petitioner is directed first to approach the High Court under Article 226. However, for such distinction to be proper in law, it has to come through a judicial pronouncement that clearly distinguishes, clarifies or overrules the previous constitution bench judgments by larger bench or atleast of a bench that is coordinate strength – in a matter that this question actually arises.

Moreover, the rationale behind non-applicability of res judicata to habeas corpus petitions is the consideration of paramountcy of personal liberty as a protected constitutional right and the role of the court as its protector (Ghulam Sarwar v Union Of India AIR 1967 SC 1335, 5-Judge bench, Subbarao CJ). That being the case, it is not immediately apparent why that distinction that was made to more effectively protect personal liberty ought to be understood to serve as a distinction to defeat the interests in the case of dealing with an Article 32 Petition for habeas corpus preferred in the first instance.

The third argument that can perhaps be advanced is a favourite of the State in not just habeas corpus cases, but many other Article 32 petitions. That is, the consideration of the court's docket and the workload of the Supreme Court and it being a good policy to have persons approach the High Court first so that flood gates of litigation in Supreme Court don't open.

Apart from this argument having no independent standing in light of Article 32 being a fundamental right in itself and the Supreme Court's own holding of its lack of discretion to entertain or refuse Article 32 petitions so long as there is a fundamental right asserted and infringement claimed in the petition, it also suffers on another count. The writ docket in the supreme court is a miniscule fraction of its workload. In 2019 for instance, only 1947 Writ Petitions were registered in the Supreme Court, as against more than 42000 Special Leave Petitions under Article 136. This is despite the remedy under Article 136 being a discretionary one and the remedy under Article 32, a matter of right. The Court's humongous workload in its discretionary jurisdiction cannot rationally be used to defeat its duty to entertain petitions under Article 32. Moreover, it is in fact the State's own failure that it has not created more courts to supplement the Supreme Court in exercising Article 32 jurisdiction, which it is empowered to do under Clause (3) of that article – something that the courts ought not to allow the State to take advantage of.

This leads us to another syndrome that has afflicted not just our court, but also those that comment on the court. That is the clamour to rush to brand writ petitions – particularly public interest litigation as frivolous or unworthy of the supreme court's time and indeed exhorting the court to dismiss such petitions with costs : missing totally the prerogative and the right of every citizen under Article 32 to bring claims to the Supreme Court. The social cost of guaranteeing such a remedy is necessarily that there will from time to time be causes that are objectively and truly unworthy of the Supreme Court's time. But the answer to that cannot be making Article 32 a discretionary remedy akin to Article 136 where the court can on a whim decide whether or not the complained of cause is worthy of its time and attention.

Some of the court's recent orders imposing costs on a petition that sought to protect artifacts found during the Ayodhya excavation, or the refusal to entertain the petition that sought a declaration epidemic act as unconstitutional and asking the Petitioner to approach the high court first – are clearly not in keeping with the letter and the purpose of Article 32 being a guaranteed right.

If Article 32 were to be realised as a guaranteed right, the court ought to ordinarily not dismiss such petitions in limine and whenever it does, it must do so with a speaking order showing how the petition discloses no cause of action – i.e. it does not claim a fundamental right being engaged or that it does not claim of an infringement of that right.