Tryst with the Constitution: The Constitution envisages Articles 32 and 226 as concurrent, not sequential

Last month, a bench of the Supreme Court presided over by Chief Justice of India Surya Kant refused to entertain a petition filed under Article 32 of the Constitution seeking directions against the Chief Minister of Assam for alleged hate speech.

In its order, the bench relegated the petitioners to the Gauhati High Court and, in oral observations, deprecated the practice of petitioners directly approaching the Supreme Court under Article 32 without first approaching the High Courts under Article 226.

This order brings back into focus the conundrum of Article 32 and 226 – the respective powers of the Supreme Court and the High Courts to issue writs for violation of fundamental rights – and whether these powers are, in fact, concurrent or sequential, as suggested by this bench.

The making of the Indian Constitution was marked by extensive debate and deliberation on each of its features, including the writ jurisdiction of the Supreme Court and the High Court. While there was broad agreement on the necessity of such jurisdiction, there were divergent views on the institutional design – specifically, which court should exercise these powers and in what manner.

One school of thought, led by Benegal Narsing Rau, proposed that writ jurisdiction should be confined to the High Courts, which would issue appropriate writs for the violation of fundamental rights within their territorial jurisdiction when approached by an aggrieved party. Rau suggested that rather than conferring a separate and concurrent original jurisdiction on the Supreme Court, it should exercise only appellate jurisdiction in such matters. In other words, an aggrieved person would first approach the High Court and if dissatisfied with the remedy, could file an appeal before the Supreme Court.

In the notes accompanying his draft Constitution, Rau observed:

“If the application fails, the applicant can appeal to the Supreme Court under clause 93, because any violation of the fundamental rights guaranteed by the Constitution would necessarily raise a question of interpretation of the Constitution and thus attract the appellate jurisdiction of the Supreme Court. In such a case, therefore, it seems unnecessary to give the Supreme Court a separate power to issue a habeas corpus direction: the power given to the High Court and the right of appeal to the Supreme Court should be sufficient for all practical purposes.”

This view found support among members such as VT Krishnamachari, BH Zaidi, Sardar Singhji of Khetri and Sardar Jaidev Singh, who expressed similar concerns in their comments on the Draft Constitution.

However, Rau’s proposal was not accepted by either the Fundamental Rights Sub-Committee chaired by Acharya JB Kripalani, or the Drafting Committee led by Dr BR Ambedkar. Both committees favoured vesting concurrent jurisdiction in the Supreme Court and the High Courts, although there remained some disagreement over the scope of such powers.

Sir Alladi Krishnaswami Ayyar, a member of the Fundamental Rights Sub-Committee, was of the view that concurrent powers should be limited to the writ of habeas corpus. In the Sub-Committee’s meeting on March 29, 1947, he proposed:

“If a complaint was made that any person was unlawfully detained, every High Court and the Supreme Court, and every judge of these courts should forthwith enquire into it.”

Ayyar’s position was informed by concerns regarding overcrowding of dockets, particularly the possibility of the Supreme Court being burdened with a large volume of applications. He, therefore, suggested that the Court should exercise concurrent original jurisdiction only in habeas corpus matters, while retaining appellate or revisional jurisdiction in respect of other writs.

The Drafting Committee, however, did not accept either Ayyar or Rau’s proposals. The draft Constitution instead provided for concurrent jurisdiction in both the Supreme Court and the High Courts, empowering them to issue appropriate writs for the enforcement of fundamental rights without requiring a sequential approach.

Notably, even in his response to the comments on the Draft Constitution, Rau emphasised his preference for a sequential approach, observing that an aggrieved individual must first approach the High Court and if petitions are filed directly before the Supreme Court, they must be relegated to the High Court. This position was not adopted in the Constitution and the final scheme instead preserved the option of approaching either the Supreme Court or the High Courts for the enforcement of fundamental rights.

The precise relationship between Articles 32 and 226 came before the Supreme Court within the first few months of the enactment of the Constitution. On March 1, 1950, the Government of Madras issued an order banning the weekly journal ‘Cross Roads’, which was challenged by its publisher before the Supreme Court under Article 32 on the ground that it violated the right to free speech and expression (Romesh Thappar v. State of Madras).

The respondents raised a preliminary objection, contending that the petitioner should have first approached the High Court under Article 226. This objection was categorically rejected. The Court observed:

“Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights.”

In doing so, the Court affirmed the constitutional design that remedies under Articles 32 and 226 are concurrent and not subject to any mandatory sequential ordering. This position has been reiterated in subsequent decisions like Kavalappa Kottarathil v. State of Madras (1959).

However, there have been occasional departures from this position, where benches have insisted on a sequential reading of the provisions and directed petitioners to approach the High Courts in the first instance. (See, State of West Bengal v. Ratnagiri Engineering Private Limited, 2009; Abhishek Kumar Singh v. G Pattanaik, 2021)

For instance, in Union of India v. Paul Manikam (2003), the Court observed:

“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.”

The judgment in Romesh Thappar is the correct and binding interpretation of the relationship between Articles 32 and 226. It is consistent with the intent of the Constituent Assembly and, having been delivered by a Constitution Bench, is binding on subsequent benches. Therefore, any subsequent decision by a smaller bench that departs from the judgment is technically per incuriam.

If the Court is to adopt a different interpretation of the relationship between Articles 32 and 226, it ought to do so through the proper route of a Constitution Bench as required under Article 145(3), which mandates consideration of any “substantial question of law as to the interpretation of the Constitution”.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.