TMI Blog2015 (7) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... less of fundamental right to affiliation or recognition. From reading of Article 32, it is manifest that clause 1(i) of Article 32 guarantees the right to move the Supreme Court for an appropriate writ for the purpose of enforcing the Fundamental Rights included in Part-III of the Constitution. The sole object of Article 32 is the enforcement of Fundamental Rights guaranteed by the Constitution. It follows that no question other than relating to the Fundamental Right will be determined in a proceeding under Article 32 of the Constitution. The difference between Article 32 and 226 of the Constitution is that while an application under Article 32 lies only for the enforcement of Fundamental Rights, the High Court under Article 226 has a wider power to exercise its jurisdiction not only for the enforcement of Fundamental Rights but also ordinary legal right. Petitioners have challenged the decision of MCI and the Central Government refusing to grant permission or renewal to carry on their courses for the Academic Session 2015-16. The decisions are based on the inspection reports submitted by the teams of MCI. The jurisdiction of MCI or the Central Government to grant or refuse t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Dean to call for a faculty meeting at 3.30 PM. Many teachers could not attend the meeting alleged to have left the college for lunch or Friday prayers or having gone home for the weekend while many others who came after 3.30 PM from different parts of the campus were not allowed to attend the meeting. Many of the Resident Doctors were stated to have been absent on account of the imminent State Level PG Entrance Test. Another inspection was conducted on 7th February, 2015. The inspection report was alleged to have been inaccurate and signed in protest by the Dean. 5. The aforesaid report was considered by the Executive Committee of the MCI on 10th February, 2015 and it was decided not to recommend the renewal of the permission of the petitioner and the same was communicated to the Union Government, which sent letter dated 04.03.2015 to the petitioner to appear for a hearing. After the hearing where the petitioner was said to have justified the deficiencies that were pointed out, the Central Government sent letter dated 22.05.2015 directing the MCI to conduct a reassessment. However, the MCI was alleged to have not done a re-inspection as directed on the ground that a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Court under Article 32 of the Constitution instead of approaching the High Court. 12. Both the learned senior counsel, however, claimed their right guaranteed under Article 19(1)(g) of the Constitution of India. 13. At the very outset, we wish to extract the relevant portion of Article 19 of the Constitution which reads as under:- 19. Protection of certain rights regarding freedom of speech etc (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (f) omitted (g) to practise any profession, or to carry on any occupation, trade or business (2) ----------------- (3) ------------------ (4) --------------------- (5) --------------------- (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the statute. Therefore, where it is dependent on the permission under the statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Then again, the State policy may dictate a different course. xxx xxx xxx 72. Accordingly, it is held that there is no fundamental right under Article 19(1)(g) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that anyone desirous of starting an institution purely for the purposes of educating the students could do so but Sections 22 and 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind. 16. Considering the facts of the case as averred by the petitioners and the rights claimed therein, we are of the considered opinion that the petitioners, even though have a right to establish institutions for imparting medical and technical education, such right is not a fundamental right. 17. From reading of Article 32, it is manifest that cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether customs duty is payable at the rate prevalent on a particular date or not has to be determined within the four corners of the Customs Act, 1962. The petitioner has no fundamental right as such to clear any goods imported without payment of duties in accordance with the law. There is procedure provided by law for determination of the payment of customs duty. The revenue has proceeded on that basis. The petitioner contends that duty at a particular rate prevalent at a particular date was not payable. The petitioner cannot seek to remove the goods without payment at that rate or without having the matter determined by the procedure envisaged and enjoined by the law for that determination. The petitioner without seeking to take any relief within the procedure envisaged under the Act had moved this Court for breach of fundamental right. This is not permissible and should never be entertained. In a matter of this nature where liability of a citizen to pay a particular duty depends on interpretation of law and determination of facts and the provision of a particular statute for which elaborate procedure is prescribed, it cannot conceivably be contended that enforcing of those provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than ten years old civil appeals and criminal appeals are sobbing for attention. It will occasion great misery and immense hardship to tens of thousands of litigants if the seriousness of this aspect is not sufficiently realized. And this is no imaginary phobia. A dismissed government servant has to wait for nearly ten years for redress in this Court. Kashinth Dikshita v. Union of India, (1986) 3 SCC 229: (AIR 1986) SC 2118). A litigant whose appeal has been dismissed by wrongly refusing to condone delay has to wait for 14 years before his wrong is righted by this Court. Shankarrao v. Chandrasenkunwar, Civil Appeal No.1335(N) of 1973 decided on January 29, 1987. The time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego, or raising of some eyebrows. Again, it is as important to do justice at this level, as to inspire confidence in the litigants that justice will be meted out to them at the High Court level, and other levels. Faith must be inspired in the hierarchy of courts and the institution as a whole, not only in this Court alone. And this objective can be achieved only this Court showing trust in the High Court by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition under Article 32 of the Constitution came for consideration before a three Judges' Bench of this Court for the enforcement of any Government policy. In the writ petition, the petitioner sought for issuance of the writ of mandamus directing Central Government to hold pre-medical and pre-dental examination in Hindi and regional languages, which according to the petitioner is mandated by Article 29(2) of the Constitution of India. While permitting the petitioner to withdraw its petition, the Court observed that Article 32 of the Constitution guarantees enforcement of Fundamental Rights but violation of Fundamental Right is the sine qua non for seeking enforcement of those rights by the Supreme Court. In order to establish the violation of fundamental right, the Court has to consider the direct and inevitable consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced. Where the existence of fundamental right has to be established by acceptance of a particular policy, or a course of action for which there is no legal compulsion or statutory imperative and on which there are divergent views, the same cannot be sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conclusion that no question of the enforcement of fundamental right arises in this case and the writ petition is not maintainable. 25. Their Lordships further observed: 38. As I have said above, the submission of the learned Additional Solicitor General is well founded. It has the support of the following decisions of this Court which I shall now deal with. In Gulabdas v. Assistant Collector of Custom 1957 AIR(SC) 733, 736.) it was held that if the order impugned is made under the provisions of a statue which is intra vires and the order is within the jurisdiction of the authority making it then whether it is right or wrong, there is no infraction of the fundamental rights and it has to be challenged in the manner provided in the Statute and not by a petition under Article 32. In that case the petitioner was aggrieved by the order of the Assistant Collector of Customs who assessed the goods imported under a licence under a different entry and consequently a higher Excise Duty was imposed. The petitioners feeling aggrieved by the order filed a petition under Article 32 and the objection to its maintainability was that the application could not be sustained because no f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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