Batch 17 Repeat-1 Semester IV

Name : Pratyush Pandey

Roll : 017/2017/1603
Sem- 8 Batch - 17
Subject: Constitutional Governance II (Semester IV)
 Answer 1:

INTRODUCTION :

The makers of Indian Constitution concocted a composed Constitution to guarantee that there
was a type of unbending nature in the Constitution. Additionally, the ability of amendment was
given to the Parliament under Article 368 to overcome the challenges which may develop in
future amidst the functioning of the Constitution. In any case, the degree of adaptability
embraced by a Constitution must be adjusted by a need to safeguard its regulating character as a
higher law that controls temporal parliamentary majorities of the country. Article 368 of the
Constitution does not endorse any express constraint upon the parliament's amending power,
however, the Supreme Court in Keshavananda Bharati v. Province of Kerala (1973)
proclaimed that Article 368 did not empower parliament to modify the 'Basic Structure or
Framework' of the Constitution. Vivaciously argued since its inception, the doctrine keeps on
being a focal component of recent institutional challenges over constitutional character and
change.

The Basic Structure Doctrine :

"Basic Structure" is not referenced in the Constitution of India. The idea grew step by step
with the obstruction of the legal executive occasionally to secure the fundamental privileges
of individuals and the standards and the way of thinking of the constitution.

The First Constitution Amendment Act, 1951 was tested in the “Shankari Prasad v. Union
of India” case. The revision was tested on the ground that it disregards the Part-III of the
constitution and subsequently, ought to be viewed as unconstitutional. The Supreme Court
held that the Parliament, under Article 368, has the ability to correct any piece of the
constitution including crucial rights. The Court gave a similar decision in “Sajjan Singh Vs
State of Rajasthan” case in 1965.

In “Golak Nath v. State of Punjab” case in 1967, the Supreme Court overruled its previous
judgement. The Supreme Court held that the Parliament has no power to amend Part III of the
constitution as the fundamental rights are supernatural and permanent. As per the judgement,
Article 368 sets out the method to change the constitution and doesn't give total authority to
the parliament to amend any piece of the constitution.

The Parliament, in 1971, passed the 24th Constitution Amendment Act. The demonstration
gave the authority to the parliament to roll out any amendment in the constitution including

1
AIR 1973 SC 1461.
fundamental rights. It additionally made it required for the President to give his consent on all
the Constitution Amendment drafts shipped off him.

In 1973, in the case of “Kesavananda Bharti v. State of Kerala”, the Supreme Court
maintained the legitimacy of the 24th Constitution Amendment Act by review of the
judgement passed in the Golaknath case. The Supreme Court held that the Parliament has
ability to amend any article of the constitution, however in doing as such; the basic structure
of the constitution is to be kept up. Be that as it may, the Apex Court didn't any get definition
free from the fundamental construction. It held that the "basic structure of the Constitution
could not be abrogated even by a constitutional amendment". This was a landmark case in
characterizing the idea of the basic structure tenet.

The Apex Court held that albeit no piece of the Constitution, including Fundamental Rights,
was past the Parliament's amending power, the "basic structure of the Constitution could not
be abrogated even by a constitutional amendment" The judgment inferred that the parliament
can just change the constitution and not modify it. The ability to change isn't an ability to
obliterate.

This is the premise in Indian law where the Courts can strike down any amendment passed by
Parliament that touches the basic structure of the Indian Constitution. The judgment recorded
some aspects as the basic structure of the constitution, for example, “Supremacy of the
Constitution, Unity and sovereignty of India, Democratic and republican form of government,
Federal character of the Constitution, Secular character of the Constitution, Separation of
power, Individual freedom.”
 “ Waman Rao Case (1981)”

The Apex Court emphasized the Basic Structure doctrine. It created a line as April 24th, 1973
i.e. Kesavananda Bharati’s judgment, and held that the doctrine not to be applied
retrospectively to revisit amendments made to the Constitution which occurred before that.

While addressing the first and second issue regarding the constitutional validity of Article 31A
of the constitution, the court held that, “considering the laws which take away the
Fundamental Rights as laws in violation of the doctrine of the basic structure of the
Constitution is a misconception. The court drew its attention on the main reason behind the
introduction of Article 31A under the 1st constitutional amendment which was to make the
Zamindari Abolition Laws more effective and to overcome the difficulties that may arise in
future. Further, the court emphasized the need for abridging the social and economic
disparities in the agricultural sector which were done by bringing the 1st constitutional
amendment. The court said that in the process of removing the existing inequalities, new
marginal and incidental inequalities may come up. Inequalities so arose cannot infringe the
basic structure of the Constitution. Furthermore, the court held that it is not possible for any
government to overcome the inequalities without causing any hardship or injustice to any class
of people who are entitled to equal treatment under the law. Therefore, Article 31A cannot be
considered to be violative of the basic structure of the Constitution.”

