TMI Blog1962 (11) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the petitioners on December 12, 1961, calling upon them to furnish security of ₹ 2,500/- is set aside. - W.P.(C) 52 OF 1962 - - - Dated:- 6-11-1962 - P. B. GAJENDRAGADKAR, P. BHUVNESHWAR SINHA, K. N. WANCHOO, K. C. DAS GUPTA AND J. C. SHAH, JJ. For the Petitioners : G. S. Pathak, B. Gopalakrishnan and Naunit Lal, For the Respondent : K. S. Hajela and C. P. Lal, C. K. Daphtary, B. R. L. Iyengar and R. H. Dhebar JUDGMENT This is a petition under Art. 32 and it raises an interesting and important question about the validity of one of the Rules made by this Court in exercise of its powers under Art. 145 of the Constitution. The impugned Rule is Rule 12 in Order XXXV. It provides that the Court may, in the proceedings to which the said Order applies, impose such terms as to costs and as to the giving of security as it thinks fit. One of the proceedings covered by Order XXXV is a petition under Art. 32. The petitioners Prem Chand Garg, 8 Anr., partners of M/s. Industrial Chemical Corporation, Ghaziabad, have filed under Art. 32 petition No. 348 of 1961 impeaching the validity of the order passed by the Excise Commissioner refusing permission to the Disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action between the fundamental rights and the demands of socioeconomic welfare has been ultimately left in charge of the High Courts and the Supreme Court by the Constitution. It is in the light of this position that the Constitution- makers thought it advisable to treat the citizens' right to move this Court for the enforcement of their fundamental rights as being a fundamental right by itself. The fundamental right to move this Court can, therefore be appropriately described as the comer-stone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of Patanjali Sastri, J., regard itself "as the protector and guarantor of fundamental rights, "and should declare that "it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights" (Vide Ramesh Tlappar Y. The State of Madras). [1950] S.C.R. 594, 597. In discharging the duties assigned to it, this Court has to play the role "'of a sentinel on the qui vive" (Vide State of Madras v. V. G. Row) [1952] S.C.R.597,605, and it must always regard it as its solemn duty to protect the said fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the learned Solicitor-General who has appeared for the Registrar of this Court, has argued that the rule cannot be said to contravene Art. 32 because it is a discretionary rule and it vests discretion in this Court either to make an order as to the giving of the security or not to make it, as it may deem fit according to the circumstances of each case. He conceded that for some time past., it has been the practice of this Court generally to make ,in order as to security in Art. 32 petitions, though in some cases, on the motion of the petitioner, the amount of security has been reduced and sometimes security has even been dispensed with. But he argues that if the prevailing practice is found to be unsatisfactory or inconsistent with the spirit of the rule itself, the remedy is to change the practice; there is, however, no vice in the rule. In a proper case, security can be demanded from the petitioner because that is the normal rule of procedure recognised by the Civil Procedure Code. In this connection' he relied on the provisions of 0.25 r. 1 2 and 0.41 r. 10. Like all judicial trials, even in respect of the trial of the petition filed under Art. 32, the Court m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout a full examination of the merits of the question, that may only mean that the said orders may not have been properly passed under the rule. The exercise 'of the power conferred on the Court in such cases will not, however, invalidate the rule itself. In support of this argument, reliance has been placed on the decisions of this Court in the cases of )?.M.D. Chamarbaugwalla v. The Union of India [1457] S.C.R. 930. and Kedar Nath Singh v. State of Bihar [1962] Supp.2 S.C.R. 769,. As we have just indicated, it would have become necessary for us to examine these contentions if the power to make an order for security in appropriate cases had been conceded by the petitioners. But since the existence of the power is disputed, we have to decide the larger issue raised by Mr. Pathak. Mr. Pathak argues that even in cases to which the relevant provisions of 0.25 and 0.41 may ordinarily apply, this Court has no power to make an order of' security in a petition under Art. 32. The only test, says Mr. Pathak, which can be legitimately applied in dealing with the matter is : does the rule aid or assist the assertion or vindication of the fundamental right, or does it retard or obstruct it ? I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliminary ground that it purports to challenge an order of assessment made by an authority under a taxing statute which is intra vires, on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder, Vide Smt. Ujjam Bai v. The State of Uttar Pradesh [1963] 1 S.C.R. 778. If the words "or on any other ground" used by Das, C. J., are literally construed, they would have to be treated as inconsistent with these subs- equent decisions. That, however, is plainly not the true position and so, the argument based on the said words used by Das, C. J., cannot, in our opinion, be accepted. It would, we think, be unfair to assume that in