Is The Supreme Court’s Discouragement Of Article 32 Petitions Constitutionally Sound?
Nigel C. Thomas, B.A. LL.B., SVKM’s Pravin Gandhi College of Law
ABSTRACT
The Supreme Court’s decision in Rutvij Bhagat Singh Wakhare v. State of Maharashtra is the latest instance of a recurring practice. The Court declined to entertain a writ petition under Article 32. It held that the petitioner had failed to establish a violation of any fundamental right and redirected him to the jurisdictional High Court under Article 226 instead. This practice has been evident since CJI Bobde’s 2020 remarks and was repeated more recently in Hemant Soren’s petition. It sits uneasily against settled law. Article 32 has consistently been affirmed as part of the Constitution's basic structure. This is most notable in Fertilizer Corporation Kamgar Union, and in the unanimous seven-judge holding in L. Chandra Kumar, which held that this jurisdiction can never be ousted or excluded. This paper examines whether the Court's discouragement of direct Article 32 petitions is constitutionally sound. It traces the roots of this practice to Kanubhai Brahmbhatt and Paul Manickam, and tests these against Romesh Thappar's holding that Articles 32 and 226 are concurrent, and not sequential, remedies. It concludes by proposing a chamber-based screening mechanism, modelled on Germany's Bundesverfassungsgericht, to reconcile docket pressure with the guaranteed nature of the remedy.
