Professional Ethics Diary

PROFESSIONAL ETHICS AND LAW
I. INTRODUCTION
Professional ethics encompasses an ethical code governing the conduct of
persons engaged in the practice of law as well as persons engaged in the legal
sector. All members of the legal profession have a paramount duty to the court
and towards the administration of justice. This duty prevail over all other
duties, especially in the circumstances where there may be a conflict of duties.
It is important that legal practitioners conduct themselves with integrity,
provide proper assistance to the court, and promote public confidence in the
legal system. In carrying out their duties, they are required and expected to
deal with other members of the legal profession with courtesy and integrity.
Advocates, apart from being professionals, are also officers of the court and
play a vital role in the administration of justice.
Accordingly, the set of rules that govern their professional conduct arise out
of the duties that they owe to the court, the client, their opponents and other
advocates. Rules on the professional standards that an advocate needs to
maintain are mentioned in Chapter II, Part VI of the Bar Council of India
Rules. These Rules have been provided under section 49(1)(c) of the
Advocates Act, 1961.
II. EVOLUTION OF PUBLIC INTEREST LITIGATION

CONCEPT OF PUBLIC INTEREST LITIGATION
The concept of Public Interest Litigation owes much to the American

innovation of the dictum "Public Interest Law" whose basic thrust is to
ensure that citizens whose lives may be affected by governmental policies
have a right to participate in the formulation of those policies. Courts and
administrative agencies that shop, implement or enforce policies should be
open and accessible to the views of those citizens who may be affected by
such actions and decisions. The council for Public Interest Law set up by the
Ford Foundation in USA, in its report, has opted for a broad definition:
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Public Interest Law is the name that has recently given to efforts to provide
legal representation to previously unrepresented groups and interest. Such
efforts have been undertaken in recognition that the ordinary market place
for legal services fails to provide such services to significant sections of the
population and to significant interests. Such groups and interest include the
poor, environmentalists, consumers, racial and ethnic minorities and
others.1 It is interesting to note that the concept of public interest litigation
had its origin in the United States and over the years, it has passed various
vicissitudes. In India, the concept of PIL originated in PUDR vs. Delhi Govt.
in' Asiad Labour Case (1982). During the construction-boom in Delhi before
the Asian Games in 1982, migrant labourers from various parts of the
country were brought to Delhi by the Private Contractors and did not pay
their basic wages and made to live them in the streets of Delhi, PUDR filed
a petition concerning the statutory wages of these migrant labourers in the
apex court and subsequently the court made the administration responsible
to enforce the minimum wages regulation even in cases of labour
employment by private contractors.
The credit for introducing public interest litigation and making the court
acces'sible to the unrecognised, illiterate, poor, have-nots goes to a few
activist judges notably V.R. Krishna lyer, J. and P.N. Bhagwati, J. of the
Supreme Court. They not only broadened the rules of locus standi from
"traditional individualism" to community orientation of public interest
litigation but also relaxed the formalities of judicial process. In the words of
Justice P.N. Bhagwati of the Supreme Court:
'PIL' is the strategic arm of the legal aid movement and aims at bringing
justice within the reach of the poor vulnerable masses and helpless victims
of injustice. Justice Bhagwati, however, gave the concept a comprehensive
1S.K. Agarwal, Public Interest Litigation in India: A Critique, N.M. Tripathi, Bombay, 1985, p.2.
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exposition in S.P. Gupta V. Union of India (AIR 1982 SC 1497). He has defined
the scope of public interest litigation in this manner : Where a legal wrong or a
legal injury is caused to a person or to a determinate class of persons by reason
of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of
law or any such legal wrong or legal injury or illegal burden is threatened and
such person or determinate class of personal is by reason of poverty,
helplessness or disability or socially or economically disadvantaged position,
unable to approach the court for relief, any member of the public can maintain
an application for appropriate direction, order or writ in the High Court under
Article 226 and in case of breach of any fundamental right of such person or
determinate class of persons, in this court under Article 32 seeking judicial
redress for the legal wrong or injury caused to such person or determinate the
class of persons.
In Bandhua Mukti Morcha V. Union of India (AIR 1984, S.C. 802), Bhagwati, J.,
has observed uthe court is moved for this purpose by a member of a public by
addressing a letter drawing the attention of the court ·to such legal injury or
legal wrong. Court would set aside all technical rules of procedure and
entertain the letter as a writ petition on the judicial side and take action upon
it." The broad contours of PIL in India may be summarised thus:
a. It would comprehend any legal wrong or injury or illegal burden caused

or threated. (It would not necessarily be confined to the violation of
fundamental rights);
b. The subject may be either a person or a determinate class of persons who

by reason of poverty, helplessness or disability or socially or
economically disadvantageous position cannot themselves claim relief
before the courts;
c. Any member of the public can maintain an application for appropriate

direction etc. on behalf of such a person or class of persons;
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d. The High Court can be moved for the interaction of any right; the
Supreme Court can be moved for the violation of fundamental rights
only;
e. The court can issue any direction, order or writ for the redressal of
grievances (This may include directions for affirmative action and
continuous monitoring); and
f. The court could be moved by a member of the public even by addressing
a letter which the court could convert into a writ petition.
Since long the Indian judiciary has been struggling to evolve a new
jurisprudence to ensure justice within the reach of the poor masses-
unrecognised, weak, helpless and indigent - who constitute, as Justice
Bhagwati says, "the low visibility area of humanity". It has, therefore, devised
an effective judicial technique called 'Public interest litigation' "to realise the
dream set forth in Part Ill and Part IV of the Indian Constitution " 2 , and to set
a new doctrine of accountability of the State for constitutional and legal
violations which adversely affect the weaker sections of the society. The
purpose behind this move is to make the Judicial system more reformative and
responsive to the needs of average man and to pave the way for social change.
"Its rationale is contained in Article 39A of the Constitution. This Article
provides the sketch of judicial 'system which promotes justice on the basis of
equal opportunity" and directs the State, .to provide free legal aid by suitable
legislation or schemes or in any other way to ensure that opportunity for
securing justice are not denied to any citizen by reason of economic or other
disability.
The thrust of the court in moving forward with the PIL can be analysed on
two fronts. First, the approach towards strengthening the moral authority,
base and credibility of the judiciary among the Indian masses which was
2Shrishmani Tripathi, The Human Face of the Supreme Court : PIL in the Apex Court, Ganga Kaveri
Publishing House, Varanasi, 1993, p.43.
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largely eroded during the emergency period (1975-77) by the excessive

intervention of the executive in the matters of civil rights of people. Second,
the judiciary being the guardian of social revolution seeking its legitimate
partnership in the governance of the State with the legislature and the
executive.
In the initial years of its functioning, the Indian Supreme Court was a silent
spectator of public interest jurisprudence. "Public interest jurisprudence
requires that assistance be rendered at two levels. First, various interest
groups be given an opportunity to shape public policy by participating in
the decision-making process. This requires a sensitive response from
administration and in sense of accountability to the public. This is the device
to lay a control over bureaucratic fiat. Second, these groups should have an
opportunity to agitate the matter in a court of law and seek appropriate
remedies from it. "
To make the judiciary, however, not to be a silent spectator with regard to
public interest jurisprudence and to be a legitimate partner in the process of

the socio-economic progress in the country, it has recognised that public
interest of indeterminate class of persons can be represented by public

interest groups. That is why, the court has liberalised the rules of locus
standi providing thereby an opportunity to a large mass ·of people to be

represented by voluntary agencies. These innovations of the courts are also
linked to anti-poverty programmes and to the schemes of providing -legal
aid to the poor. PIL has thus, been an innovative strategy in our judicial
system to defend the rights of citizens. It has also opened up the possibility
of access to justice for the disadvantaged underprivileged persons in the
society.
III. PUBLIC INTEREST LITIGATION AND CIVIL RIGHTS MOVEMENT
The present struggle for civil rights movement in India has its antecedents
during the colonial rule but it became intense and full-fledged when
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national emergency was imposed by Indira Gandhi, the then Prime Minister of
India, during 1975-77. During this period the contemporary moral standards
of India's democratic norms stood as particularly amoral due to the increasing
weakness in the professional efficiency of the State apparatus -the bureaucracy,
political parties, the judiciary and the media. As a result, some of the important
events such as the demand for restoration of civil and democratic rights, the
demand for regional autonomy, restructuring of the State apparatus and the
emergence of various civil and democratic rights organisation provided the
institutional base for this movement.
"The bottomless ocean of economic, social and political oppression and human
indignities in contemporary India constitutes the concern of the civil and
democratic rights movement".3 The constitutional remedies against the
violation of fundamental rights of citizens, as sharply manifested during the
national emergency of 1975-77 found to be inadequate. The emergence of new
political leaders, new regional parties, sub-nationalist assertions, the evolution
of a vibrant print media, emergence of civil rights groups "like Peoples Union
for Democratic Rights (PUDR, Delhi), Committee for the Protection of
Democratic Rights (Bombay), Andhra Pradesh Civil Liberties Committees
(Hyderabad) or Association for the Protection of Democratic Rights (Punjab)"
led to more passionate and pro-people approach to defend the democratic
rights amidst the continuing problems of poverty, illiteracy, injustice and
exploitation. With the erosion of consensual model of governance, new
thoughts were streamlined to give new directions of social change. The
agencies of state could no more be understood as branches of one system of
State as there was sharp rift between the different organs - executive, legislature
and judiciary, on basic issues including the rights of citizens. These had their
impact in the concern for citizens rights within the
3Aswini K. Ray, Civil Rights Movement and Social Struggle in India, Economic and Political Weekly,
Voi.XXI, No.28, July 12, 1986, p.1203.
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mainstream of political and intellectual discourse in the country. This
discourse also encompassed the judiciary. The emergence of new activist
judges who were sensitive to the grievances of the oppressed and
unprivileged, along with new civil rights groups followed as consequence.
The most common grievance of the unprivileged was to get justice at
cheaper price on the judicial front, "various committees such as Bhagwati
Committee of Gujrat on legal Aid (1971 ), Krishna lyer Committee on
Procedural Justice ( 1973), a High level Committee consisting of Justices

