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LEGAL EDUCATION AND REFRESHER PROGRAMS FOR LAWYERS
News By SK MOTAHAR HOSSAIN

*LEGAL* *EDUCATION* *AND* **REFRESHER* *PROGRAMS* *FOR*  *LAWYERS*       

           

ADMINISTRATOR'S REPLY TO THE FIRST SET OF QUESTIONS ON WRIT PETITIONS 



The first set of  questions  on Writ Petition are quoted below:-


a)  What is the difference between Article 32 and Article 226 of the Constitution of India?


b) Whether alternative remedy is bar to Article 32 of the Constitution of India?


c) To what extent, alternative remedy is a bar to Article 226 of the Constitution of India?


d) Who can file an application under Article 32 of the Constitution of India?


e)  Who can file an application under Article 226 of the Constitution of India?  

    

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REPLY TO QUESTION 1(a) ON WRIT PETITION


What is the difference between Article 32 and Article 226 of the Constitution of India?


Article 32 is itself a fundamental right to protect and enforce the fundamental rights of Citizen of India. No other Constitution in the world confers such a fundamental right on citizen of their countries. 

In Hindi Hitrakshak Samity –versus- Union of India reported in (1990) 2 SCC 352, it was observed that Article 32 of the Constitution guarantees enforcement of the Fundamental Rights but violation of Fundamental Rights is the sine qua non for seeking enforcement of those rights by the Supreme Court.

In J. Fernandes & Co. –versus- Chief Controller of Imports and Exports reported in (1975) 1 SCC 716, it was observed as follows-

“16….. A petition under Article 32 will not be competent to challenge any erroneous decision of an authority. ... A wrong application of law would not amount to a violation of fundamental right ... if the provisions of law are good and the orders passed are within the jurisdiction of the authorities there is no infraction of fundamental right if the authorities are right or wrong on facts.”

While dealing with powers of the Supreme Court under Article 32 of the Constitution of India, the Supreme Court in the case of M.C. Mehta –versus- Union of India (1987) 1 SCC 395, observed inter alia as follows:-

“7. We are also of the view that this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed.”


The scope and ambit of Article 226 came for consideration before the Supreme Court in Dwarkanath –versus- C.I.T. reported in AIR 1966 Supreme Court 81 and it was observed as follows:-

“4. ... This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature" for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country.”

In the case of Rohatas Industries Limited –versus- Staff Union reported in (1976) 2 SCC 82, Supreme Court observed as follows:-

“9. The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person ---- even a private individual ---- and be available for any (other) purpose ---- even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226(1-A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to "the residence of such person". But it is one

thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be

judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights.”

Again, Supreme Court in Air India Statutory Corporation –versus- United Labour Union reported in (1997) 9 SCC 377 held as follows:-

"59. The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts.”


REPLY TO QUESTION 1(b) ON WRIT PETITION


Whether alternative remedy is bar to Article 32 of the Constitution of India?


In the case of Kharak Singh –versus- State of U.P. in AIR 1963 Supreme Court 1295, it was observed inter alia as follows:-

“16. …………. It is wholly erroneous to assume that before the jurisdiction of this Court under Art. 32 could be invoked the applicant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedies as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of this court that by State action the fundamental right of a petitioner under Art. 32 has been infringed, it is not only the right but the duty of

this Court to afford relief to him by passing appropriate orders in that behalf.”




REPLY TO QUESTION 1(c) ON WRIT PETITION


To what extent, alternative remedy is a bar to Article 226 of the Constitution of India?

In the case of Union of India versus T.R. Verma, reported in AIR 1957 SC 882, the Supreme Court observed inter alia as follows:-

“It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the court to issue a writ; but …. "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs'....And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor.”

In Thansingh Nathmal versus Superintendent of Taxes reported in AIR 1964 Supreme Court 1419, the Supreme Court observed inter alia as follows:-

“Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.”