“Minerva Mills case (1980)”

It was held that:

“Parliament cannot, under Article 368, expand its amending power so as to acquire for itself
the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
The donee of a limited power cannot by the exercise of that power convert the limited power
into an unlimited one.”

Indra Sawhney and Union of India (1992)

The Apex Court held that, “The court gave a decision with 6:3 majority held that the decision
of the Government of India to reserve 27% of the jobs to the socially and economically
backward classes in which the preference would be given to the poorer sections of the
Socially and Educationally Backward Classes in the 27% a quota is held to be
constitutionally valid. By this, the court thought that the creamy layer among the Socially and
Economically Backward Classes would be eliminated. But the court struck down the
provision which provision which provides 10% reservation for economically backward
people among the higher castes as invalid.”

S.R. Bommai case (1994)

It was held that, “The exercise of powers vested under such provisions needs, therefore, to be
circumscribed to maintain the fundamental constitutional balance lest the Constitution is
defaced and destroyed. This can be achieved even without bending much less breaking the
normal rules of interpretation, if the interpretation is alive to the other equally important
provisions of the Constitution and its bearing on them. Democracy and federalism are the
essential features of our Constitution and are part of its basic structure.”

“Thus the federal principle, social pluralism and pluralist democracy which form the basic
structure of our Constitution demand that the judicial review of the Proclamation issued
under Article 356(1) is not only an imperative necessity but is a stringent duty and the
exercise of power under the said provision is confined strictly for the purpose and to the
circumstances mentioned therein and for none else.”

In “I.R.Coelho v State of Tamil Nadu”, the Supreme Court held that many of the crucial
rights were required for the basic structure of the constitution, and that the laws in the Ninth
Schedule would need to be tried by them. For this situation, SC needed to interpret Article
31B of the constitution which made the Ninth Schedule to shield laws embedded in it from
legal audit.

Over the long run, numerous different highlights have likewise been added to this rundown of
basic features, for example, “Rule of law, Judicial review, Parliamentary system, Rule of
equality, Harmony and balance between the Fundamental Rights and DPSP, Free and fair
elections, Limited power of the parliament to amend the Constitution, Power of the Supreme
Court under Articles 32, 136, 142 and 147, Power of the High Court under Articles 226 and
227.” Any law or change that abuses these standards can be struck somewhere near the SC
because they mutilate the fundamental construction of the Constitution.

Significance of the Basic Structure :

The Basic Structure doctrine is a declaration to the hypothesis of Constitutionalism to

forestall the harm to pith of constitution by greater part of the decision’s majority The
fundamental design regulation saved the Indian majority rules system as it goes about as an
impediment of constituent force or, in all likelihood limitless force of parliament may have
transformed India into an authoritarian one. It assists us with holding the essential
fundamentals of our constitution so carefully outlined by the principal architects of our
Constitution. It positively saved Indian popular government from declining into tyrant
system. It fortifies our vote based system by depicting a genuine detachment of force where
Judiciary is autonomous of other two organs. It has additionally given massive untold
unbridled capacity to Supreme Court and made it the most impressive court on the planet. By
limiting the correcting forces of administrative organ of State, it gave fundamental Rights to
Citizens which no organ of State
can overrule. Being dynamic in nature, it is more reformist and open to changes in time
dissimilar to the unbending idea of prior decisions. The basic structure precept however
subject to exceptional discussion from the date of its initiation and absence of text based
premise of similar actually keeps on holding specialty to hold up fragile sacred equilibrium of
forces.:

Current Circumstances and the need of Basic Structure:

From the Citizenship (Amendment) Act (CAA) to the most recent agricultural laws, there has
been a blast in PILs under the steady gaze of the Supreme Court scrutinizing the protected
legitimacy of ongoing enactment. One regular test among a considerable lot of the
forthcoming petitions under the watchful eye of the Supreme Court is the claim of
infringement of the doctrine of Basic Structure'. The CAA is only one of the forthcoming
cases under the steady gaze of the Supreme Court which will test the BSD's (Basic Structure
Doctrine’s) relevance. The discussion encompassing the teaching's introduction to the world,
and its resulting improvement as an interpretative apparatus, are aspects which are probably
going to decide its importance in other forthcoming cases – some of which, similar to the
CAA case, may end up being the landmark judgements.