Krishna lyer and Bhagwati (1976), Law Reforms Commission in Rajasthan
(1975), Committee on Juridicare Government of India (1976) were

constituted which bear testimony to the intentions of the Government to
help the poor. Quite significant in this regard is to note that the Supreme
Court itself indulged in judicial populism during the National Emergency
(1975-77). legal-Aid Camps were organised; even there was Padyatras by
Justices; Lok Adalats (People's Court) were introduced to realize access to
justice or what Justice Lodha has described as 'Chaupal Par Nyay'. So the
apex court brought out a system of free legal aid to the poor and also became
more sensitive to the cause of poor and the depressed. According to Prof.
Upendra Baxi "the judicial populism was partly an aspect of post-
emergency catharsis. Partly, it was an attempt to refurbish the image of the
court tarnished by emergency and also attempt to seek news, historical
bases of legitimisation of judicial power".4
Giving new interpretation to Articles 14, 19 and 21 for affirmative action,
Justice P.N. Bhagwati viewed Constitution as a tool of social revolution. The
Asiad Labour case delineated the evolution of PIL in India during the
construction-boom in Delhi before the Asian Games in 1982, migrant labour
from various parts of the country were denied the statuary minimum
4Upendra Baxi, "Taking Suffering Seriously : Social Action Litigation in the Supreme Court of India. In P.K.
Gandhi (ed), Social Action Through Law, (Concept Publishing Company, New Delhi, 1985), p.63.
7
wages, and made to live in the streets of Delhi, by contractors. The PUDR's
locus standing on the question, against which the court granted the right of
PIL. Subsequently the administration questioned the veracity of the report.
After the court appointed investigations corroborated the PUDR report, the
court made the administration responsible to enforce the minimum wages
regulation even in cases of labour employed by Private Contractors. Since
then, till the construction was completed the labourers were specially
watched by the contractors and officials to ensure that they did not come in
contact with civil rights activist. Justice Bhagwati's judgements in the case
of Judges Transfer (1982), Asiad Labour (1982)5 and Bandhua Mukti Morcha
V. Union of India (AIR 1984 SC802) delineated a line of constituttonal
development that earmarked the evolution of new dimensions of law and

justice in the country. All these events and trends that emerged in the Indian
judicial system paved the way for the introduction of PIL - "a system", as
Justice V.R. Krishna lyer, describes "of judicial remedies for peoples
maladies". Besides a number of other factors also account for the

introduction of PIL in our judicial system. They can be discussed in the
following way.
a. In the decades since independence there set in a sharp decline of values in
our public life. As a consequence politics of manipulation gathered
momentum. The aim of this kind of politics is to consolidate power and use
the agencies of the State for private purpose. This was abetted by the
absence of effective and significant opposition and lack of vigilant public
opinion and watchful press. All these initiated a process in which
politicians tinkered with the rules of the game in their ruthless pursuit of
power. The upshot of the whole thing was the manipulation of politics for
their personal interest. Titles trend is quite discernible in the third
5Aswini K. Ray, Civil Rights Movement and Social Struggle in India, Economic and Political Weekly,
voi.-XXI No. 28, July 12, 1986.
8
world countries where standards of public life are in a fluid state. Since
there are no effective controls on rulers, they feel that they can get away
almost with anything. That means there is no effective accountability,
formal and technical procedures notwithstanding. This wideness the
credibility gap between people and managers of political system.
b. Governmental lawlessness is another major factor in delegitimizing our

system. It may appear strange that the government which is the
custodian of law and order itself happens to be a major law-breaker in
the country.
c. The political system is responsive to person having capacity for mischief.

In such a state of affairs law bindingness is at a discount. To cite just one
instance: Bearer Bonds Scheme. Did not the scheme provide the tax-
evader an edge over an honest tax-payer? The issue was brought before
the Supreme Court but the Court in the words of Prof. Upendra Baxi
"repelled the challenge to Bearer Bonds Act" and delivered a judgement
which in the words of Prof. H.M. Seervai "Puts a premium on tax
evasion, dishonesty, fraud and crime." Obviously the average citizens'

enthusiasms for the polity are dampened. He is quite right in concluding
that the executive is impotent and powerless in the face of illegal
challenges to its authority. The only way it chooses to deal with certain
forms of organised illegality is to confer legality on it to regularize it.
And all this tells adversely upon the credibility of the system.
d. The apathy of the administration towards the countless vulnerable millions
living in poverty and squalor places a big question mark before our system.
In what respect is the system useful to these people? What are they to gain
from it? Periodic elections, promises by national leaders, countless schemes
for the poor and the numerous welfare laws – these are just paper schemes.
At the practical level the administration is either
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slothful or obstructionist or apathetic or even revengeful. In the British

days Bureaucracy in India was described as 'the steel frame of the British
Empire'. We would not be exaggerating if we describe bureaucracy in
free India as the steel frame of elitism. Democratic temper goes ill with
elitist officialdom. That is why; the common citizen is compelled to
question the efficiency and even the intentions of bureaucrats. Their
accountability is a mystique.
IV. PUBLIC INTEREST LITIGATION AND PRIVATE INTEREST

LITIGATION
Public interest litigation may be contrasted with private interest litigation

where there is a dispute between the two parties only. But public interest
litigation is litigation which is initiated not for the benefit of one individual
but for the benefit of a class or group of persons – those who are denied
their constitutional or legal rights. Public interest litigation recognised the
right of a person to sue in the "Public interest", though he himself might
have no individual grievance.6
In Janata Dal v. H.S. Chowdhry, while defining the public interest litigation,
distinguished it from Private litigation, Supreme Court upholds:
In a private action, the litigation is bipolar; two opposed parties are locked in a
confrontational controversy which pertains to the determination of the legal
consequences of past events unlike in public action. In contrast, the strict rule
of locus standi applicable to private litigation is relaxed in Public Interest
Litigation (PIL) and a broad rule is evolved which gives the right of locus to
any member of the public acting bonafide and having sufficient interest in
instituting an action for redressed of public wrong or public injury but who is
not a mere busy body or a meddle- some interloper, since the dominant object
of PIL is to ensure observance of the provisions of the
6S.L.A. Khan, Justice Bhagwati on Fundamental Right and Directive Principles of State Policy, Deep
& Deep Publication, New Delhi, 1996, p.176.
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Constitution or the cause of community or disadvantaged groups and

individuals or public interest by permitting any person, having no personal
gain or private motivation or any other oblique sufficient interest in
maintaining an action for judicial redress for public injury to put the judicial
machinery in motion.
V. SHORTCOMINGS OF PUBLIC INTEREST LITIGATION
Critics argue that the liberal "rule of locus standi which has given birth to
the concept of PIL will encourage vexatious litigants to file unmeritorious
charges in a large number, thus allowing them to abuse the process of the
court, and also cause further delay in the administration of Justice. This
would open a "flood gate of litigation".7
In Bar Council of Maharashtra v. M. V. Dabholker (AIR 1975 SC 2092), V.R.
Krishna lyer J. replacing this criticism observed: The possible apprehension

that widening legal standing with a public connotation may unloose a flood
of litigation which may overwhelm the judges is misplaced because public
resort to court to suppress public mischief is a tribute to the justice system.
In Fertilizer Corporation Kamgar Union (Regd.) v. Union of India, (AIR 1981
SC 844), Krishna lyer, J., pointed out that law is a social auditor and this
audit function can be put into action only when someone with real public
interest ignites the jurisdiction. He further pointed out that all and sundry
will be litigation happy and waste their time and money and the time of the
court through false and frivolous cases. In the same manner, "Schwarth and
Wade also express the view that "Litigants are unlikely to expend their time
and money unless they have real interest at stake. In the rare cases where
they wish to sue merely out of public spirit why should they should be
discouraged. "
7 M.J. Antony, "Court as Watch-dog of Citizen's Rights", Indian Express, 13 August, 1981.
11
Another criticism hurled against PIL is that it can lead to a confrontation

between the judiciary on one hand, and executive and the legislature, on the
other. The effect of such confrontation may undermine the prestige of
judiciary and will impair its ability to discharge its traditional function.
It is submitted that the socio-economic policies enshrined in the various
Directive Principles of State Policy impose a duty on all the three organs -
legislature, executive and judiciary, to apply them in making laws. Where
one of the organs fails to discharge its assigned role, it becomes the duty of
other organs to fulfill the constitutional mandate, otherwise, all
constitutional promises will become "dead letter". In PIL system, the
judiciary acts anywhere the administration had failed to discharge its
assigned function. In Bandhua Mukti Morcha v. Union of India, (AIR 1984
SC 8027), the role of the Court in PIL matter has rightly been explained
where it was observed "when the court entertains public interest litigation,
it does not do so in a caviling spirit or in a confrontational mood or with a
view to tilting at executive authoring or seeking to usurp it, but its attempt
is only to ensure observance of social and economic programmed for the
poor and have-nots". Thus, entertaining of public interest litigation will not
undermine the prestige of the court but it will raise the image of the
judiciary, for, it will protect the rights of those people for want of one or the
other reason could not come to the court of law for justice".
Last but not the least in public interest litigation the court lacks the expertise to
deal with some specific question of complex nature or for ascertaining certain
facts, or making legal investigations. In response to such draw back the court
has developed a technical system of appointing commissions or committees
consisting of a district judge, a Professor of Law, a journalist, an officer of the
court, and sometimes a social scientist for the purpose of carrying out an
enquiry or investigation and making report to the court. This has already been
approved by the court in its various decisions.
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In Rakesh Chandra v. State of Bihar, (AIR 1989 SC 348), the Supreme Court in
a public interest litigation, after not being satisfied with the scheme fur!lished
to it for improving conditions of mental hospitals, decided to monitor its
management and a committee was set up for this purpose.
Similarly, in Keshen v. State of Orissa, (AIR 1989 SC 677) the Supreme Court
treated the letter of the petitioner as public interest litigation wherein it was
alleged that there was starvation deaths of the inhabitants of the districts of
Koraput and Kalahandi of the State of Orissa due to utter negligence and
callousness of the administration and Government of Orissa. The Supreme
Court pointed out that it is the duty of the Government to prevent such deaths
and directions were issued to reconstitute a committee to keep a watch on the
measures taken and which may be taken in future to prevent deaths due to
hunger, poverty and starvation.
VI. JUDICIAL ROLE AND SOME GUIDELINES
FOR PUBLIC INTEREST LITIGATION
Public, interest litigation as a judicial mechanism to redress violation of

people's rights "has many challenges to face, many questions to answer and
many strategies to develop before it can get institutionalized in the judicial
process, Judiciary is always cautious of this fact and while entertaining
public interest litigation it has evolved some principles and has laid down
certain guidelines which will definitely prevent the abuse of misuse of this
new potent weapon in the judicial armory for the protection of socio-
economic rights of the masses of India.8 "