However, it was held by the Supreme Court that the rule of alternative remedy is not such a rule which bars the jurisdiction of the High Court to entertain the writ petition but is rather the rule which Courts have laid down for exercise of their discretion. (A.V.Venkateshwaran versus Ramchand Sobhraj Wadhwani reported in AIR 1961 Supreme Court 1506).

From analysis of the reported decisions, it emerges that High Court may entertain a writ petition, notwithstanding availability of an alternative remedy, particularly: (i) where writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice or (iii) where impugned orders or proceedings are wholly without jurisdiction or (iv) vires of an Act is under challenge.


REPLY TO QUESTION 1(d) ON WRIT PETITION


Who can file an application under Article 32 of the Constitution of India?

In the case of Bandua Mukti Morcha –versus- Union of India reported in (1984) 2 Supreme Court Cases 961, it was observed as follows:-

“Clause (1) of Article 32 confers the right to move the Supreme Court for enforcement of any of the fundamental rights, but it does not say as to who shall have this right to move the Supreme Court  or does it say by what proceedings the Supreme Court may be so moved. There is no limitation in the words of clause (1) of Article 32 that the fundamental right which is sought to be enforced by moving the Supreme Court should be one belonging to the person who moves the Supreme Court nor does it say that the Supreme Court should be moved only by a particular kind of proceeding. It is clear on the plain language of clause (1) of Article 32 that whenever there is a violation of a fundamental right, anyone can move the Supreme Court for enforcement of such fundamental right. Of course, the Court would not, in exercise of its discretion, intervene at the instance of a meddlesome interloper or busybody and would ordinarily insist that only a person whose fundamental right is violated should be allowed to activise the Court, but there is no fetter upon the power of the Court to entertain a proceeding initiated by any person other than the one whose fundamental right is violated, though the Court would not ordinarily entertain such a proceeding, since the person whose fundamental right is violated can always approach the Court and if he does not wish to seek judicial redress by moving the Court, why should someone else be allowed to do so on his behalf.”





REPLY TO QUESTION 1(e) ON WRIT PETITION


Who can file an application under Article 226 of the Constitution of India?  

Generally speaking, an aggrieved person may file a writ petition, but the expression “aggrieved person” has not been defined anywhere. In the case of S.S. & Co. versus Orissa Mining Corporation Limited reported in (2008) 5 SCC 772, that a writ petition can be filed only  by  a party whose position gets adversely affected by the action which that party seeks to impugn in the writ petition. 

In the case of R. versus Liverpool Corporation reported in (1972) 2 QB 299, Lord Denning held that the expression "person aggrieved" would include any person whose interests may be prejudicially affected by what is taking place. It does not include a mere busybody who is interfering in things which do not concern him, but it includes any person who has a genuine grievance because something has been done or may be done which affects him.

In the case of Jasbhai Motibhai Desai versus Roshan Kumar reported in 1976 (1) SCC 671, Supreme Court observed inter alia as follows:- 

“Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words person aggrieved' is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?”

  In S.P. Gupta v. Union of India reported in 1981 Supplement SCC 87, a preliminary objection about the locus standi of the petitioners who were practising lawyers was raised. Observing that the petitioners being lawyers had sufficient interest to challenge the constitutionality of the circular letter issued by the Law Minister, the Supreme Court negative the contention and upheld the locus stand of the petitioners.

In Indian Young Lawyers Assn. v. State of Kerala reported in (2019) 11 SCC 1, the majority held that a writ petition under Article 32 filed as a PIL seeking judicial review of religious practices involving alleged violation of fundamental rights was maintainable and granted the relief prayed for. There was a lone dissent by Indu Malhotra J that the petitioners had no locus standi and it was not permissible to grant the relief.

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Note for the participants in LEGAL EDUCATION AND LEGAL REFRESHER  PROGRAMMES for advocates. I tender apology because I am sometimes late in posting answers to the question but all the participants are requested to post their own questions and discuss amongst themselves possible answers to the same. I pray to God that all the participants in these programmes may rise in the profession as brilliant lawyers.