using the words "or on any other ground" this Court wanted to imply, as Mr. Pathak seems to assume, that once a petition is made under Art. 32, there is no alternative but to consider its merits apart from considerations Like res judicata or the competence of the petition itself. Therefore, the argument that the rule is inconsistent with the decision in Kochunni Moopil Nayar's [1959] 2 S.C.R. 316, 335 case must be rejected. The next question to consider is whether an order for security can be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to be achieved is good, just or unexceptionable would be immaterial, vide the State of Bombay v. Bombay Education Society [1955) 1 S.C.R. 568, 583, and Punjab Province v. Daulat Singh (1946) L.R. 73 I.A. 59, 7-,. Therefore, we do not see how it is possible to escape the conclusion that the order for security retards the assertion or vindication of the fundamental right under Art. 32 and in that sense, must be held to contravene the said right. It is true that the statistics of the Art. 32 petitions filed in this Court during the last decade may show that the majority of the petitions are filed by citizens who complain about the contravention of their fundamental right under Art. 19(1)(f) and (g) and in that sense, the validity of the impact of the welfare policies of the States or the Union Government on the property rights of the citizens has more frequently fallen to be considered by this Court. Contravention of fundamental rights in respect of the freedom of speech and expression, and the freedom to form assemblies, associations or Unions, which some jurists describe as "preferred freedoms" has not given rise to as many petitions as the contravention of property rights has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution. The effect of this provision is that until law is made in that behalf, the powers enjoyed by the members of the House of Commons and its Committees at the commencement of this Constitution shall continue to be enjoyed by the members of the State Legislatures and their committees. One of the points which fell to be considered by this Court in the case of Sharma was whether the rights, powers and privileges of the members of the House pf Commons which could be claimed by the members of the State Legislatures had to stand the scrutiny of the test prescribed by Art. 19. In other words, if it appears that the said rights were inconsistent with the provisions of Art. 19(1), had the said rights to yield before the fundamental rights guaranteed by Art.19(1); and this Court held that Art. 19(1)(a) and Art. 194(3) have to be reconciled and the only way of reconciling the same is to read Art. 19(1)(a) as subject to the latter part of Art. 194(3) just as Art. 31 has been read as subject to Art. 265 in the earlier decisions of this Court. In other words, the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument based on Art. 142(1). The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws. Therefore, we do not think it would be possible to hold that Art. 142(1) confers upon this Court powers which can contravene the provisions of Article 32. In this connection, it may be pertinent to point out that the wide powers which are given to this Court for doing complete justice between the parties, can be used by this court for instance, in adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new point to be taken for the first time. It is plain that in exercising these and similar other powers, this Court would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the delegated power of legislation, and the said power cannot be exercised so as to affect the fundamental rights. If the wide words used in Art. 142 cannot justify an order of security, in an Art. 32 petition, it follows that a rule made under Art. 145 cannot authorise the making of such an order. We ought to add that cases of frivolous petitions filed under Art. 32 can be eliminated at the preliminary hearing of such petitions. Since 1959, petitions filed under Art. 32 are set down for a preliminary hearing and it is only after the Court is satisfied that a prima facie case has been made out by the petitioner that a rule Nisi is ordered to be issued against the respondent. In order to decide this question, sometimes notice is issued to the respondent even at the preliminary hearing and it is after hearing the respondent that a rule is issued on the petition. It may be that in some cases, the respondent may not be able to re- cover its costs from the petitioner even if the petition is dismissed on the merits. But that, in our opinion, cannot justify the making of an order for security, because even impecunious citizens, or citizens living abroad, must be entitled to move this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon in the manner suggested by the learned Solicitor- General. In practice, at present, an order of security is normally made unless a request is made by the petitioner either for the reduction of the amount or for dispensing with the security altogether. If the petitioner is not impecunious, an order for security will not serve any essential purpose, because if the costs are awarded against him after the final hearing, the respondent may be able to secure his costs. If, however, the petitioner is impecunious, the Court may not, after granting a rule on the petition, in its discretion, pass an order of security and in that sense, the very object of securing