While explaining the object of Public Interest Litigation, the
Supreme Court of India in Bihar Legal support Society, New Delhi v. Chief
Justice of India maintained : "The strategy of public interest litigation has been
evolved by this court with a view to bringing justice within the easy
8Paramjit S. Jaswal, Directive Principles Jurisprudence and Socio-economic Justice in India, APH
Publishing Corporation, New Delhi, 1996, p.633.
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reach of the· poor and disadvantaged section of the community. The reason
is that the weaker sections of Indian humanity have been deprived of access
to .justice for a long time because of their poverty, ignorance and illiteracy.
Thus, the underlying purpose of the public interest litigation is to bring
justice within the reach of every man and at the doorstep of every needy
person.
However, for the better functioning of public interest litigation, the
Supreme Court has laid down the following guidelines:
i. In public interest litigation there is no justification to the resort to

freedom and privilege of criticizing the proceedings of the court
during their pendency by persons who are parties and participants
therein.
ii. In public interest litigation, the petitioner has a right to maintain

his/her dignity before the court, but the court can point out the
functional impropriety committed by the petitioner and that would
not impair the dignity of the petitioner.
iii. Once the proceedings are initiated, parties can not be allowed to
address the. letters directly to judges.
iv. The petitioner appearing in person is not entitled as of right to
withdraw. The petitioners can be allowed to withdraw him/her from the
proceedings but that would not result in the withdrawal of the petition
itself: only a private litigant can abandon his claims. The status of
dominus litis cannot be conferred on a person who brings a public
interest litigation, as that would render the proceedings in public
interest litigation vulnerable to and susceptible of a new dimension
which might, in conceivable cases, be used by persons by personal ends
resulting in prejudice to the public weal.
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v. No litigant can be permitted to stipulate conditions with court by the

continuance of his or her participation in any public interest
litigation.
vi. Frivolous or vexatious writ petition in the name of public interest

litigation, filed mala fide and arising out of enmity between the
parties can not be allowed. The court has to protect the society from
the so called protectors.
vii. Mere objection based on religious belief or personal philosophy

cannot be .treated as legal disability entitling third party as "next
friend" to file public interest litigation.
viii. Public interest litigation espousing cause of an individual is

permissible only if it falls within the purview of policy decision of
general application. It cannot be used to remove distress of any
particular individual or satisfy that individual's whims, however
pious that may be.
ix. Converting individual dispute into public interest litigation should

be discouraged.
From the perusal of above-mentioned guidelines laid down by the
courts in public interest litigation, it has been observed that one need
not be an unconditional enthusiastic of public interest litigation. It
required adequate public checks and controls to prevent its possible
abuse. Since in India, public interest litigation is both judge led and
judge induced, such control will have to be exercised by the judges
themselves to prevent abuse of public interest remedy.
VII. CONCLUDING REMARKS
Public interest litigation is a device enunciated by the Indian Judiciary to
broaden judicial remedies. Its purpose is to bring a quick and cheap relief to
poor and helpless class of people. It is also a device through which quick relief
has been provided to victims of arbitrariness. It is populist in character
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no doubt. But this populism is effective for the sake of justice. In an age in
which the responsibilities of administration are increasing day by day, there

is growing need of judicial review of administrative action. The growth of
public interest law in USA has promoted many nations to follow this
technique to reform their respective judicial process. Public interest
litigation in India is closely linked with this phenomenon that excesses,
great or small, committed by administrative officers, arbitrary exercise of

authority without due care or caution, inordinate delays in responding to
the just claims of citizens, gross negligence in the discharge of specific duties
and obligations - there are thousand and one ways in which the
administration browbeats the average man. These are subtle forms of

arbitrariness. These have become an off shoot of an ever expanding
administrative network in a developing society like India.
India is a democratic welfare State. Its constitutional provision - Articles 14, 21
and 22{ 1) in Part Ill and Articles 37, 38 and 39A in Part IV - and preambles
promises to secure socio-economic justice for all on the basis of equal
opportunity constitute the basis for the introduction of legal aid movement in
the judicial system of our country. Legal aid, however, is no ·longer a charity
or benevolence of the Government. It is a constitutional right and an essential
requirement of every citizen and of administration of Justice.
The proclamation of National emergency (1975-77) by Mrs. Indira Gandhi,

the Prime Minister of India and its far reaching consequences in terms of the
demand for restoration of civil and democratic rights, restructuring of the
State apparatus and the emergence of various civil and democratic rights
groups provided the institutional root for the an option of PIL in the Apex
Court of India. The civil rights movement in_ the country led to a more
passionate and pro-people approach to· defend the democratic rights of the
people. The emergence of new activist judges like V.R. Krishna lyer and P.N.
Bhagwati who were sensitive enough to the grievances of the
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oppressed and unprivileged started a new movement called legal aid
movement which aimed at providing justice to the poor at a cheaper price.

Besides, various committees such as Bhagwati Committee of Gujrat on
Legal Aid (1971 ), Krishna lyer Committee on Procedural Justice (1973), a
High Level Committee consisting of Justice Krishna lyer and Bhagwati
(1976), Law Reforms Commission in Rajasthan (1975), Committee on Judie
care Government of India ( 1976) were constituted to bear the testimony of

the intentions of the Government to help the poor. Decline of values in
public life, Governmental lawlessness and apathy of administration
towards the needs and grievances of citizens in the country also necessitated
to the evolution of PIL in our Apex Court. These are some of the sketches
against which the Supreme Court has introduced innovations in the legal
system.
The Directive Principles of State policy enshrined in Article 39A dealing with
equal justice and free legal aid was interpreted by the Supreme Court as a part
of fundamental right to life, liberty enshrined in Article 21 of the Constitution.
"The courts have emerged" as Justice Goswami points out, "as the last recourse
for the oppressed and the bewildered", .It is through courts only that injustice
and errors committed by administrations can be corrected. It is also the only
forum where a citizen may ·agitate his view points against any kind of
oppression, repression or suppression of his basic rights as enshrined in the
Constitution. The introduction of PIL in the Supreme Court has been subject to
criticism on .many grounds. 'Flood gate of litigation', confrontation of Judiciary
on ·one hand, and the legislature and executive, on the other, on certain basic
issues including protection of citizens rights and the lack of expertise
knowledge to deal with peculiar PIL cases are the main. Unnecessary
investment of time, money and resources on unmeritorious petition on PIL
cases is not expected from a member of the public unless it has a real public
interest, socio-economic policies as
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enshrined in the Directive Principles impose a duty on each of the three

organs - legislature, executive and judiciary, to apply them in making laws.
In this case, the judiciary is assigned a duty to correct the legislative and
administrative flaws as per the constitutional mandate, thus, there should
be no contradiction among the three organs of the government as far as

protection and promotion of human rights of people is concerned. As far as
the third and important criticism of PIL is concerned, it is submitted that

appointments of committees and commissions consisting of legal expert,
Law Professor, Social Scientist and Journalist in certain peculiar PIL cases
could be able to deal with some specific questions of complex nature of PIL
cases is withered away the criticism on its part.
Since PIL in India is 'Judge-made and judge-led', it is up to the Judges to

make further development in its proper perspective. From this point of
view, there are five ingredients of a humane and democratic judicial system.
Justice Krishna lyer has described it as the Panchsheel of democratic judicial
system.
First, we should have a system of justice, civil, criminal and other, in which
the average citizen has access without hindrances.
Second, we should have simple, non technical, inexpensive, informal,

flexible, compassionate and realistic procedure. This procedure would not
tell off the citizen but would admit him and other social-action group. This
is a way to broaden judicial relief.
Third, there should be institutional diversity and plurality of remedies. All
these should be adjusted with various forms of litigation and with various
structures of people. There should be mobility, dynamism and ability to use
such resources and materials as are necessary for bringing out truth. No
technicalities should be done keeping in view the broad frame of justice, equity
and good conscience. The court should award "socially just relief."
18
Fourth; a new kind of 'judicial engineering' is required in our judicial

system. This processual justice should be based on equal justice, local trails
and fair facilities to all disputants irrespective of their disabilities, economic
and non-economic. We should have a clear policy on public interest, law,
social action jurisprudence and lawyers for the people.
Fifth, preventive justice, legal literacy, negotiated settlements, cooperative

adjustment, reconciliation, arbitration and other non-formal methods must
be found out. There is need of Para-judicial bodies and voluntary social
organisations to work in this field. These bodies should be given statutory
powers to work in the field of social justice. This panchsheel of legal reforms
intends to make the judge accountable to the nation. It changes him from
being an anemic umpire into an affirmative actor. These would assure
decentralisation of state process, a revolution in civil rights and socialistic
pattern of society.
19
INTRODUCTION
The Constitution of India assured greater protection of individuals rights and

afforded larger freedom to the court to look into executive lapses. The judiciary
showed a great promise in its constitutional career in preserving the liberty and
freedom of the people. In India the court is an arbiter between the people and the
executive. Each citizen of India has inherent right to challenge the constitutionality of
any executive enactment passed by any executive authority if his interest is affected
by it. By judicial interpretations the fundamental rights, distribution of executive
powers and other constitutional restrictions and limitations were provided a new
meaning. The fundamental object of judicial review is to infuse life in the dry and
abstract postulates of the constitution enabling it to be a living organism so as to satisfy
the needs of the time.
Articles 32 and 226 of the Indian Constitution makes provisions for the system of writs
in the country. Under clause (2) of Article 32 the Supreme Court is empowered to issue
appropriate direction, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition quo-warranto and certiorari for the enforcement of any
fundamental rights guaranted by Art III of the constitution. By this article the Supreme
Court has been constituted as a protector and guarantor of the fundamental rights and
once a citizen has shown that there is infringement of his fundamental right the court
cannot refuse to entertain petitions seeking enforcement of fundamental rights. 9
Article 226(1) empowers every High Court, notwithstanding anything in art.32,

throughout the territories in relation to which it exercises jurisdiction to issue any
person or authority, including appropriate cases any government, within those
territories directions, orders or writs including writs in the nature of habeas corpus,
mandamus, quo warranto, prohibition and certiorari for the enforcement of
Fundamental Rights or for any other purpose.
9 Ramesh Thapper V. State of Madras AIR 1950 SC 124 at p.126.
20
Article 32 and Article 226 are expressed in broad language. The Supreme Court,
nevertheless, ruled that in reviewing administrative actions, the courts would keep to
broad and fundamental principles underlying the pre-progative writs in the English law
without however importing all its technicalities. 10 The result of this approach has been
that by and large the scope of judicial review in India under arts. 32 and 2 26 is similar to
what it is in England under the prerogative writs. But there are a number of cases where
the Supreme Court has deviated from the English approach.11
Under articles 32 and 226, the courts enjoy a broad discretion, in the matter of giving
proper relief if warranted by the circumstances or the case before them. The courts
may not only issue a writ but also make any order, or give any direction, as it may
consider appropriate in the circumstances, to give proper relief to the petitioner. 12 It
can grant declaration or injunction as well if that be the proper relief. It would not
throw out the petitioner's petition simply on the ground that the proper writ or
direction has not been prayed for. In practice it has become customary not to pray for
any particular writ in the petition filed before the court, but merely to make a general
request to the court to issue appropriate order, direction or writ. In making the final
order, the court may not mention any specific writ but merely quash or pass
declaratory order or give any other appropriate order. There thus exists a good deal
of flexibility in the matter of choice of remedy to suit the specific circumstances of each
case.
10 Basappa V.Nagappa, A.I.R. 1954 S.C.440.

