Recently there was a controversy involving Mukhtar Ansari, the BSP MLA from Uttar Pradesh who is currently lodged in a jail in Punjab. The controversy arose when the State of U.P. filed a Writ Petition against the State of Punjab under Article 32 of the Constitution of India seeking his transfer from Punjab to Uttar Pradesh. It has brought to the fore a few significant substantial questions of law in relation to the interpretation of the Constitution of India:
- Whether State (Specifically Government) can be considered as an “aggrieved person” so as to file to Writ Petition under Article 32 of the Constitution of India?
- Whether State (Specifically Government) enjoys any “right” or under Indian law and even if it does then whether the same can be enforced by way of filing a Writ Petition under Article 32 of the Constitution of India?
Turning to the first question, it is relevant to note that it is a well settled law that when a person is not an “aggrieved person” (except in cases of Public Interest Litigation), the person is not competent to file Writ Petition challenging the action. However, before we cast a shadow on the question that whether “State” comes under the ambit of “aggrieved person”, it is vital to find out whether State comes under the ambit of “person” per se. The word “person” is not defined under the Indian Constitution, not even under its definition clause enumerated under Article 366. Though, According to Article 367, the definition provided under General Clauses Act, 1897 can be taken into consideration. Section 3 (42) of the General Clauses Act, 1897 defined person as “person shall include any company or association or body of individuals, whether incorporated or not”.
Further, the Hon’ble Supreme Court in the case of Krishnan & Anr. vs Krishnaveni & Anr, (1997) 4 SC 241, analyzing the revision power of the High Court under Section 397 of CrPC, held that, by implication the State stands excluded from the purview of the word ‘person’ for the purposes of limiting its right to avail the revisional power of the High Court under Section 397 (1) of the code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper.
Further, the question that who is an “aggrieved person” who can file writ petition was elaborately dealt in the case of Jasbhai Motibhai Desai Vs Roshan Kumar, (1976) 1 SCC 671 where the Hon’ble Supreme Court observed, which is as follows:
“Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person “against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something”? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of-the words “person aggrieved” is being considered. a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?”
The said case also nowhere stated that “State” can come under the ambit of “aggrieved person”. It is submitted that the Hon’ble Supreme Court hardly had any occasion to scrutinize the relevant judicial pronouncement on that score. Further, no judicial pronouncement of the High Court in this regard too has been traced by me. Though there are cases decided by the Hon’ble Supreme Court of India where the writ was filed by the State Government before Hon’ble High Court and Supreme Court against independent public body such as Election Commission and Hon’ble High Court decided the controversy involved. Matter was taken by Hon’ble Supreme Court though there was no adjudication of the present issues raised [Reference: Election Commission Vs State of Haryana, 1984 (Supp.) SCC 104 (Para. 4); State of M.P. Vs Babulal, (1977) 2 SCC 435; State of Orissa Vs UOI, 1995 (Supp-2) SCC 154]. Thus, the said cases cannot be taken as precedent for present purpose.
I, being the student of Constitution Law, understand that limiting the scope of “aggrieved person” under Article 32 or Article 226 is an orthodox view but it still continues to be a general rule. I learnt that exceptions on specific grounds have been admitted in some cases but those were “exceptions”.
Turning to the second question, it is relevant to note that the remedy provided under Article 32 can be exhausted only for the enforcement of fundamental rights. Thus, the existence of a fundamental right and the infringement thereof, are the foundation of the exercise of the jurisdiction under Article 32.
Article 32 of the Constitution of India is meant to ensure observance of the rule of law and prevent abuse or misuse of power. It is designed to ensure that each and every authority in the State, including the Government, acts bona-fide and within the limits of its powers and that when a court is satisfied that there is an abuse or misuse of power, it is incumbent on the court to afford justice to the individual (S. Pratap Singh Vs. State of Punjab, AIR 1964 SC 72). The fundamental right to move the Hon’ble Supreme Court can be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. The Hon’ble Supreme Court in the case of Prem Chand Garg vs. Excise Commissioner, U.P., AIR 1963 SC 996 held that in discharging duties assigned to the court, the Supreme Court has to play the role of a ‘sentinel on the qui vive’ and it must always regard it as it’s solemn duty to protect the said fundamental rights ‘zealously and vigilantly’.