The cases, in which the Supreme Court applied the convention to discover amendments, Acts,
and government action, end up being significant. Indeed, even the numerous situations where
the Supreme Court utilized the regulation to maintain the legitimacy of amendments, laws or
explicit understandings of established arrangements show that the principle is staying put and
a greeting for possible solicitors openly interest prosecutions to utilize it for extra legitimate
help.

In the case of “State (NCT of Delhi) v Union of India” (2018), SC held:

“After the evolution of the basic structure doctrine post Kesavananda, the interpretation of the
Constitution must be guided by those fundamental tenets which constitute the foundation and
basic features of the document. Where a provision of the Constitution is intended to facilitate
participatory governance, the interpretation which the court places must enhance the values
of democracy and of republican form of Government which are part of the basic features.”

In an academic article in the Indian Journal of Constitutional Law a couple of years prior,
senior lawyer Arvind P. Datar took the view that the basic structure has over and again saved
the constitution's uprightness and holiness. However, the historical backdrop of the tenet's
excursion in the paths and by-paths of the law has not been a smooth one, with challenges
testing its adequacy at each defining moment.

In Ashok Kumar Thakur v Union of India, most of the judges held that the 93rd
constitution revision which presented Article 15(5) to accommodate bookings for Scheduled
Castes, Scheduled Tribes and Other Backward Classes in institutions aided by govt. didn't
abuse any basic feature of the constitution. The court held that correspondence is a multi-
hued idea unequipped for an exact definition. An amendment, which "respectably
compresses" or modifies the fairness rule doesn't disregard the basic structure doctrine, it
held.

While the doctrine is all around hailed as having reinforced Indian vote based system, it has,
perplexingly; likewise go under assault for being "against popularity based and counter-
majoritarian in character". The analysis is that “unelected judges have assumed vast political
power (in the guise of determining what is basic structure in a given case) not given to them
by the constitution”.

As opposed to mainstream thinking about the fundamental construction principle having

assumed a heavenly part in protecting India's popular government, proof focuses to the
Supreme Court's dependence on it just in seven occasions, since its introduction to the world,
to strike down sacred changes. They are:

1. Kesavanand Bharati v State of Kerala (1973)

2. Indira Gandhi v Raj Narain (1975).

3. Minerva Mills v Union of India (1980)

4. Samba Murthy v State of Andhra Pradesh (1986)

5. Kihoto Hollohan v Zachillhu (1992)

6. Chandra Kumar v Union of India (1997)

7. Supreme Court Advocates-on-Record Association v Union of India (2015)

The seven occasions of striking down of established amendments on the ground of

infringement of basic structure theory would show that in all these, the court did so simply
because the particular amendments undermined legal freedom, considered as a fundamental
component.

In the Ayodhya judgment, the Places of Worship Act, 1991 was challenged. The court held
that the state has, by ordering the law, authorized a constitutional obligation and
operationalized its established commitments to maintain the balance, equality, and secularism
which is a piece of the fundamental highlights of the Constitution.

In the NJAC case, for instance, some find out if the Supreme Court did correct by equating
judicial primacy (which is only one feature of legal autonomy) with legal freedom to strike
down the amendment and the NJAC Act. They find out if a similar legal power isn't forfeited
when the Supreme Court's collegium is not interested in the chief's rebelliousness with its
suggestions in judges' arrangements or moves in any event, when emphasized.

While the deliberation of a fundamental design guideline may seem, by all accounts, to be a
greeting for its simple selection by the legal executive in a given case, the norm of survey
required – regardless of whether the upbraided administrative or chief activity takes steps to
cut down the building of the actual constitution – might be a troublesome standard to fulfill,
consequently compelling an adjudicator to think about options in contrast to essential
construction.

In the case of State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) for instance, a
two-judge seat of the Supreme Court discovered the BSD a valuable apparatus, regarding
Supreme Court's affirmation of secularism as basic structure in S.R. Bommai (1994), to
legitimize preventive activity by the chief to stop any individual or gathering of people from
planting seeds of shared scorn, to make disharmony and upset harmony, by their burning and
fiery addresses.