11 Gujrat Steel Tubes V. Mazdoor Sabha, A.I.R. 1980 S.C. 1896
12 K.K.Kochunni V.Madras, A.I.R.1859: SC 725; P.J.Irani, V. Madras, A.I.R. 1961S.C. 1731.
21
SCOPE OF ARTICLE 32
Article 32 provides a guaranteed, quick and summary remedy for the enforcement of
Fundamental Rights. A person complaining of infraction of any of his Fundamental
Rights by an administrative action can go straight to the Supreme Court for
vindication of his right, without being required to undergo the dilatory proceedings
from the lower to a higher court as
one has to do in any ordinary litigation. The Supreme Court has thus been constituted,
as the protector and guarantor of Fundamental Rights.
In Prem Chand v. Excise Commissioner, the Supreme Court struck down one of its
own rules, requiring furnishing of a security to move a writ petition before the court
under art.32, as unconstitutional on the ground that it retarded the assertion or
vindication of the Fundamental Rights under art.32. But a rule requiring deposit of
security for filing a petition of review of an order made earlier by the court dismissing
a petition under art.32 has been upheld as valid as it does not restrict the right to move
the court under art.32.13
A notable aspect of art.32 is that it can be invoked only when there is an administrative
action in conflict with a Fundamental Right of the petitioner. It cannot be invoked if no
question of enforcing a Fundamental Right arises. While dealing with a petition under
art.32, the court would confine itself to the question of infringement of Fundamental
Rights and would not go into any other question. Article 32 cannot be invoked even if an
administrative action is illegal unless petitioner's Fundamental Right is infringed. Thus a
petition merely against an illegal collection of income tax is not maintainable under art.32,
for the protection against imposition and collection of taxes except by authority of law
falls under art.265 which is not a Fundamental Right. But when an illegally levied tax
infringes a Fundamental Right, then the remedy under art 32 would be available. 14 In Tata
Iron and Steel Co. V. S.R. Sarkar , the company
13 Lala Ram v. Supreme Court of India, A.I.R.1967 S.C. 847.

14 Bombay v. United Motors, A.I.R.1953 S.C.252.
22
paid tax under the Central Sales Tax Act to the State of Bihar. The State of West Bengal
also sought to levy the tax under the same Act on the same turnover. In such a fact
situation, a petition under art. 32 was entertained by the Supreme Court because the
Act in question imposes only a single liability to pay tax on interstate sales. The
company having paid the tax to Bihar (on behalf of the Central Government), the
threat by west Bengal to recover sales tax (again on behalf of the Central Government)
in respect of the same sales prima facie infringed the Fundamental Right to carry on
trade and commence guaranteed by art.19(1)(g).
23
Thus the main purpose of Article 32 is to protect the individual against the
infringement of his fundamental rights. The threat to fundamental rights may arise
from various sources. Judicial openion is clear that the authorities falling under the
Government and Parliament of India, Government departmental undertakings and
Agencies incorporated by statutes are amenable to the writ jurisdiction of the Supreme
Court and are included within the definition of state in Article 12.
Agencies falling under the registered statutes e.g. public or private companies,
government companies registered societies may be included within the term 'State'
and, therefore, are amenable to the writ jurisdiction of the Supreme Court, if such
authorities are instrumentalities or agencies of the Government. Courts of law are not
mentioned as such in Article 12 but they may pose a threat to the Fundamental Rights
of the people in exercise of their administrative powers. In Prem Chand Garg v. Excise
Commissoner, the Supreme Court struck down certain rules framed by it as violative
of Fundamental Rights.
24
WRIT JURISDICTION OF HIGH COURT UNDER ARTICLE 226;
The writ jurisdiction conferred on the High Courts by art.226 can be invoked to enforce
not only a Fundamental Right but a Non-Fundamental Right as well. The jurisdiction
conferred on the High Courts under art.226 is broader in range than that conferred on
the Supreme Court under art.32, for while Supreme Court acts only when there is an
infraction of a Fundamental Right, a High Court may act when a Fundamental Right
or any other legal right is violated. For example, when a tax levied without authority
of law infringes a Fundamental Right, action against it can be taken both under art.32
as well as under art. 226; but when it does not infringe a Fundamental Right, only art.
226 can be taken recourse to.15 Thus the High Courts have a wider power to issue writs
against 'any person or authority' for the enforcement of Fundamental Rights and any
other legal right. As regards the 'person and authority' against whom such writs can
be issued, the law seems to be in a thicket of inconsistencies. There is no controversy
about the writs of habeas corpus and quo warranto which can be issued against
private individuals and public office respectively.
Therefore, the discussion will mainly concentrate on writs of certiorari, prohibition and
mandamus. The writ can be issued against public acts of the President of India, Governors,
Union and State Governments, ministers, government officers and departments, and
other bodies given in the Constitition i.e. Union Public Service Commission, Election
Tribunal, Finance Commission, Water Dispute Authority and Advocate General of India.
In Election Commission of India v. Venkata Rao16, the Madras High Court had issued a
writ against Election Commission having it permanently located at New Delhi. The Court
held that the Madras High Court had no power to issue a writ against Election
Commission which is outside its jurisdiction. The mere fact that the effect of the order of
a person or authority are produced within
15 Bombay v. United Motors, A.I.R. 1953 S.C. 252.

16 A.I.R. 1975 S.C.434.
25
the territory of the High Court if the cause of action arises within its jurisdiction is not
sufficient to insist the High Court with jurisdiction under Art.226 to issue a writ. 17 The
Punjab High Court can only issue a writ to central authorities which are located in
Delhi. As a result of the Supreme Court decision relief against the Central Government
could only be sought in Delhi.
17 H.Esmail v. Competent Officer, A.I.R. 1967 S.C. 1244.
26
DISCRETIONARY REMEDY-
The remedy provided for in Article 226 is a discretionary remedy and the High Court
has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved
party can have an adequate or suitable relief elsewhere.18 This remedy cannot be
claimed as a matter of
right. The High Court must exercise its discretion on judicial considration and on well-
established principles unless the High Court is satisfied that the normal statutory
remedy is likely to be too dilatory, or difficult to give reasonable, quick relief, it should
be loath to act under Art.226. The High Court should be careful to be extremely
circumspect in granting these reliefs especially during the pendency of criminal

investigations. The investigation of a criminal case is a very sensitive phase where the
investigating authority has to collect evidence from all odd corners and anything that
is likely to thwart its cause may inhibit the interests of justice. But the rule that it may
refuse to grant any writ where alternative remedy is available is only a rule of direction
and not a rule of law, and instances are numerous where a writ had been issued in
spite of the fact that the aggrieved party had other adequate legal remedy. Under
article 226, the jurisidction of the High Court to issue writs etc., extends to the state
over which it has jurisdiction, and also to territories outside that state, if the
government, authority or person is within those territories and if the cause of action
in relation to the government etc., wholly or in part, arises within the State. For
exercising such outside jurisdiction, it is not necessary that the whole of the cause of
action should arise within the state, it is sufficient if only a part of the cause of action
has arisen within the state.
18 Rashid Ahmad v. Income tax Investigation Commission, A.I.R. 1954 see 207.
27
WRITS UNDER INDIAN CONSTITUION
“The Habeas Corpus secures every man here, alien or citizen, against everything which is not
law, whatever shape it may assume.” -Thomas Jefferson
Our Constitution and the evolution of writs
Our Constitution, which is the foremost framework, entails the rules and guidelines;
guiding, preaching and backing all the rights available and duties imposed upon the
citizens as well as the non-citizens of the nation. It is considered as the torchbearer of
all the rights the citizens possess. One of such rights is what we call as the right of
WRITS‟ petitions. No provision or legal principle listed in the constitution would truly
be meaningful unless and until there are mechanisms backing its enforcement most
efficiently. The judiciary has thus been given the independence in these matters
wherein there is a call for issuing such writs so as to protect the basic essence of our
constitution. The concept of issuance of writ has achieved its significance as it is one
such enforcement device leading to achieving the benefit of fundamental rights in
their literal sense. A writ is defined as a kind of special order sealed to any authority,
government or any sovereign body in furtherance of abstinence or execution of a
specified act. Our constitution catalogs five writs which are PREROGATIVE WRITS,
meaning they can be considered as a privilege or right exclusively for a specific
category or class. Types of Writs and their meaning These writs have been dealt with
in the Article 32 and Article 226 of our constitution mainly because there are two ways
of approaching the court of law though writs i.e. Supreme Court and High Court
respectively. The writs available are namely Habeas Corpus, Mandamus, Prohibition,
Certiorari and Quo Warranto.
i. Writ of Habeas Corpus – This writ(meaning, you may have the body) has been
given the status of the most important writ out of all the five as it deals majorly
on the liberty and justice of an individual. It is issued in matters when there is
a need to produce the detenu before the court so as to judge the preconditions
and dimensions of his arrest.
28
ii. Writ of Mandamus- This writ (meaning, a command or an order) focuses upon
ordering any corporation, authority or any other person to perform or execute
any public duty by the Constitution, a statute or common law. Hence, it‟s a
kind of compelling remedy for carrying out the duties which one is supposed
to do but is declining.
iii. Writ of Prohibition- This writ has been termed as a preventive prerogative writ as
its issuance comes into picture whenever the higher courts or authorities sense a
need of prohibiting or preventing lower courts, tribunals, officers or individuals in
exercising the powers which are not vested in them or which they are not legally
and judicially entitled to possess. This writ can be issued only against a judicial or
quasi judicial body and has is known as a judicial writ.
iv. Writ of Certiorari- This writ (meaning, to be informed of) mentions the concept
of judicial review wherein approval is acquired from the higher court for the
re-examination of the actions of the lower courts so as to ensure taking up of
judicial decision.
v. Writ of Quo Warranto- This writ (meaning, by what authority/warrant)

requires a person to show the authority or the right they claim to possess on
the basis of which the warrant has been issued. It is not basically a petition, but
a demand to ask for the authority and hence is considered as a basic legal
remedy.
Issuance of any of these five writs has to be by the way of Article 32 or Article 226 for
Supreme Court and High Court respectively. Article 226 has a broader jurisdiction
than that of article 32 as SC can issue writs only when there is a fundamental right
infringement, on the other hand, HC can issue these in both ordinary legal rights
‟violation and fundamental rights‟ violation. Article 3219 has been called as a
19 Remedies for enforcement of rights conferred by this Part:

