1.

Whether The Writ Petition Number 2302/2018 Filed By Shazia Is

Maintainable Under Article 32 Of Constitution Of Union Of Sind?
It is humbly submitted that the writ petition No. 2302 of 2018 filed by Shazia in maintainable
under article 32 of Constitution of Union of Sind. It is contended that the petitioner has the locus
standi to file the case[1], there is violation of fundamental right[2] Supreme Court has the
jurisdiction to hear the present case[3] and alternative remedy is not a bar to maintainability.[4]

1.1THE PETITIONER HAS THE LOCUS STANDI, THAT IS, AN ENFORCEABLE

FUNDAMENTAL RIGHT IS PRESENT.

 In order to have the Locus Standi, the person of body approaching must have enforceable
fundamental rights.1 The various rights under Article 21 of the constitution are necessary
not only to promote certain basic rights of the citizens but also certain democratic values
in and the oneness and unity of the country.
 Generally, a person whose Fundamental Right is affected has standing to file a petition
under Article 32 of the Constitution. The petitioner, Shazia with the help of an NGO
'Justice for women' filed a writ petition before the Supreme Court of Union of Sind, W.P.
No. 2302 /2018 where the issues were raised before the court seeking justice for Shazia
and making marital rape an offence under the existing penal laws of Sind.
 The contention of the petitioner is that the women in the country have become vulnerable
at the hands of their husbands and with no laws present in India related to marital rape,
there is continuous threat of women’s infringement of fundamental right to life which is a
valid ground for filing of the writ petition under article 32 of constitution by petitioner for
asking for guidelines on marital rape.

1
State of Haryana v. RamKumar Mann, (1997) 3 SCC 321
 1.2 VIOLATION OF FUNDAMENTAL RIGHT

 Article 32 can be invoked only when there is an infringement of a Fundamental Right.

The violation of a Fundamental Right is the sine qua non for seeking enforcement of that
right by the Supreme Court.2In the present case, the women in the country have become
vulnerable at the hands of their husbands and with no laws present in India related to
marital rape, there is continuous threat of women’s infringement of fundamental right to
life which is a valid ground for filing of the writ petition under article 32 of constitution
by petitioner for asking for guidelines on marital rape which will infringe the
fundamental right of women’s under Article 14 and Article 21 of the Constitution.3

1.3 THE SUPREME COURT HAS THE JURISDICTION TO HEAR THE PRESENT
MATTER
 The jurisdiction of the Supreme Court under Article 32 is an important and integral part
of the basic structure of the Constitution, as it provides effective remedy for the
enforcement of the Fundamental Rights if they are violated.4 The Supreme Court is laid
with the responsibility to protect and guarantee the Fundamental Rights and therefore, it
cannot refuse to entertain applications seeking protection against infringement of such
rights.5
 The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has
been interpreted broadly6 and as one that exists independent of any other remedy that may be
available.7 This is particularly true in cases of grave public importance, such as
environmental litigation where relief may not be denied on mere technical grounds.
Consequently, it is submitted that a refusal to entertain the instant petition would be
inconsistent with the aforesaid obligation.

2
Hindi Hitrashak Samiti v. Union of India, AIR 1990 SC 851.
3
Moot proposition,page no. 21 ¶VII.
4
The Fertilizer Corporation Case, AIR 1981 SC 344.
5
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
6
MC Mehta v. Union of India, AIR 1987 SC 1086.
7
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960; Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
 1.3.1 WRIT PETITION CAN BE ALLOWED AGAINST THE IMPUGNED ORDER

 There have been instances8 where writ petition was filed against a Supreme Court order
and was entertained by it. The judiciary while exercising administrative powers is
subjected to the Fundamental Rights, but the position while adjudicating legal disputes is
not settled till now.9 However, a progressive approach was adopted in Common Cause v.
Union of India10, wherein it was observed that the judicial organ of the state is subject to
similar guidelines as a legislature and an executive, all three being integral parts of one
state within Article 12 of the Constitution. Therefore, some fundamental rights can be
enforced against it.
 There should be no hesitation in correcting an error in exercise of inherent jurisdiction if
it comes to the notice of the court,11 irrespective of the rules provided to permit the
petition.12

1.4 ALTERNATIVE REMEDY NO BAR TO MAINTAINABILITY

 Article 32 is in itself a Fundamental Right and therefore, the existence of an alternative

remedy is no bar to the Supreme Court entertaining a petition under Article 32 for the
enforcement of a Fundamental Right.13
 In Prem Chand Garg, it was held that this right is absolute and may not be impaired on
any ground.14 Further, unlike in Art. 226, the remedy provided by Art. 32 is a
fundamental right and not merely a discretionary power of the Court.15 Moreover, this
Hon’ble Court has on multiple occasions expressly rejected an argument that called for
exhaustion of local remedies.16 Therefore, it submitted that it is not open to this Court to
carve out exceptions when there are none in the text.

8
Supreme Court Bar Association v. Union of India & Anr., (1998) 4 SCC 409
9
Prem Chand Garg v Excise Commissioner, U.P. 1963 Supp. (1) SCR 885
10
2015 (7) SCC 1
11
Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.
12
Supreme Court relied upon Issac’s case (1984) 3 All ER 140 in Para 111 of AR Antuley case
13
Daryo v. State of Uttar Pradesh, AIR 1961 SC 1457
14
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996. .
15
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457; Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898.
16
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295; Romesh Thappar v. The State of Madras, AIR 1950 SC
124.
  Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32.17
Consequently, if a violation of Art. 32 takes place by this Court's rejection of the instant
petition, the petitioners will have absolutely no remedy for such violation of their
fundamental right. Hence, the Petitioner submits that a liberal approach should be
adopted, erring on the side of caution, in cases where the Court rejects a petition under
Art. 32.
 Also, the writ petition is filed in the present case on the ground that for the enforcement
of a Fundamental Right, a writ petition under Article 32 (which itself is a Fundamental
Right) is a best remedy. The Supreme Court in Lala Ram v. Supreme Court Of India &
Ors.18, held that, ‘The main purpose of a ‘Review Petition’ under Article 137 of the
Constitution is not to enforce a fundamental right, but to reopen an order vitiated by an
error on the face of the record or for such other reasons. It may be that this is a
consequence of reopening an order, but the application itself, is not to enforce the
fundamental right, and on the other hand, the main and the very purpose of a ‘Writ
Petition’ under Article 32 is to enforce a Fundamental Right.’

17
5Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR 1960 SC 768; Naresh
Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
18
1967 SCR (1) 14.