In the Firoz Iqbal Khan v Union of India (Sudarshan TV – UPSC Jihad show), the
Supreme Court originally controlled itself from forcing a pre-communicated order against the
TV station broadcasting its questionable program called "Bindaas Bol", which supposedly
discolors the Muslim people group. The point of reference set in ‘Thogadia’ could well have
been applied for this situation, without allowing a chance to the station to broadcast the initial
four scenes of the questionable program purportedly working with disdain discourse.

The Supreme Court changed its view and forced a pre-communicated order over the excess
scenes of the program solely after the disdain discourse substance of the initial four scenes as
 of now broadcast were brought to its notification. The Supreme Court is obviously looking
for standards to adjust the free discourse privileges of the TV station with its duty to keep up
the balance. All in all, the court sees the case before it as excessively convoluted for a simple
settling based on the BSD, as the court had done in 2004 on account of ‘Thogadia’.

These two cases managed in the range of twenty years by various appointed authorities bring
to the front the instability of the top court as of late in arbitrating an issue based on the BSD.

Conclusion :

To conclude, it very well might be said that the Basic Structure doctrine of the Constitution is
an extraordinary Constitutional idea that has been officially implanted upon the Constitution by
the legal executives through the interpretative cycles. The principle is very much detailed and it
has kept a harmony between the inflexibility and the adaptability of the Constitution. The basic
structure doctrine is the absolute most significant factor that has made the endurance of our
Constitution conceivable in its immaculate structure. It has served us well by adequately
dispossessing the prospects of inappropriate altering of the Constitution, annulment of the early
stage rights important for the improvement of human character, debilitating the hold of Rule of
Law and keeping up balance between various organs of the State. It keeps the parliament from
having unlimited force and turning into the expert of law itself. It has till date end up being a
successful apparatus in choosing the legitimacy of the Constitutional alterations. In any case,
regardless of whether this tenet is adequate to oblige the change that might be needed in future
should be additionally discussed. In any case, there is no extension in denying the way that this
convention has served the nation very well during tempestuous occasions when parliament was
in a temperament to depend on Article 368 foolishly. The Supreme Court has done an
incredible support of the country by proclaiming that there are sure essential highlights of the
Constitution which can't be changed. It has fundamentally brought up to the parliament that
Constitution isn't any gathering's proclamation which can be changed at their own will however
is a public legacy which can be altered just when a public agreement requests for it. In this way,
the structure of basic doctrine might be permitted to work as the actual guard dog of
Constitutional administration.
Answer 2 :

Introduction

The Importance of Fundamental Rights in the Indian Constitution :

Fundamental rights are of particular importance to the Constitution of India and the people
living in the country due to the fact that the very existence of an individual is substantiated by
the presence of a body that could enforce and protect its fundamental rights. Moreover, unlike
the United Kingdom, where the supremacy of the Parliament has taken the condition of human
rights to an extent where the human rights of the people are subject to whims and fancies of the
Parliament of the United Kingdom in all practical aspects, the Constitution of India has a
position which is diametrically opposite to the Constitution of the United Kingdom. The fact for
this assertion can be substantiated by the presence of part three in the Constitution of India
which contains fundamental rights. These fundamental rights are Justiciable in nature and the
gravity of the same can be asserted by the fact that a direct appeal to High Court or the Supreme
Court of India can be made under article 32 or 226 of the Constitution of India in case the
fundamental rights of an individual or a breach by any public authority anyhow. Various
instances in the Constitution and in the Indian history of Constitution of existence where a
substantiation has been made by the courts, through its power of rituals diction and its power of
judicial creativity and activism, where the fundamental rights of the people are upheld and the
administrative authority pendency is a defeated to a greater extent.

Justiciability of Fundamental Rights:

The Constitution of India, by virtue of article 32 as well as 226 of the Constitution of India,
provide a mechanism to the normal citizens of the country to approach the Supreme Court of
India under article 32 of the Constitution or a High Court of India under article 226 of the
Constitution to get a relief against the authority dependencies of public bodies which a bridge
the fundamental rights of the people guaranteed to them by the Constitution of India. A
sufficient realization came about the framers of the Constitution pertaining to transient political
majority is going to any extent to assert their power. Therefore, an unbridgeable framework was
set up by the Constitution in order to ensure that political parties could not, even if they tried
their best, abridge the fundamental rights guaranteed to the people by the Constitution of India.
 Article 136 of the Constitution of India :

In India, the role of special leave petitions is extremely essential. The Supreme Court of
India has been granted a residual power which can be exercised only in cases where an
involvement of a substantial position of law is considered or that gross injustice is
alleged to have been done. Therefore, the party who is aggrieved by the decision of the
High Court to have special permission to utilize the dispute resolution mechanism of the
honorable Supreme Court of India in appeal against any judgement or order of any court
or tribunal in the territory of India.