(1.) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.
29
Constitutional Remedy for the enforcement of fundamental rights and is the most
crucial article of all without which Constitution‟s existence can be questioned as it is
the heart and soul of the Constitution. The jurisdiction to issue prerogative writs came
with the establishment of the Supreme Court by the Regulating Act of 1773.
The writ refers to a legal procedure which prevents the government to hold a person
unnecessarily i.e. without any just cause and provides for the explanation given by the
detainer to the court of law regarding the grounds of the detention of the detained person.
The writ thus became a means of testing the legality of detention and in this form it may
be regarded as the immediate ancestor of the modern writ of habeas corpus. 20 The
celebrated writ of Habeas Corpus is described by May as “the first security of civil liberty”.
This writ holds great significance as it is the most vital right available to a detenu to get
protection of personal liberty and justice in the court of law by letting the judge to know
that on what ground has the prisoner been detained or arrested or confined and to let him
free if there is no proving of legal justification against such arrest, confinement or
imprisonment. Julius Stone described it as a picturesque writ with an extraordinary scope
and flexibility of application. The major object behind it being called the great writ is that
it provides for a prompt and effective remedy against any restraint which is illegal and
unreasonable and its sole purpose lies in the enforcement of personal freedom and right
of liberty. Personal liberty being the very essence carrier of our Constitution needs to be
well taken care of and hence writ of habeas corpus has proven itself as one of such steps
towards establishing of civil or personal liberty protection. The great constitutional
importance of the writ of
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by
this Constitution.
20Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, 678-79 : AIR 1973 SC 2684, 2687-88:
(1974) 1SCR 621.
30
habeas corpus lies in the fact that „it is available to the meanest against the
mightiest‟.21 The writ of habeas corpus or the habeas corpus cum causa wherein a
person is called on command and the grounds of his arrest are looked into cautiously
has been granted as matter of right and thus cannot be held as discretionary at the
hands of court.
Different dimensions of the writ of Habeas Corpus Few important aspects relating to
this writ of habeas corpus are:
1. Nature of Proceedings: Regarding the question of whether habeas corpus

proceedings are civil or criminal in nature, it was held by the court of law in
Narayan v. Ishwarlal that it would depend on the nature of the proceedings in
which the jurisdiction has been implemented.
2. Who may apply: Regarding the question of who may apply for the writ it has
been stated by the rule of law that not only the prisoner or the detained, but
any other person who know that merits of the case, acquainted with the facts
and circumstances and has recognized interest in moving of such application
in front of the court can apply under Art. 32 and Art. 226 of the Constitution.
3. Conditions of refusal: There may be conditions under which the habeas

corpus may be refused which are as follows:
i) when the person or authority i.e. detainer does not come under the
territorial jurisdiction of the court,
ii) when the imprisonment is in nexus with the order or decision rendered
by the court,
iii) when the detenu has already been set free,
iv) when the detention has been validated by removal of defects,
v) when the writ is sought during emergency situations,
vi) when the petition has been dismissed by a competent court by looking
into the merits.
21 R. v. Vine Street Police Superintendent, (1916) 1 KB 268
31
4. Alternative remedy: Habeas corpus being a writ of course or right may be

refused if there is no cause shown. It, however, cannot be refused on the ground
that an alternative remedy is available to the applicant.22
5. Improper pleading: The question regarding whether the writ petition can be set
aside if the pleading made is improper has been made clear by the court of law
in Ranjit Singh v State of Pepsu23 by stating that “the whole object of
proceedings for a writ of Habeas Corpus is to make them expeditious, to keep

them as free from technicality as possible and to keep them as simple as
possible”.
6. Burden of proof: In regard to the question pertaining to upon whom the burden of
proof lies, it was stated that it is the responsibility of the authority which is
questioned for unlawfully detaining a person to prove that the grounds were
satisfactory enough to arrest and confine a person behind the bars. But if it is
alleged by the detenu (viz. the person detained) that the order of detention is mala
fide, the burden of proof is on the detenu and he has to establish it. 24
7. New pleadings: The question regarding whether or not a new plea can be raised
during the hearing of the writ petition, it has been stated that no fresh issue can
be evoked during the pleadings of writs but Habeas Corpus is an exception to
this. But no such plea can be allowed if the respondent has no opportunity to
rebut or controvert the plea and it may result in prejudice to the other side.25
8. Territorial jurisdiction: Regarding the territorial jurisdiction, Supreme Court‟ s
jurisdiction under article 32 extends over all the authorities; be it inside the
territory of India or outside it, provided they must be under the control of the
Government. Whereas in case of High Courts‟ jurisdiction by article 226, it applies
to all the authorities lying within the control of that high court or where
22 R. v. Pell, (1674) 3 Keb 279: 84 ER 720

23 Ranjit Singh v. State of Pepsu AIR 1959 SC 843, 845-46: 1959 Supp (2) SCR 727
24 Ram Singh v. State of Delhi, AIR 1951 SC 270: 1951 SCR 270: 1951 SCR 451
25 Arun Kumar v. State of W.B., (1972) 3 SCC 893
32
the cause of action arises. Res Judicata:When the question of whether principle
of res judicata applies in case of writ petition of Habeas Corpus, it is held that,
“So far as Indian Law is concerned, it is fairly well settled that no second
petition for a writ of habeas corpus on the same grounds is maintainable if an
earlier petition is dismissed by the court.”26But this principle would not stand
where the forums in which subsequent filing is there, have independent

existence from one another and are entirely separate in competency and
jurisdiction.
9. Preventive Detention: With the concept of Habeas Corpus comes the wide ambit
of Preventive Detention Theory which is a precautionary activity and not meant as
a punishment. In other words, it is not a penalty for the past activities of an
individual but is intended to pre-empt the person from indulging in future
activities sought to be prohibited by the relevant statute and with a view to
preventing him from doing harm in future. 27 Further article 22 governs the
procedure of preventive detention and only one enquiry is needed to be kept in
mind i.e. regarding strict adherence of law requirements. Parliament is empowered
to enact a law of preventive detention for reasons connected with
(i) defence (ii) foreign affairs (iii) Security of India (iv) Security of State (v)
maintenance of public order (vi) maintenance of supplies and services essential
to the community. However, there may be monitoring of such detention by the
way of process of judicial review.
10. Validation order of detention: There may be fresh validation order of detention
being passed by the government in cases when old order suffers from a formal
defect or a flaw which is technical in nature. As a general rule, once an order of
detention has expired, revoked or is quashed and set aside no fresh order of
detention on the same facts and on the same grounds can be made. 28 If,
26 Lallubhai Jogibhai v. Union of India, (1981) 2 SCC 427

27 A.K. Gopalan v. State of Madras, AIR 1950 SC 27
28 Chaggan Bhagwan v. Kalna, (1989) 2 SCC 318
33
however, new facts or fresh or additional grounds have come into existence
after revocation or setting aside of the order, fresh order can be passed.
a) Ex parte grant: Unless the facts and circumstances so demands or to meet the
ends of justice, never can this writ be granted ex parte (i.e. for one party).
b) Bail: The jurisdiction of the Supreme Court or a High Court extends up to

granting of bail or parole to a detenu but such power has been limited by
crosschecking of preventive detention laws. Disobedience of this writ: An
intentional and willful disobedience of a writ of habeas corpus amounts to
contempt of court. This may attract punishment of imprisonment and/or
property attachment for the one who committed the contempt.
c) Costs and compensation: The basic purpose behind issuance of this writ is
to secure release of the prisoner/detenu rather than to punish the detainer.

Although, there may be compensation granted and costs awarded in appropriate
cases on the discretion of the court.
11. Emergency proclamation: It is held by the court of law that writ of habeas
corpus would be maintainable for the enforcement of fundamental rights under
Article 20 and 21 even during the emergency proclamation time.
Landmark Judgments of Habeas Corpus Now let us have a look over few landmark
judgments for clear understanding of this writ of habeas corpus.
1. Additional District Magistrate of Jabalpur V. Shiv Kant Shukla 1976 SC

1207
This case is commonly known as the habeas corpus case as it was based upon
the issuance and validity aspects of this writ. This case was the reason behind
the 44th Constitutional AmendmentAct, 1978 and also the major decision that
Article 21 can be suspended during emergency. It basically revolves around the
emergency which was imposed during the period 1975-77 on the direction of
Smt. Indira Gandhi for the fulfilment of her own political benefits. According
to article 21 of our constitution, every person is entitled to life and liberty which
also covers the right to move to court.
34
But according to Article 359, this right was curbed during this emergency
situation whose reason was declared as threat to security of nation by the
way of internal disturbances. The whole case revolved around the basic
question of whether habeas corpus can be granted in such a situation or
even that right would be taken away subsequently.
The arguments given from the side of state were that situations of
emergency are declared for social, economic and military security of the
nation thus in such situations, the state is given the zenith power.
Nevertheless, when the state can suspend the fundamental rights of article
14 and 21, then no question arises regarding whether a person can come
with a writ petition of habeas corpus regarding these fundamental rights.
The major argument from the opposite party was that except the detention
talked about in Section 3 of MISA (Maintenance of Internal Security Act),
every other detention without any special condition fulfilment will be
considered as ultra vires of the court. Major questioning was upon the
content and essence of the presidential order and also the locus standi of the
writ of habeas corpus. The decision of the Supreme Court had its base upon
the case of Liversidge v. Anderson wherein all the rights were held as
suspended during the emergency and same was held in this case that even
the right to life can be curbed by the state while emergency is imposed. The
decision was highly criticized and this day became the black day of Indian
legal history.
2. Sheela Barse v. State of Maharashtra 1983 SCC 96:
In this case, the plaintiff who was a journalist and an activist for prisoners‟
rights wrote a letter to the Supreme Court stating that women prisoners were
assaulted in the lock up, following which a writ petition was filed by the court
and an investigative authority was sent to crosscheck the allegations made
which were found true subsequently. Thus, in this case it was held that if the
detained person can‟t file the writ petition, someone
35
else can file it on his behalf quashing the traditional approach of locus
standi.
3. Sunil Batra v. Delhi Administration 1980 AIR 1579
This case predominantly focused upon the legally enforceable rights of the
prisoners and legal sanction against their maltreatment during the
detention. It was held by the court of law that writ of habeas corpus can not
only be used for against the illegal detention of the prisoner but also for his
protection against any maltreatment or inhuman behavior by the detaining
authorities behind the bars. Thus this writ can be used not only against the
existence of the illegal detention but also checks the manner in which the
detention was subjected.
4. Kanu Sanyal v. District Magistrate Darjeeling & Ors. 1974 AIR 510:
This case dealt with the nature and scope of the writ of habeas corpus where
it was stated that it is a procedural writ and not a substantive writ. It was
also held in this case that rather than focusing upon the defined meaning of
Habeas Corpus i.e. produce the body, there must be a straightforward focus
upon the examination of the legality of the detention by looking at the facts
and circumstances of the case and hence, this case talked about the real
scope and meaning of the writ of habeas corpus.
Concluding, we may say that the writ of Habeas Corpus is rightly called the
Great Writ because it is based upon the right of liberty is the very heart and
soul of our constitution. Further only one principle must be kept in mind by
the court of law when a person is charged with detention that, “No innocent
person should be punished” and therefore before detaining a person, acute
scrutinizing of the facts and circumstances stands as a must.
36
Format of Writs
Sample Writ of Habeas Corpus
In the Supreme Court of India, New Delhi
(In exercise of jurisdiction under Art.,32 of the Constitution)
Mr. ………………………………, s/o. ………………………… village ………………..,
district …………………….., at present detained at……………………. District Jail
at……….
……………. Petitioner
Versus
(1) The State of ……… }
(2) The District Magistrate, ……….. and } Respondents.
(3) The Superintendent, District Jail, ……… }
Hon'ble Shri ………………….……., Chief Justice of India and his companion Justices
of the Supreme Court of India.
This humble petition of the petitioner above named under Art. 32 of the Constitution
of India praying for a writ of habeas corpus or such other writ, direction or order as
the court may deem fit directing the respondents to cause the production of the
petitioner in court and directing him to be set at liberty in accordance with law
respectfully.
37
Sheweth:
1. That the petitioner is a respectable law-abiding citizen of India and was arrested
by the ………………… [City Name] ……….…… [State] Police on the ………… day
of……………. 20……. and is now confined as a detenu under the orders of the second
respondent in the custody of third respondent in the District Jail at …………….
2. That the detention of the petitioner purports to be under the Preventive Detention
Act, 1950.
3. That the petitioner was given the following grounds of detention under Sec. ……
of the Preventive Detention Act, 1950 on the …………. day of ………. 20………
(i) On ………….……… you participated in the general meeting of the ..………. when
a resolution delegating full powers to …..……… to manage the affairs of
the ………..…. was passed. You also participated in an informal meeting of
the …………… workers on ………., when it was decided to hold ….……. Convention
on the …….………. day of …..… 20…… As a result of these meetings a resolution,
sponsored by ………. has been passed by the Working Committee of the …….. on
the ……… to the effect that if the …….. M. L. A's of the ………. [State] Legislative
Assembly do not voluntarily quit……., they will be compelled to do so by coercive
methods.
(ii) You have in public utterances declared yourself to be a firm believer in leadership
of….. and, according to you, he is the only person who could deliver goods to the……..
Community. You are of the view that in the long run…….. who were at present
working as henchmen of the ….……. would also have to revert to the ……..'s lead.
(iii) Now that a resolution making the intentions of the…….. very clear has been
38
passed that unlawful methods will be adopted, it is strongly believed that in

