Delay By Itself Cannot Veto A Writ Petition Under Article 32 When Fundamental Rights Are Clearly At Stake : Supreme Court

While quashing notification issued by Bihar Government that approved issuance of Scheduled Tribe Caste certificate to Lohar community, the Supreme Court observed that that the delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake.

In this case, Sunil Kumar Rai and others approached the Apex Court challenging the notification issued by Bihar Government in 2016 . They contended that the Lohar community in Bihar is not entitled to be treated as members of the Scheduled Tribe. They also submitted that, relying upon these certificates which were issued, proceedings have been initiated against them under the provisions of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities Act), 1989. In response, the State raised a technical objection that there is a delay of about five years in seeking protection under Article 32 of the Constitution as the impugned Notification was issued in the year 2016.

The court noted that ordinarily, the Court may insist on a cause of action and therefore, a person must be an aggrieved party to maintain a challenge. 

"A person cannot be said to be aggrieved merely upon the issuance of an instrument or of a law by itself. In fact, the Court may refuse to examine the legality or the validity of a law or order on the basis that he may have no locus standi or that he is not an aggrieved person. No doubt, the Courts have recognized challenge to even a legislation at the hands of a public interest litigant. However, we may only indicate, ordinarily, the Court may insist on a cause of action and therefore, a person must be an aggrieved party to maintain a challenge."

The bench, thereafter, referred to the judgment in Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors. (2015) 3 SCC 1, in which it was observed thus: "When it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner."

"Therefore, we do not think we should be detained by the objection. We would think that delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake.", the bench observed. The court also rejected the contention that the petitioners ought to have approached the High Court first. In this context, the court observed:

"Article 32 of the Constitution provides for a Fundamental Right to approach the Supreme Court for enforcement of the Fundamental Rights. The founding fathers 7 contemplated that the very right to approach this Court when there is a violation of Fundamental Rights, should be declared as beyond the reach of Parliament and, therefore, it is as a part of judicial review that the right under Article 32 has been put in place and invoked from time to time. That in a given case, the Court may refuse to entertain a petition under Article 32 of the Constitution is solely a part of self-restraint which is exercised by the Court having regard to various considerations which are germane to the interest of justice as also the appropriateness of the Court to interfere in a particular case. The right under Article 32 of the Constitution remains a Fundamental Right and it is always open to a person complaining of violation of Fundamental Rights to approach this Court. This is, no doubt, subject to the power of the Court to relegate the party to other proceedings"

Headnotes

Summary : Writ Petition Challenging Bihar Government notification approving issuance of caste certificate to Lohar community - Allowed -  Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar - Lohar is not same as Lohara. Including Lohars alongside 'Lohara' is clearly illegal and arbitrary - State to pay costs of Rs. 5 Lakhs to the petitioners.

 Constitution of India, 1950 - Article 32 - Delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake. (Para 9)

Constitution of India, 1950 - Article 32 - The court has power of grant of compensation in the case of violation of Fundamental Rights. (Para 29)

Constitution of India, 1950 - Article 32 - Ordinarily, the Court may insist on a cause of action and therefore, a person must be an aggrieved party to maintain a challenge - A person cannot be said to be aggrieved merely upon the issuance of an instrument or of a law by itself. In fact, the Court may refuse to examine the legality or the validity of a law or order on the basis that he may have no locus standi or that he is not an aggrieved person. No doubt, the Courts have recognized challenge to even a legislation at the hands of a public interest litigant. (Para 9)

Constitution of India, 1950 - Article 32 - In a given case, the Court may refuse to entertain a petition under Article 32 of the Constitution is solely a part of self-restraint which is exercised by the Court having regard to various considerations which are germane to the interest of justice as also the appropriateness of the Court to interfere in a particular case. The right under Article 32 of the Constitution remains a Fundamental Right and it is always open to a person complaining of violation of Fundamental Rights to approach this Court. This is subject to the power of the Court to relegate the party to other proceedings. (Para 7)

Constitution of India, 1950 - Article 14 - Right to equality. The right against unfair State action is part of Article 14. Unequals being treated equally is tabooed under Article 14 of the Constitution. (Para 8)

Constitution of India, 1950 - Article 21 - While liberty is a dynamic concept capable of encompassing within it a variety of Rights, the irreducible minimum and at the very core of liberty, is freedom from unjustifiable custody. (Para 8)

Constitution of India, 1950 - Article 342 - A person entitled to be treated as a member of Scheduled Tribe under Article 342, cannot be treated on par with a person who is brought in by an incompetent Body, viz., the State in the manner done.  (Para 8)

Constitution of India, 1950 - Article 141 - Executive Decisions -  When it comes to taking decisions which affect the rights of the citizens, it is the paramount duty of the Executive to enquire carefully about the implications of its decisions. At the very minimum, it must equip itself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land -Respect for the decisions of the Courts holding the field are the very core of Rule of Law. Disregard or neglecting the position at law expounded by the Courts would spell doom for a country which is governed by the Rule of Law (Para 22, 23)

Case : Sunil Kumar Rai vs State of Bihar | WPC 1052 OF 2021 | 21 Feb 2022

Citation: 2022 LiveLaw (SC) 219 

Coram: Justices KM Joseph and Hrishikesh Roy

Counsel: Adv S K Rai for the petitioners, Sr. Adv Ranjeet Kumar, Adv Azmat Hayat Amanullah for state

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