the respondent's costs would not be served. It is true that if the discretion is exercised by the Court in favour of impecunious petitioners and orders for security are not passed in their cases, no hardship will be caused to them. But it seems to us that what would be left to the discretion of the Court on this construction of the rule, is really a matter of the right of impecunious petitioners under Art. 32. That is why we think that the impugned rule in so far as it relates to the giving of security cannot be sustained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee under cl. (1) shall not be suspended except as provided by the Constitution. Clause (2) declares the jurisdiction of the Court to issue directions, orders or writs including certain specified writs for enforcement of any of the rights conferred by Part 111. A truly democratic Constitution recognizes not only certain important natural rights which are the attributes of a free citizen, but also sets up adequate machinery for protection against invasion of those rights. Our Constitution has in Ch. III enumerated certain fundamental rights such as equality before the law, with the concomitant guarantee against discrimination, right of freedom of speech, assembly, association, movement and residence, right to acquire, hold and dispose of property and to practice any profession or to carry on occupation, trade or business, freedom of conscience and the right to practice and propagate religion, freedom to manage religious affairs and cultural and educational 'rights. After enunci- ating the rights some in terms positive, some in negative, exercisable absolutely or subject to reasonable restrictions the Constitution has rendered all laws inconsistent therewith if preexisting, or ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules of the Court which require a petition to be filed, legibly written, typewritten or lithographed, submission of translation of documents not in the English language, presentation of affidavits, payment of court-fee on the petition and process fee for service of notice upon the parties concerned and similar rules would be invalid, for all these rules in a sense obstruct, the exercise of the right, and impose financial obligations which are not insignificant. But this rather extravagant view of the absolute character of the right to move this Court was very properly not attempted to be sustained. It was conceded that the right conferred by- Art. 32(1) to move this Court may be regulated by all such directions general or ad hoc which serve to aid and facilitate a fair disposal of the case, according to an orderly procedure. What the Constitution has guaranteed is the right to move this Court i.e. the right to claim redress against an alleged infringement of a fundamental right. This Court is doubtless made the custodian of the fundamental rights guaranteed by the Constitution and we would be failing in our duty if we were to refuse to entertain a petition for enforcement of a fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the petitioner should furnish security for the costs of the respondent. The matter is then judicially considered and an order requiring the petitioner to furnish security if the Court is satisfied about the necessity of passing such an order is made. But even orders so passed are often recalled and modified having regard to the justice of the case. The practice of considering the question at the initial stage-of issuing the rule may require to be altered, but there is nothing in the rule which requires that practice to be followed. In an appropriate case the Court may make an order suo motu at the threshold of the proceeding, or at any time in another, on the request made by the respondent. All such orders are in the exercise of the jurisdiction of the Court, having regard to the circumstances and for doing complete justice between the parties. In considering the nature of the jurisdiction exercise by the Court reference must be made to Art. 142 of the Constitution which in so far as it is material in this case provides by the first clause that "the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior purposes and similar allegations are made by litigants resorting to this Court, and there is no recognised procedure by which investigation of such allegations of improper conduct may be disentangled from those to be dealt with on a strictly interpretational plane. The Court has, therefore, to hear the entire case dealing both with the validity of the statutes or executive acts and the allegations of improper- conduct before it can finally, adjudicate upon the claim made by the petitioner. If because of the nature of the proceeding brought before it, the Court is precluded from ordering even in appropriate cases an applicant for redress to furnish security before exercising his privilege of prosecuting his claim, the Court would be acting not as a Court of justice but as an instrument of oppression. The impugned rule being merely declaratory of the jurisdiction which is defined by Art. 142 of the Constitution no question of conflict between law made by the State, and the guarantee of right to move this Court under Art. 32(1) by appropriate proceedings for enforcement of fundamental rights arises. The provisions of the Constitution contained in Art. 142 and Art. 32(1) must be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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