pursuance of that resolution you will commit acts prejudicial to public order.
"Your detention has therefore been ordered to ensure the maintenance of public
order."
4. That the petitioner was advised that his arrest and detention is illegal, mala fide and
capricious. One ……………… therefore moved the Hon'ble High Court of Judicature
for the State of …………. at ……….[Place] on …….. in Criminal Miscellaneous Petition
No. …… of ……. under Art. 226 of the Indian Constitution read with Sec. 491 of the
Criminal Procedure Code praying for a writ a habeas corpus for the release of the
petitioner.
5. That the said Hon'ble High Court was pleased to reject the above said petition of
the petitioner herein by its judgment dated……….
6. That the petitioner is not satisfied with the orders of the Hon'ble High Court for the
State of ………….. at ……….. [Place], and the petitioner is informed that the
said ……..…….. is separately taking steps for obtaining leave to appeal against that
order of the High Court.
7. That, in any case the petitioner is advised that his continued detention in the above
circumstances is in direct violation of his fundamental rights (as herein below
detailed) and therefore begs to move this Hon'ble Court under Art. 32 of the
Constitution of India for a writ of habeas corpus or other appropriate writ, order or
direction directing the respondents to release the petitioner forthwith on the following
amongst other
Ground
39
(i) For that none of the grounds mentioned in para 3 above has any proximate
connection or relevancy to the maintenance of public order.
(ii) For that it is an abuse of the process granted to the Executive under the Preventive
Detention Act, ……… to detain the petitioner for joining in any procession or making
of any speeches as alleged in sub-paragraphs (i) and (ii) of para 3 above. Such use
of the Act is mala fide.
(iii) For that similarly the use of the said Act for the detention of the petitioner in
respect of the alleged activities of the petitioner as mentioned in sub-paragraphs (i)
and (iii) of para 3 above is mala fide.
(iv) For that the Resolution of the Working Committee dated ………… is
unobjectionable…………. has been released from custody on the ground that
provisions of law under which he was being prosecuted, viz., Sec. 124-A and Sec.
153-A, I.P.C., etc. have been held to be ultra vires the Constitution. The whole
superstructure built by the second respondent countenanced and accepted as correct
by the High Court, in its judgment referred to above falls to the grounds.
(v) For that the learned Judges of the High Court erred in taking into consideration
the speech made by………. and linking the same with the Resolution of the Working
Committee.
(vi) For that it is not proper to hold that any alleged past activities of the appellant not
resulting in any disturbance of public order then, could from the basis of an assumption
regarding the likelihood of an imminent danger of the breach of peace now, at this
distance of time; nor could the passing of the Resolution of the Working
Committee dated……….. bring about a change in conditions as alleged with the
40
consequential apprehended disturbance of public tranquility. The assumption is

unfounded and unreasonable. Further, the petitioner was not even a member of the
said Working Committee.
(vii) For that the satisfaction of the learned District Magistrate was not based on such
materials or grounds which could reasonably form the basis of an order of detention
such as the one passed in this case. It is a camouflage to state that the allegations
contained in the said grounds were such as were likely to be prejudicial to the
maintenance of public order.
(viii) For that the detention of the petitioner is not in accordance with procedure
established by law.
(ix) For that the Preventive Detention Act, …………….. is ultra vires the
Constitution inter alia for the following reasons :
(a) It offends against the provisions of Art. 19(1) (a) of the Constitution in as much as
it proceeds to do indirectly what it could not do directly in the matter of unjustifiably
restricting the freedom of speech and expression, vide ground in sub-paragraphs (i)
and (ii).
(b) It offends similarly against the provisions of Article 19(1)(b) of the Constitution
inasmuch as it operates unreasonably on peaceable assembly without arms, vide
ground mentioned in sub-paragraphs (ii) of para 3 above.
(c) It offends similarly against the provisions of Article 19(1) (c ) of the Constitution,
vide grounds mentioned in sub-paragraphs (i) and (iii) of para 3 above.
(d) Section 3 of the said Act is contrary to procedure established by law. The
41
subjective suggestion provided for in the section is ultra vires the Constitution.
(e) Section 7 of the said Act provides for representation to the State Government itself
which is repugnant to fundamental principle of law that no man can be judge in his
own cause.
(i) For that the extension dated…….. of the detention order is ultra vires and illegal.
Further no grounds in respect of the extension of detention order have been supplied
to the petitioner.
(ii) For that the detention order itself mentions "That security of State and the
maintenance of public order," the grounds supplied relate only to the maintenance
of public order. The said detention order is in itself either vague and inoperative or
illegal.
(iii) For that that decision in ……………….. case does not form appropriate precedent
in this matter as it was given in a different factual context. For the same reason
……………….. case is not so binding and further the purpose therein was different
and the Constitution did not operate thereon.
(iv) For that the decision in ……………….. case loses much of its validity and
operation as precedent as there were competing reasons given by different judges

which almost neutralize each other leaving the field clear.
(v) For that in ………………..case reference was made to "due process of law" the
Draft Committee's Report, the Debates, etc. Such matters could not be referred to.
Personal liberty has always been understood to include freedom of speech and right of
association and peaceable assembly. Constitutions are interpreted in a manner in many
respects peculiar to themselves. The correct approach to the problem of
42
interpreting Articles 19 to 21 of the Constitution has been entirely overlooked. The

well-known rules of interpretation have been ignored in this behalf. Even in matters
of procedure the various fundamental principles which form now the basis of
legislation in this behalf for generations past are easily ascertainable and have been
declared by the Judge in India and in the Privy Council and are now well established.
To say that any enactment of Parliament forms the procedure established by law is
contrary to the Constitution and is not good law.
8. Your humble petitioner therefore begs to pray that Your Lordships may be pleased to
issue rule nisi to the respondents directing them to produce the petitioner before this
Hon'ble Court and to justify his detention in accordance with procedure established by
law and that after hearing the parties, Your Lordships may be pleased to issue a writ of
habeas corpus or other appropriate writ or direction to set the petitioner at liberty. For
which favour this humble petitioner shall ever pray.
Delhi…………..
(Sd.)
Advocate,
Dated …………..
Settled by Supreme Court.
Senior Advocate, Supreme Court.
Sample Writ of Mandamus
43
In the High Court of Judicature at …………………
In re Art. 226 of the Constitution of India
Civil Writ Petition No…….. of ……….
Name & Address :……………………….. Petitioner
……………………………………………
versus
(1) State of ………….
Respondents.
(2) District Magistrate of………
Petition for issue of writ of mandamus and other direction or order
The petitioner above named states as follows :
1. That he held arms licence for a revolver and a shotgun till the end of year …….
2. That on ……. respondent No. 2 passed an order cancelling the said licences, but
gave no reasons therefor.
3. That pursuant to the said order, the petitioner deposited the said arms.
4. That the cancellation of the said licences was, it appears, ordered under the
direction of the Chief Secretary of respondent No. 1.
5. Being aggrieved with the said cancellation of the licences, the petitioner approaches this
Hon'ble Court for issue of a writ of mandamus with such consequential directions
44
as the Hon'ble Court thinks fit, on the following, among other
Grounds
1. (i) That the order of respondent No. 2, dated………. mentioned above is illegal
and contrary to law inasmuch as -
(a) he has given no reasons as required under Sec. 18 of Arms Act,
(b) he has not exercised his own discretion, but has merely complied with the
direction of the Chief Secretary of respondent No. 1.
(ii) That the real order of cancellation having emanated from the Chief Secretary of
respondent No. 1, the petitioner has been deprived of the right of appeal as it would
have been infructuous.The dice had already been loaded against the petitioner.
2. That the petitioner has no other remedy which is efficacious and expeditious in
this behalf.
3. That the petitioner had made a demand for restoration of the licences and the
arms but the same was refused.
4. It is prayed that the order dated………. cancelling the licences for revolver and
shotgun bearing Nos………. and ……….. respectively be quashed and a writ of
mandamus be issued directing respondent No. 2 to forbear from giving effect to the
order against the petitioner. The said arms be directed to be restored to the petitioner.
Costs of the petition be also awarded him.
N. B - An affidavit in support of the petition is also filed herewith.
Dated ………………..
(Sd.)
Petitioner.
(Sd.)
Advocate, for the Petitioner.
45
46
Sample Writ of Certiorari
In the High Court of Judicature at……………..
Name and Address………………………………….
Petitioner
versus
President, Municipal Board, …….. District ……..State of ………..
Respondent.
Petition for a writ of certiorari under Art. 226 of the Constitution of
India to quash the order of the President, dated………….. refusing
to allow withdrawal of resignation
The petitioner abovenamed states as under :
1. That he was working as a Superintendent of he Municipal Board at ………… in

the district of …..
2. That certain charges of misappropriation and other irregularities alleged to be
committed by the petitioner were served on the petitioner on ….. by the respondent
and some investigation was made in this behalf but the said charges were dropped
47
against the petitioner on or about………
3. That the petitioner was made, under undue influence, to submit a letter of
resignation from service to take effect one month after the date of submission
thereafter. The petitioner asserts that he was not bound by the contents of the said
letters.
4. That the petitioner withdrew by letter, dated………… the offer of resignation (prior to
the date when the alleged resignation was to take effect) submitted on………. as
stated above, and requested that the said offer of resignation be not considered and
be deemed as withdrawn.
5. That the respondent rejected the prayer mentioned in para 4 above on …….. by this
order, dated ………., and directed the petitioner to hand over charge of his office
to………
6. That the petitioner move the …………….. [Appropriate Court] for a temporary
injunction against the respondent to restrain him from giving effect to the said letter
of resignation, in a suit filed for declaration that the said letter of resignation was not
a voluntary one but had been extracted out of the petitioner under undue influence
but the ……………..[Appropriate Court] discharged the rule issued for a temporary
injunction in the said suit, as prayed for.
7. That the petitioner also submitted a representation to the State Government

