The first paragraph of an article should announce the question. What does the recent jurisprudence of the Hon'ble Supreme Court on Article 32 tell us — practically — about how a writ petitioner should plead their case today? Three threads run through the cases of the last two years. This note takes them in turn.
I. The locus question, re-examined
In a series of orders, the Hon'ble Court has reiterated that Article 32 is itself a fundamental right under Part III of the Constitution. See Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161. The Court has, however, also been increasingly attentive to the locus standi of petitioners — distinguishing between matters of public-interest concern, where representative standing is appropriately wide, and matters of private grievance dressed up in constitutional language.
The practical lesson for the drafter is straightforward: identify the petitioner's stake clearly in the opening paragraphs of the writ.
II. Article 142 as a tool, not a panacea
Article 142 of the Constitution gives the Hon'ble Supreme Court the power to pass any order necessary for doing "complete justice." The Court's recent orders show a careful re-articulation of when this power is appropriately invoked.
- It is not a substitute for statutory remedies that remain open to the litigant.
- It is not to be used where the order sought would amount to legislation by judicial directive.
- It is most readily exercised where the equities and the public interest converge.
"The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are 'complementary' to those powers which are specifically conferred…"
— Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409
III. Pleading discipline
A consistent theme is the importance of pleading discipline. Several recent unreported orders have flagged the use of generic constitutional language as a substitute for fact-specific pleadings. The Court is more responsive to petitions that:
- Identify the right or rule said to be infringed.
- State the facts giving rise to the infringement.
- Cite authority — statute and judgment — for the relief sought.
- State the prayer in concrete, enforceable terms.
Conclusion
For the practising advocate, the takeaway is what it has always been: discipline at the threshold of pleading and an honest assessment of what relief the Court can — and should — grant.