Writ Jurisdiction of the Supreme Court of India :

Concept of Writ Jurisdiction:

The Supreme Court of India, by virtue of article 32 of the Constitution of India, has an original
jurisdiction pertaining to any infringement of fundamental right that takes place in case of an
individual. Three of the Constitution of India is of extreme importance and is further
strengthened by the availability of a mechanism by which an appeal can be made to the
Supreme Court by an aggrieved party whose fundamental rights are alleged to have been
abridged. Through writ jurisdiction, the honourable Supreme Court of India has set various
precedents which has made it a guardian of fundamental rights guaranteed by the Constitution
of India. Numerous landmark cases have borne testimony to the importance of the writ
jurisdiction of the Supreme Court of India. A writ petition may be filed in the Supreme Court
under Article 32. Only if the complainant can show that his Fundamental Right has been
violated can the Supreme Court issue a writ. It's worth noting that the right to petition the
Supreme Court in the event of a breach of a Fundamental Right is a Fundamental Right in and
of itself, as it's found in Part III of the Constitution.

A writ petition may be brought before any High Court under whose jurisdiction the
cause of action occurs, in whole or in part, under Article 226. It makes no difference if
the authority against which the writ petition is filed is located within or outside the
jurisdiction. The High Court's power to issue a writ is extremely broad.
 The Writ of Habeas Corpus :

The phrase 'Habeas Corpus' literally translates to "to have the body of." This writ is used to free
anyone who has been wrongfully convicted or detained. The Court, by virtue of this writ, orders
that the person so detained be brought before it so that the validity of his detention can be
determined. If the Court determines that the detention was illegal, the individual must be
released immediately. This writ guarantees a prompt judicial examination of the prisoner's
alleged wrongful imprisonment and determination of his right to freedom. Habeas corpus, on
the other hand, cannot be given when a person has been arrested pursuant to an order from a
competent judge, even though the order does not appear to be wholly unconstitutional or
without jurisdiction at first glance.
This writ may be submitted by the detained person himself or on his behalf by his family or
associates. It can be used against both government entities and private individuals. Sunil Batra
v. Delhi Administration1 was a case in which a co-convict wrote a letter to the Supreme Court
about the mistreatment of the prisoners. The Supreme Court took up the letter and granted a
writ of habeas corpus, stating that the writ may be used to shield the prisoner not only from
wrongful detention but also from any maltreatment or inhumane treatment by the detaining
authorities.

The Writ of Mandamus :

‘Mandamus' is Latin for ‘we command' It is issued by the Court to compel a public body to
carry out legal obligations that it has failed or declined to carry out. The Court may issue it
against a public official, a public corporation, a tribunal, a lower court, or the government. It
cannot be used against a private person or entity, the President or Governors of States, or a
Chief Justice who is on the job. The Land Acquisition Officer erroneously declined to pay
interest on the reimbursement sum in the case of All India Tea Trading Co. v. S.D.O. 2 The
Land Acquisition Officer was served with a writ of mandamus, ordering him to reconsider the
application for interest payment. The writ of mandamus is used to keep public officials within
their jurisdiction while performing their duties. The purpose of mandamus is to avoid disorder
resulting from a lack of justice, and it must be issued in all situations where there is no clear
legal remedy. It cannot be released if the government or a public official has no legal obligation
to perform.
An individual in good faith who has an interest in the public authority's performance of the duty
1 (1980 AIR 1579)
2 (AIR 1962 Ass 20)
must file a writ petition requesting mandamus. The person requesting mandamus must have a
legitimate right to do so, as well as have requested the execution of the duty, which has been
denied.

The Writ of Quo Warranto :

'Quo Warranto' is Latin for 'under what warrant.' The Court issues this writ in order for an
individual holding a public office to demonstrate under what authority he holds that position. If
it is discovered that the individual is not qualified for the position, he can be removed from it.
Its aim is to prevent anyone from occupying a position to which they are not entitled, thereby
preventing usurpation of any public office. It is not possible to issue it in the case of a private
office. Mr. K.N. Srivastava was named as a Judge of the Guwahati High Court by the President
of India via a warrant of appointment under his seal in Kumar Padma Padam Prasad v. Union
of India3. Mr K.N. Srivastava was not fit for the role, according to a petition for issuing a writ
of quo-warranto. The Supreme Court ruled that because Mr. K.N. Srivastava was unqualified, a
quo warranto could be given, and the appointment of Mr. K.N. Srivastava was quashed as a
result.

