I.

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 on behalf
of all women of the country who have become vulnerable in the hands of their husbands
is not maintainable under Article 32 of the Constitution of Union of Sind. It is contended
that the writ petition is not maintainable [1.], Suitable Remedy is a Bar to Maintainability
[2].

I.1. THE WRIT PETITION IS NOT MAINTAINABLE

 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.1 The Apex Court in A. K. Gopalan v. The State of Madras2,
observed that, “in order to attract the application of article 32, the person applying must
satisfy that he has got a right under Part III of the Constitution which has to be enforced
under article 32.”
 In the present case, the mere absence of any law with regards to marital rape or not
penalizing it and making it an offence has not violated the right to life of shazia, implicit
in the Right to life and liberty guaranteed by the Constitution under Article 21.3

I.2 SUITABLE REMEDY IS A BAR TO MAINTAINABILITY

 The suitable remedy against the order/judgment of the Supreme Court is right to review.
The judgment/order of the Supreme Court cannot be challenged under Article 32, as
proved, however on the basis of the recognition of the principle: ‘to err is to human’, the
Constitution provides the remedy under Article 137 in respect of orders/judgments of the
Supreme Court.

1
Hindi Hitrashak Samiti V. Union Of India, AIR 1990 SC 851.
2
1950 AIR 27, 1950 SCR.
3
Artucle 21 Of Constitution Of Union Of Sind.
  Rectification of an order thus stems from the fundamental principle that justice is above
all. It is exercised to remove the error and not for disturbing finality. 4 Article 137 of the
Constitution provides substantive power to review any judgment or order, and here to
review means to rectify or recall.5 In A. R. Antulay v. R. S. Nayak6, it was held that the
superior court can always correct its own error brought to its notice either by way of
petition or ex debito justitiae. It was further observed that, a judgment or an order passed
by this Court will not be open to a writ even if an error is apparent. But in exercise of
inherent jurisdiction, the Court’s judgment shall be amenable to correction of an error, if
it comes to the notice of the Court.7.
 Thus, the petitioner in the present case should have approached the Hon’ble Apex Court
even to contest her claim of violation of fundamental Rights under any other provision.
The petitioner’s writ petition in the present case is not maintainable on account of it being
the wrong remedy.

I.3 CONSEQUENTLY, THE PRESENT PETITION CANNOT BE TREATED AS A

PUBLIC INTEREST LITIGATION

 A PIL should be filed by a public spirited individual. A petitioner cannot in absence of

locus standi ask the Court to treat the matter as a PIL though a community of people
might be benefitted by the judgment of the Court. A PIL is maintainable only when it
complies with the following conditions:
i. The Court cannot exercise the power of PIL to espouse the cause of unnamed and
undisclosed persons, unless the petitioner may be held to possess a representative
capacity.8

ii. If the affected party do not wish intend to challenge the action or omission, it
cannot be attacked in PIL.9

iii. The PIL must be in favour of those that are unrepresented or underrepresented.10

4
Lily Thomas & Ors. V. Union Of India & Ors., 2000 (6) SCC 224
5
Bid
6
AIR 1988 SC 1531
7
Radhey Shyam & Anr. V. Chhabi Nath & Ors., [2015] 5 SCC 423.;See Also Rupa Ashok Hurra V. Ashok Hurra &
Anr. (2002) 4 SCC 388
8
Lakshmi V. Hassan Uzzaman, (1985) 4 SCC 689.
9
Ranji Thomas V. Union Of India, (2000) 2 SCC 81.
 iv. A party having personal interests in the prayer cannot approach the Court with
PIL.11

 From this, it is evident that in the present instance, it can be concluded that the present
petition is not even PIL as there is personal interest involved.

10
Gupta V. Union Of India, AIR 1982 SC 149; Ramsharan V. Union Of India, (1989) Supp 1 SCC 251; Fertilizer
Corpn. Union V. Union Of India, (1981) 1 SCC 568 .
11
Duryodhan Sahu (Dr.) V. Jitendra Kumar Mishra (1998) 7 SCC 273 .