Saturday, April 4, 2009

Legally speaking

Can Supreme Court judgment be challenged in HC?
Naseer A Ganai
Srinagar, Apr 2: The High Court Bar Association (HCBA) decision to challenge the judgment of Supreme Court on available grounds in Muhammad Salim versus Nirmala Convent Higher Secondary School case in which the Apex Court had dismissed a Muslim boy’s plea to sport beard while attending the school has opened a legal debate whether the Supreme Court judgment could be challenged in the High Court through a writ petition.
“Yes, the SC judgment can be challenged on the available grounds and we would be filing a writ petition in the High Court to challenge the judgment in Muhammad Salim versus Nirmala Convent Higher Secondary School case in the High Court,” says HCBA president Mian Abdul Qayoom.
“To understand the issue first we should see Article 32 and the Article 226 of the Constitution of India,” he said.
Articles 32 and 226 are the provisions of the Constitution that together provide an effective guarantee that every person has a fundamental right of access to courts. Article 32 confers power on the Supreme Court to enforce the fundamental rights. It provides a guaranteed, quick and summary remedy for enforcing the fundamental rights because a person can go straight to the Supreme Court without having to go undergo the dilatory process of proceeding from the lower to higher court as he has to do in other ordinary litigation. The Supreme Court is thus constitution the protector and guarantor of the fundamental rights.
The High courts have a parallel power under Article 226 to enforce the fundamental rights. Article 226 differs from Article 32 in that whereas Article 32 can be invoked only for the enforcement of fundamental rights, Article 226 can be invoked not only for the enforcement of fundamental rights but for any other purpose as well. This means that the Supreme Court’s power under Article 32 is restricted as compared with the power of a High Court under Article 226, Qayoom said.
In 1988 he said in A.R Antualy case the Supreme Court said a final Supreme Court judgment can be assailed via writ petition under article 32 in the Apex Court.
In 1992 the Constitutional Bench of the Supreme Court held that no writ under the Article 32 of the Constitution of India can lie against the final judgment of the Supreme Court. The Court however in its judgment said A. R Antualy case couldn’t be made be precedent for filing a writ in the Supreme Court.
In 1999, the matter was referred to the Constitutional Bench of the Supreme Court. In this matter in 2002 the Court held the writ petition under article 32 will not lie before the Supreme Court against the final judgment when review filed against it has been also dismissed.
It however said the curative petition is maintainable. The curative petition against the review petition is sent to the senior judges and the bench that has heard the case and if they ask for reconsideration then the case would be heard by the same bench that has passed the judgment.
Qayoom said that in all these cases the Supreme Court has not discussed whether HC can interfere with the order passed by the Apex Court in exercise of its powers under article 226 of the Constitution of India.
He said in Rubiya Sayeed kidnapping case the Government of India through CBI approached the Chief Justice of the Supreme Court of India to transfer the case from JK to another State. The CBI had pleaded that the case should be transferred to another state owing to the disturbance in Jammu and Kashmir.
The Chief Justice, he said directed the Government of India to shift the case to the TADA Court Ajmar. In compliance with the CJ’s directions, the Government of India issued a notification to transfer the case. However in JK a writ petition was filed in the High Court to challenge the order of the Government of India.
Qayoom said in the case known as Javid Ahmad Zargar and others versus Union of India the single bench of the High Court comprising Justice A.M Mir stayed Government of India order.
Later, in the same matter, the division bench of the High Court comprising Justice V.K Gupta, Justice G.D Sharma quashed the notification of the government of India and directed it to reconsider the matter. He said it shows the HC has entertained the petition challenging the order of the CJ. In the same manner, he said, HCBA was going to file writ petition in the High Court to challenge the Apex Court order under Article 226.
However former advocate general of the State D.C Raina differs with the view of Mian Abdul Qayoom. Raina said the judgment of the Supreme Court or of the Coordinate Bench can not be challenged through a writ petition in the High Court. He said there is no question of the SC judgment can be challenged under 226 in the High Court. “The judicial review of the judgment of the supreme court can’t be permitted through the high Court. “It is not possible,” he said.
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