The Writ of Certiorari :

The word 'certiorari' means 'to certify.' Certiorari is a writ of amnesty. Where the Court believes
that a lower court or tribunal has acted outside of its authority or made a legal mistake, it may
use the writ of certiorari to move the case to itself or to quash the order made by the lower court
or tribunal. The Supreme Court or the High Court issues a writ of certiorari to the lower courts
or tribunals.

The Writ of Prohibition:

3 (AIR 1992 SC 1213)

A court can issue a writ of prohibition to prevent lower courts, tribunals, and other quasi-
judicial authorities from acting outside of their jurisdiction. It varies from mandamus in that it is
given to direct inactivity rather than activity.
It is provided when a lower court or tribunal acts without or in excess of jurisdiction, or when
natural justice laws or constitutional rights are violated. It may also be provided when a lower
court or tribunal acts in violation of a statute that is unconstitutional in its own right.

Article 136 of the Constitution of India :

In India, Special Leave Petitions (SLP) have a prominent position in the judiciary, and have
been designated as a "residual force" in the hands of the Supreme Court of India, to be used
only in cases involving a substantive question of law or a gross injustice. It gives the aggrieved
party special permission to be heard in the Apex Court in an appeal against any judgement or
order of any court or tribunal in India (except military tribunal and court martial).
Chapter 4 of the Constitution of India pertains to the union judiciary and the content of it is
limited to 26 articles. The scope of it extends to the functioning, scope as well as nature of the
jurisdiction and powers of the Supreme Court of India. When a petition/application under
Article 136 reaches the Supreme Court, the Court must use its discretionary authority (rather
than its appellate jurisdiction) to determine whether or not leave should be granted in a
particular case. If the petitioner is granted leave to appeal, “the Court's appellate authority is
invoked, the gate for entry into the appellate arena is opened,” and the respondent may be called
to oppose the petitioner if necessary. In certain cases, the Court can dismiss the appeal after
granting leave without notifying the respondent. If the leave to appeal is denied, “the argument
for claiming the court's appellate jurisdiction” is lost.

Writ Jurisdiction vs Article 136 :

1. Writ Jurisdiction of the honourable Supreme Court of India is limited only to cases
where fundamental rights of individuals are abridged and where the fundamental rights
of individuals guaranteed under part three of the Constitution of India are violated. On
the other hand, the scope of special leave petitions can extend to any particular
legislation or any court or tribunal in place and does not necessarily need to be put in
only to respect fundamental rights. The only requirement of it is to contain a substantial
question of law which can inclined the court to grant special leave petition.

2. The scope of article 32 is quite limited as compared to specially petitioned due to the
fact that fundamental rights are limited in the Constitution however, the scope for
specially petitioned extends to any court or tribunal within the country. Therefore, an
aspect pertaining to the scope of the two kinds of jurisdiction also warrant consideration
in the present context to the fact that various strengthening in the positions of the law
and clarifications pertaining to legal positions of various laws take place by special
leave petitions to the honorable Supreme Court of India.

3. Article 32 of the Constitution of India leads to an expansion in the concept of

fundamental rights only. However, by virtue of special leave petition, various statutory
legislations can get a clear position of law established by the Supreme Court of India
due to the fact that it is the highest court of the land and by virtue of specially petition,
various points of law can be argued which contain an element of ambiguity in them and
which need to be settled by a decisive court. In many cases, it happens that various high
courts are in a different opinion pertaining to the applicability or position of law in a
particular case. However, by virtue of special leave petition, positions of law can be
argued before the honourable Supreme Court of India, which is the highest court of
appeal in land and the court by using its discretionary power can lay down the position
of law which has to be followed and informed by all the courts within the country.

4. An element of discretionary power presents its manifestation in article 136 and the
Supreme Court is free to reject any appeal that comes under article 136 to be
entertained. However, an appeal under article 32 of the Constitution of India is a
fundamental right of an individual and itself and has to be heard by the court and
entertained by it in order to decide, however, the petition might be disposed of but
hearing pertaining to the same is necessary. On the other hand, when it comes to article
136, if the court feels like the court case does not warrant the time of the honorable
Supreme Court, the same can outrightly be rejected by the court.