on……….. but the same has not yet been decided.
8. That being aggrieved by the order of the respondent, dated………… the petitioner
approaches this Hon'ble Court for issue of a writ of certiorari and such other
direction and order as it may deem just, on the following among other
48
Reasons
(i) That the suit filed by the petitioner, as stated in para 6 above, has become
infructuous, the relief by means of a suit is not an equally adequate and efficacious
one in the circumstances of this case.
(ii) That the letter of resignation above-mentioned was to take effect on ……… or
thereafter, it was not an unconditional resignation. The petitioner had a right to

intimate to the respondent that he no longer wished that this offer of resignation
which was to come into existence from ……… should be considered as effective.
Till…………….. there was no resignation at all.
(iii) That the respondent had no jurisdiction to reject the prayer contained in this letter,
dated…….. withdrawing from consideration the offer of resignation submitted as
alleged.
9. It is, therefore, prayed that the order issued by the respondent, dated ………..
mentioned above be quashed and such other direction or order as may be

consequential and just in this behalf be made or passed.
N.B. - An affidavit in support of the petition along with the copy of the order,
dated………. above-mentioned, and sought to be quashed, is also filed herewith.
(Sd.)
Petitioner
Dated ………….
(Sd.)
Counsel for the Petitioner.
49
Sample writ of prohibition
WRIT OF PROHIBITION IN THE HON’BLE HIGH COURT OF JUDICATURE
AT_________ (Original Civil Jurisdiction)
Writ Petition No_________ of _________20 _________
AA. son of _________resident of _________ Petitioner.
Versus
50
1. State of _________
2. BB, Inspector-General of Police _________
3. CC., Inspector of Police _________ Respondents.
Petition under Article 226 of the Constitution for the issue of a writ of prohibition.
To,
The Hon’ble the Chief Justice and his companion Judges of the Hon’ble High Court.
The above named Petitioner begs to submit as under :
1. That he was appointed a Sub-Inspector of Police in the State of _________on
_________
2. That he served the State in various capacities, to wit as _________. in _________at
_________and as _________in _________at_________
3. That while he was stationed at _________and serving as _________, he was served

with a charge-sheet dated _________a copy whereof is filed herewith.
4. That enquiry into the said charges was made by Respondent No. 3 from _________to
_________who submitted a report dated _________to Respondent No. 2 finding the

charges mentioned in the charge-sheet above-mentioned to be proved.
5. That according to Rule _________of _________the charges aforementioned could not

be enquired into except by an officer of the rank of Superintendent of Police of
_________Division or with the approval of Respondent No. 2 of another Division in

the State of _________
6. That on _________the Petitioner received a notice from Respondent No. 2 to show

cause why he should not be dismissed from service.
7. That the aforesaid enquiry was illegal and ultra vires. Respondent No. 2 had no
jurisdiction to take into consideration the said enquiry or pass any order on the basis
thereof. The so-called inquiry was held by a person not duly authorised to do so.
8. The holding of a departmental inquiry by a Superintendent of Police is a condition
51
precedent, a fact which must exist before Respondent No. 2 can assume jurisdiction
or authority for the purpose of passing the final order of dismissal under Rule
_________of _________ against the Petitioner.
It is therefore, most respectfully prayed that a writ direction or order in the nature of
prohibition be issued to the respondents prohibiting them from proceeding further
with the disciplinary proceedings on the basis of the enquiry report of Respondent
No. 3.
Dated
_________
_________
_________
(Petitioner)
(Advocate for the Petitioner.)
52
Sample writ of Quo-Warranto
53
In the High Court of Judicature at ………..
In re Art. 226 of the Constitution of India
Name & Address :……………………………… Petitioner
………………………………………………….
Versus
(1) Name & Address :……………………..
…………………………………………….
(2) ……..………………………., Chairman of the Municipal Board of ………
at………………. Respondents.
(3) State of…….., through Secretary, Local Self-Government…….
Petition for a writ of quo warranto and other direction or order
The petitioner above named states as under :
1. That the respondent No. 1 was nominated on …….by the respondent No. 2 under
Sec…… of ……… Municipalities Act on the occurring of a vacancy in the Municipal
Board of ……. in respect of a seat to which a member had to be nominated.
2. That the respondent No. 1 was a candidate at the previous (20………..) general
election of this Municipal Board and had failed in getting elected.
3. That under the proviso to Section …….of ……….Municipal Act, 20……… a person
who had stood as a candidate at the previous general election and had not been
elected, could not be nominated to the Board.
4. That the nomination of the respondent No. 1 was in contravention of the

provisions of law and his membership of the Board is, therefore, invalid.
54
5. That the petitioner is a resident within the Municipality of ………. and is a voter at
No. ……in Ward No. …….. of the said Municipality.
6. In the circumstances, it is prayed that a writ of quo warranto be issued declaring

that the nomination of respondent No. 1 by respondent No. 2 for a seat in Municipal
Board of …… is invalid and that the respondent No. 1 is not entitled to hold the office
of a member thereof and directing him not to exercise or use the rights, liberties and
privileges in respect of the notice of a member of the Municipal Board of ……..
N.B. - An affidavit in support of the petition is also filed herewith.
Dated…………
(Sd.)
Petitioner.
(Sd.)
Advocate for the Petitioner.
Landmark cases on writ petition
1. Jury decision overturned by High Court (KM Nanavati v State of Maharashtra)
– 1961
Hardly an open-and-shut case, the nature of the crime garnered media attention.
This case is notable for being the last case when a jury trial was held in India. KM
Nanavati, a naval officer, murdered his wife's lover, Prem Ahuja. The jury ruled in
favour of Nanavati and declared him "not guilty" which was eventually set aside by
the Bombay High Court.
2. Amendment masquerades as law (IC Golaknath v State of Punjab) – 1967
Parliament's prevented from taking away individual rights. In the highly famous case
55
of Golaknath V State of Punjab in 1967 the Supreme Court ruled that Parliament could
not curtail any of the Fundamental Rights of individuals mentioned in the
Constitution. Parliament's overarching ambitions nipped in the bud (Keshavananda
Bharti vs State of Kerala) 1973.
3. Elected representatives cannot be given the benefit of doubt
A highly notable case which introduced the concept of "basic structure" of the
constitution of India and declared that those points decided as basic structure
could not be amended by the Parliament. The case was triggered by the 42 nd
Amendment Act.
4. Beginning of the fall of Indira Gandhi (Indira Gandhi v Raj Narain) - 1975
The trigger that led to the imposition of emergency.
In this landmark case regarding election disputes, the primary issue was the validity
of clause 4 of the 39th Amendment Act. The Supreme Court held clause 4 as
unconstitutional and void on the ground that it was outright denial of the right to
equality enshrined in Article 14. The Supreme Court also added the following features
as “basic features” laid down in Keshavananda Bharti case – democracy, judicial
review, rule of law and jurisdiction of Supreme Court under Article 32.
5. A step backward for India (ADM Jabalpur v Shivakant Shukla Case) - 1976
Widely considered a violation of Fundamental Rights.
In this landmark judgment, the Supreme Court declared that the rights of citizens to
move the court for violation of Articles 14, 21 and 22 would remain suspended during
56
emergencies. Triumph of individual liberty (Maneka Gandhi vs UOI) 1978.
6. Overlapping zones of laws rectified thanks to a writ petition
The case caused a huge uproar over the definition of Freedom of Speech. The court
ruled that the procedure must be fair and the law must not violate other Fundamental
Rights.
7. Parliament limited by itself (Minerva Mills v Union of India) - 1980
In this landmark judgment, the Supreme Court of India in 1980 strengthened the
doctrine of the basic structure which was propounded earlier in the Keshavananda
Bharti Case. Two changes which were made earlier by the 42nd Amendment Act were
declared as null and void by the Supreme Court in this particular case.
8. Constitutional validity of individual rights upheld (Waman Rao v Union of India)

- 1981
SC ruled that Parliament had transgressed its power of constitutional amendment.
This case was a landmark decision in the constitutional jurisprudence of India. This
case has helped in determining a satisfactory method of addressing grievances
pertaining to the violation of fundamental rights by creating a fine line of
determination between the Acts prior to and after the Keshavananda Bharati case.
9. Maintenance lawsuit sets precedent (Mohd Ahmed Khan v Shah Bano Begum) -
1985
Shah Bano won the right to get alimony from her husband.
57
The petitioner challenged the Muslim personal law. The Supreme Court ruled in
favour of Shah Bano and granted her alimony. Most favoured it as a secular judgment
but it also invoked a strong reaction from the Muslim community, which felt that the
judgment was an encroachment on Muslim Sharia law and hence led to the formation
of the All India Muslim Personal Law Board in 1973.
10. MC Mehta v Union Of India – 1986
Mounting environment-related concerns.
A PIL filed by MC Mehta in 1986 enlarged the scope and ambit of Article 21 and
Article 32 to include the right to healthy and pollution-free environment.
11. Reservation in central government jobs (Indra Sawhney v UOI November) - 1992
Attempt to correct historic injustices constitutionally.
The constitutional bench of the Supreme Court held in this matter that caste could be
a factor for identifying backward classes.
12. Wrangle over Supreme Court judge appointments (Supreme Court Advocates-
on-Record - Association and another versus Union of India) - 1993
The National Judicial Appointments Commission Act and Constitutional amendment

