Anurag Tomar & Associates

 

The Jurisdictions of Supreme Court under Article 32 of the Constitution of India and  of different High Courts in India under Article 226 of Constitution   are original in nature and writ Petition directly lies to Supreme Court or High Courts,according to relief sought under Article 32 or 226 of the Constitution of India.The difference between the jurisdiction of Supreme Court under Article 32 and that of a High Court under Article 226 of the Constitution is that a Writ Petition before Supreme Court, under Article 32 lies only for enforcement of a fundamental right,while a Writ Petition before a High Court has a wider scope and a fundamental as well as ordinary legal right can be enforced by  means of a Writ Petition before a High Court under Article 226 of the Constitution of India.
Thus as regard to the enforcement of fundamental rights,the jurisdictions of the Supreme Court under Article 32 and that of a High Court under Article 226 are concurrent.However in recent cases the Supreme Court have discouraged Petitions under Article 32,without first resorting to the High Court under Article 226 of the Constitution.According to Shri S R Singh,Senior Lawyer Supreme Court, this approach of Supreme Court is contrary to Constitutional Scheme in as much as when the Constitution gives an option to a Litigant to either approach Supreme Court under Article 32 or the High Court, concerned under Article 226,the Supreme Court cannot relegate a Petitioner to avail the alternative remedy under Article 226 of the Constitution.
I have recently filed Writ Petion(civil)No-382 of 2009 Titled,Harish Kumar & others vs State of Uttrakhand & others before Supreme Court under Article 32 of the Constitution,on behalf of the Kiosks(Khokha)holders near the bank of Ganga river in Haridwar,seeking direction against State Government to the effect that the Kiosks holders may not be dispossesed from the site they have been running their small scale business for last 30-40 years, without providing alternative site.The said writ Petition was filed for enforcement of fundamental rights provided under Article 14,19 and 21 of the Constitution.The case of these Kiosks holders was based upon proposition of Law laid down by Constitution bench of the Supreme Court in Sudan singh vs State of Delhi,wherin street trading has been recognized as a fundamental right by the Constitution bench of Supreme Court,subject to certain restriction by the state.However without going into the merit of the case the Supreme Court by its order dated 30-11-2009 after hearing the submissions made by me and Senior Counsel Shri S R singh disposed of the writ Pettion as withhdrawn while giving liberty to Petitioner to file appropriate Writ Petition before the High Court,concerned.

The sole object of Article 32 of the Constitution of India is the enforcement of fundamental right guaranteed by the Constitution. Whatever other remedies may be open to a person aggrieved, he has no right to invoke the jurisdiction of Supreme Court under Article 32 of the Constitution when no 'fundamental' right has been infringed. Thus no question other than relating to a fundamental right can be determined under Article 32 of the Constitution of India. A writ under Article 32 would not lie for enforcement of government policy or a Directive Principle.