It must be remembered that the right to move the Supreme Court guaranteed under Clause (1) of Article 32 is subject to conditions of “appropriate proceedings”. Article 32 (1) provides: “The right to move the Supreme Court by “appropriate proceedings” for the enforcement of the rights conferred by this part is guaranteed. There is no freedom to move the Supreme Court by all sorts of proceedings, but only by way of “appropriate proceedings”. What does “appropriate proceedings” mean? This has reference to Clause (2) of Article 32. Only those proceedings are appropriate which invoke, by the original petition the jurisdiction of the Supreme Court to issue, according to the nature of the case, writs or orders or directions of the types described in clause (2) of Article 32. It was held in the case of Bandhua Mukti Morcha vs. Union of India, (1984) 3SCC 161 that the expression ‘appropriate proceedings’ has reference to the proceedings which may be appropriate having regard to the nature of the order, direction or which the petitioner seeks to obtain from the court. The appropriateness of the proceedings would depend upon the particular writ or order which he claims, and it is in the sense that the right has been conferred on the citizen to move the Supreme Court by appropriate proceedings. The Supreme Court further clarifies that there is ‘no limitation’ in regard to the kind of proceedings, envisaged in clause (1) of the Article except that the proceedings must be appropriate, and the requirement of appropriateness must be judged in the light of the purpose for which the proceedings is to be undertaken, namely, enforcement of fundamental right. The word ‘appropriate’ does not refer to any form, but to the purpose of the proceedings and therefore so long as the purpose of the proceedings is enforcement of fundamental rights, it is appropriate and when it relates to the enforcement of the fundamental rights of the poor, disabled or ignorant by a public-spirited person, even a letter addressed by him (to the court) can legitimately be regarded as an “appropriate proceeding”.
According to the Indian Constitutional framework and basic jurisprudence laid behind this, it is evident that ‘State’ (Government in present case) does not enjoy any ‘right’ except as given under Article 131 of the Constitution of India. It enjoys ‘power’. It, in the exercise of its power, protects the rights and liberties of the people. Since it does not enjoy any ‘right’ except as mentioned under Article 131, thus, the question of violation of its right does not arise.
However, sometimes it is possible that the legal rights of a State (a legal entity under Article 300) would be affected by another legal entity. So far as another State of Union of India is concerned, the remedy, in such cases, is exclusively laid down in Article 131 by the suit before Supreme Court. Thus, the recourse of Article 131 can be taken when its right is violated by another State instrumentality [Reference: State of Rajasthan Vs UOI, AIR 1977 SC 1361 (Paras. 106, 114, 117, 133, 157, 165, 188, 192); State of Karnataka Vs UOI, AIR 1978 SC 68 (Paras. 141,149, 195, 203).
However, there are a few instances where the Hon’ble Supreme Court entertained a writ petition under Article 32 where no question of infringement of a fundamental right was involved. The Supreme Court in the case of Aruna Shanbaug vs UOI, AIR 2011 SC 1290 entertained a writ petition under Article 32 on the ground that the case involved issue of law. The Supreme Court in the case of D.C. Wadhwa vs State of Bihar, AIR 1987 SC 579 entertained the writ petition under Article 32 on the ground it involved the question of law relating to interpretation of the Constitution of India. Recently the Hon’ble Supreme Court in its judgement dated 13.11.2019 in the case of Shrimanth Balasaheb Patil Vs. Hon’ble Speaker, Karnataka Legislative Assembly And Others, WP 992 of 2019 entertained the Writ Petition filed by 14 MLAs of Karnataka against the decision of the Karnataka Legislative Assembly even where there was no violation of fundamental rights.
However, the said instances are confined to the petition filed by the individuals or persons and not by the State itself. The jurisprudence behind Article 32 and Article 226 has always been “Writ petition by the people against State” and not “Writ Petition by the State against the People or against another State”. It was an act of great wisdom and foresight on the part of the Constitutional makers to introduce the writ system in India under Article 32 and Article 226 and thus, constitutes the Supreme Court and High Courts into guardians of the people’s legal rights and not that of the “State’s”. Thus, it will be interesting to see in the coming time if the Hon’ble Supreme Court lays down the law in relation to the writ petition filed by the State against other State government.
Pawan Reley is an advocate practicing at the Supreme Court of India.Disclaimer: The views or opinions expressed are solely of the author.