Comment: Right to Constitutional Remedies under Article 32 of the Indian Constitution and application of the principle of Res Judicata. (1999, 20 Marks)
Article 32 makes the remedy itself a fundamental right; res judicata (a matter already adjudged), codified for civil suits in Section 11 of the Code of Civil Procedure, insists that a question once finally decided stays decided. Can a guaranteed right be lost because a court has already spoken? Indian law answers yes, in calibrated measure.
Article 32: a right, not a discretion
- Clause (1) guarantees the right to move the Supreme Court for enforcing Part III; (2) arms it with directions, orders and writs; (4) bars suspension save as the Constitution provides.
- B. R. Ambedkar called it the article without which the Constitution “would be a nullity”, its very heart and soul (Constituent Assembly, 9 December 1948).
- Romesh Thappar v. State of Madras (1950) made the Court the “protector and guarantor” of fundamental rights, and K. K. Kochunni (1959) held that an alternative remedy is no ground for refusing relief.
How res judicata entered writ jurisdiction
In Daryao v. State of U.P. (1961), P. B. Gajendragadkar J. treated the binding force of judgments as part of the rule of law itself: a public-policy rule, not a procedural technicality that Article 32 could brush aside.
| Prior proceeding | Effect on a later Article 32 petition |
|---|---|
| High Court decision on merits under Art. 226, not appealed | Barred on the same facts (Daryao) |
| Dismissal in limine without reasons, for laches, for an alternative remedy, or on withdrawal | No bar — nothing was adjudicated |
| Grounds that could have been pleaded earlier | Barred as constructive res judicata (Devilal Modi, 1965) |
| Bona fide public interest litigation already decided | Binds the public at large (Forward Construction Co., 1986) |
| The Supreme Court’s own final judgment | No Art. 32 petition lies (Rupa Ashok Hurra, 2002, applying Mirajkar, 1966); only review or curative |
The habeas corpus exception
- In Ghulam Sarwar v. Union of India (decided December 1966), a five-judge bench led by K. Subba Rao CJ held that a High Court’s refusal of habeas corpus does not bar a fresh petition in the Supreme Court; Lallubhai Jogibhai Patel (1980) added that constructive res judicata cannot shut out new grounds.
- Unlawful detention is a continuing wrong. A. V. Dicey judged the Habeas Corpus Acts, though declaring no principle, “worth a hundred constitutional articles guaranteeing individual liberty”. Liberty is the one place where finality yields.
Finality versus the right to a remedy
- The case for the rule: it stops forum-shopping and vexation, spares a docket that crossed 93,000 pending cases in March 2026, and reads Article 32 as a right to be heard once, not endlessly.
- The critique: a petitioner who chose the High Court first — the route the Supreme Court itself increasingly prescribes when it declines direct petitions — finds the guaranteed Article 32 route closed and must fall back on discretionary special leave under Article 136. Relegation plus res judicata can turn a right into a privilege.
- The judiciary’s safety valve: Rupa Ashok Hurra v. Ashok Hurra (2002) created the curative petition for gross miscarriage of justice — breach of natural justice or an undisclosed apprehension of bias — certified by a senior advocate and heard by the senior-most judges. Its use in DMRC v. Delhi Airport Metro Express (April 2024) to set aside the Court’s own 2021 judgment shows the valve works — and, critics warned, risks becoming a disguised second appeal.
Conclusion
Res judicata disciplines Article 32 without hollowing it: the guarantee is of an effective remedy, not of unlimited re-litigation. The design holds only with an undiluted habeas exception and restraint in relegating petitioners to the High Courts, since every relegation narrows the remedy Ambedkar placed at the Constitution’s heart.