Act passed in 2014 aimed at replacing the collegium system of appointing Supreme
Court judges. The act was struck down as unconstitutionalby the Supreme Court in
October 2015.
58
13. Power of President's Rule curtailed (SR Bommai v Union of India) - 1994
Persecution of state governments stalled.
This landmark case had major implications on Center-State relations. Post this case
the Supreme Court clearly detailed the limitations within which Article 356 has to
function.
14. Scam-tainted politicians – 1997
The Jain Hawala case exposed bigwigs.
The Hawala scandal was an Indian political scandal involving payments allegedly
received by politicians through four hawala brokers, the Jain brothers. In 1991, an arrest
linked to militants in Kashmir led to a raid on hawala brokers, revealing evidence of large-
scale payments to national politicians. The prosecution that followed was partly
prompted by a public interest litigation. Many were acquitted, partly because the hawala
records (including diaries) were judged in court to be inadequate as the main evidence.
The high court decreed that the CBI had not brought on record any material which could
be converted into legally admissible evidence.
15. Foundation for a female workforce (Vishaka v State of Rajasthan) - 1997
Definition of sexual harrassment and guidelines to deal with it laid down. In this case
Vishakha and other women groups filed a Public Interest Litigation (PIL) against State
of Rajasthan and Union of India to enforce fundamental rights for working women
under Articles 14, 19 and 21 of the Constitution. This resulted in the introduction of
Vishaka Guidelines. The judgment of August 1997 also provided basic definitions of
sexual harassment at the workplace and provided
59
guidelines to deal with it. Hence the importance of the case as a landmark judgment.
16. Afzal Guru's death sentence sparked protests - 2002
Awarded death sentence for role in 2001 Parliament attacks.
Afzal Guru was sentenced to death on February 2013 for his role in the December 2001
attacks on the Indian Parliament. The judgment faced widespread criticism on three
grounds – lack of proper defense, lack of primary evidence and judgment based on
collective conscience rather than rule of law.
17. Justice deferred in Best Bakery case – 2003
Miscarriage of justice as a large number of witnesses turn hostile.
The Best Bakery was burned down, killing 14 people on March 1, 2002 as part of the
2002 Gujarat violence. The Supreme court, in a rarest of rare case, ordered a re-trial
outside of Gujarat in which nine out of the seventeen accused were convicted by a
special court in Mumbai in 2006.
18. State of Tamil Nadu V Suhas Katti - November 2004
Short conviction time of seven months.
This was notable for being the first case involving conviction under the Information
Technology Act, 2000. A family friend of a divorced woman was accused of posting
her number online on messenger groups which led to her being harassed by multiple
lewd messages. The accused was later convicted and sentenced.
60
19. Rameshwar Prasad v Union Of India - 2005
Dissolution of Bihar Assembly unwarranted.
In this case, the petitioner challenged the constitutional validity of a notification which
ordered dissolution of the legislative Assembly of the state of Bihar. The dissolution
had been ordered on the ground that attempts were being made to cobble a majority
by illegal means and lay claim to form the government in the state which if continued
would lead to tampering with constitutional provisions. The Supreme Court held that
the aforementioned notification was
unconstitutional.
20. Victims of sexual assault or not? (Om Prakash v Dil Bahar) - 2006
Controversial ruling had many opponents.
The Supreme Court in the above case declared that a rape accused could be convicted
on the sole evidence of the victim in spite of medical evidence not proving that it was
rape.
21. Priyadarshini Mattoo case - October 2006
14-year-old fight for justice gets results.
In this matter the Supreme Court had commuted the death sentence awarded to prime
accused Santosh Singh (son of former IPS officer), to life imprisonment for the rape
and murder of the 23-year-old law student, Priyadarshini Mattoo.
22. Jessica Lal Murder Case - December 2006
61
Civil society makes big gains.
A model in New Delhi working as a bartender was shot dead and the prime accused
Manu Sharma, son of Congress MP Vinod Sharma who was initially acquitted in
February 2006 was later sentenced to life imprisonment in December 2006 by a fast
track hearing by the Delhi High Court. On 19 April 2010, the Supreme Court of India
approved the sentence.
23. Sanjay Dutt plays prisoner in real life – 2007
Conviction under TADA changed under milder Arms Act.
Well-known actor Sanjay Dutt was sentenced to five year imprisonment by the
Supreme Court for illegal weapons possession in a case linked to the 1993 serial blasts
in Mumbai. The Supreme Court also cited that the circumstances and nature of offence
were too serious for the 53-year-old actor to be released on probation.
24. Nithari serial murders - 2009
Koli was served with multiple death sentences.
A Special Sessions Court awarded death sentence in 2009 to Surinder Koli and
Moninder Singh Pandher for the murder of a 14-year-old girl. The murders believed
to have been committed through 2006 involved instances of cannibalism. Pandher was
later acquitted by the Allahabad High Court and was released on bail but Koli’s death
sentence was upheld by both the High Court as well as the Supreme Court.
25. Aarushi Talwar murder - 2008
62
Verdict delivered under unusual circumstances.
A case which received heavy media attention involved the double murder of 14- year-
old Aarushi Talwar and her 45-year-old domestic help in Noida. After five years a
Sessions court convicted both her parents Rajesh and Nupur Talwar and sentenced
them to life imprisonment.
26. Section 377 case (Naz Foundation v Govt of NCT of Delhi) – July 2009
Cause for rejoicing for homosexuals.
In 2009 the Supreme Court declared Section 377 of the Indian Penal Code, 1860 as
unconstitutional. The said section earlier criminalised sexual activities “against the
order of nature” which included homosexual acts. This judgment however, was
overturned by the Supreme in December, 2013.
27. Meagre closure for controversial Ayodhya (Ayodhya Ram Mandir Babri Masjid
Case) - September 2010
Ruled that the land was to be divided into three parts.
The high court of Allahabad had ruled that the disputed land in Ayodhya where the
Babri Masjid was situated before it was demolished in 1992 shall be divided into three
parts. Two-thirds of the land was to be awarded to the Hindu plaintiffs and one-third
to the Sunni muslim Waqf board.
28. Child sexual assault not to be taken lightly - 2011
63
Punishment not enough for child abusers.
The Supreme Court restored the conviction and sentence of six-year rigorous
imprisonment imposed on two British nationals who were acquitted by the Bombay
High Court in a paedophilia case. The Bench directed the accused to serve the
remaining period of sentence. In a landmark judgment the Supreme Court observed
“Children are the greatest gift to humanity. The sexual abuse of children is one of the
most heinous crimes”.
29. Vodafone's name cleared in tax battle (Vodafone-Hutchison tax case) - January
2012
Landmark decision on taxability of offshore transactions.
The Supreme Court ruled in favour of Vodafone in the two-billion-dollar tax case
citing that capital gains tax is not applicable to the telecom major. The apex court also
said that the Rs 2,500 crore which Vodafone had already paid should be returned with
interest.
30. Clean chit to Prime Minister Narendra Modi - 2012
Questions remains and victims of families yet to get closure.
In April 2012 the Supreme Court appointed Special investigation Team (SIT) gave
current Prime Minister Narendra Modi a clean chit in the post-Godhra Gulberg
massacre case citing that it found no evidence against him. Narendra Modi went on
to become the Prime Minister of India with a huge mandate.
64
31. Mohd Ajmal Amir Kasab v State of Maharashtra – 2012
One of the most high-profile executions in the country.
The Supreme Court observed that the acts on November 26, 2008, had shaken the
collective conscience of Indian citizens and had confirmed the death sentence
awarded to prime accused Ajmal Kasab by the trial court and affirmed by the Bombay
High Court, for waging war against India.
32. NOTA Judgment - 2013
The right to reject candidates formalised.
In 2013, the Supreme Court introduced negative voting as an option for the country’s
electorate. According to this judgment an individual would have the option of not
voting for any candidate (None-Of-The-Above) if they don’t find any of the
candidates worthy.
33. Patent troubles of Pharma company Novartis (Novartis v Union of India &
Others) - 2013
Case accused of dealing a death blow to innovation in medicine.
Novartis’ application which covered a beta crystalline form of imatinib, a medicine the
company brands as "Glivec", which is very effective against chronic myeloid leukaemia
(a common form of cancer) was denied patent protection by the Intellectual Property
Appellate Board. The Supreme Court in its ruling upheld the board’s
65
decision which eventually led to the medicine being made available to the general
public at a much lower cost.
34. Illegalising convicted MPs and MLAs (Lily Thomas v Union Of India) - July 2013
Effected much-needed cleansing of legislative bodies.
The Supreme Court of India, in this judgment, ruled that any member of Parliament
(MP), member of the legislative assembly (MLA) or member of a legislative council
(MLC) who was convicted of a crime and awarded a minimum of two-year
imprisonment, would lose membership of the House with immediate effect.
35. Uphaar fire tragedy (Sushil Ansal vs State Thr Cbi) - March 2014
Split judgment couldn't reach a decision on sentencing.
August 2015: Eighteen years after 59 people were killed in a fire in Delhi’s Uphaar
cinema, the Supreme Court held that the prime accused did not necessarily need to go
back to jail as they were fairly aged. The court further held that “ends of justice would
meet” if the accused paid Rs 30 crore each as fine.
36. Nirbhaya case shook the nation - March 2014
Judiciary spurred into action and laws were strengthened for sex offenders.
Four out of the five accused in the horrific gang-rape case of Nirbhaya were convicted and
given the death sentence. The case also resulted in the introduction of the Criminal Law
(Amendment) Act, 2013 which provides for the amendment of the definition of rape under
Indian Penal Code, 1860; Code of Criminal Procedures, 1973;
66
the Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences
Act, 2012.
37. Recognising the Third gender (National Legal Services Authority v Union of
India) - April 2014
Third gender acknowledged as citizens with rights.
In a landmark judgment the Supreme Court in April, 2014 recognised transgender

persons as a third gender and ordered the government to treat them as minorities and
extend reservations in jobs, education and other amenities.
38. Section 66A revised (Shreya Singhal v Union of India) – March 2015
Cracking down on "offensive" online content not easy.
Controversial section 66A of the Information Technology Act which allowed arrests
for objectionable content posted on the internet was struck down as unconstitutional
by the Supreme Court in March 2015.
39. Yakub Memon sentenced to death (Yakub Abdul Razak Memon V State of
Maharashtra and Anr) - July 2015
No reprieve for the accused in 1993 Mumbai serial blasts.
Yakub Abdul Razak Memon was convicted and sentenced to execution by hanging in
March 2015 for his involvement in the 1993 Bombay serial blasts. His conviction
sparked a nationwide debate on capital punishment in India.
67
40. Dance bars functional again - October 2015
After a gap of two decades, dance bars open.
The Supreme Court in July 2013 passed a judgment directing the state government to
reopen dance bars in Maharashtra which had earlier been banned under the
Maharashtra Police Act. The resultant ban by the Bombay High Court was stayed.
68
CONTEMPT OF COURT
Contempt is an act of deliberate disobedience or disregard for the laws, regulations,

or decorum of a public authority, such as a court or legislative body. In legal
terminology, contempt refers to any willful disobedience to, or disregard of, a court
order or any misconduct in the presence of a court; action that interferes with a judge's
ability to administer justice or that insults the dignity of the court.29
In India, under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt
of court as civil contempt or criminal contempt. Section 2(b) defines civil contempt
and section 2(c) defines criminal contempt. Thus the legislature has not defined
contempt although it has defined civil and criminal contempt. This is so for the reason
that contempt cannot be confined within four walls of a definition. What would offend
the court's dignity and what would lower the court's prestige, is a matter which can
be decided by the court itself and it is for the court to deal with each case of contempt
under the facts and circumstances of that case. It is generally felt that the existing law
relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory.
The jurisdiction to punish for contempt touches upon two important fundamental
rights of the citizens, namely, the right to personal liberty and the right to freedom of
expression. It was, therefore, considered advisable to have the entire law on the subject
scrutinized by a special committee.
In pursuance of this, a committee was set up in 1961 under the chairmanship of the
late H.N.Sanyal, the then additional solicitor general. The committee made a
comprehensive examination of the law and problems relating to contempt of court in
the light of the position obtaining in our own country and various foreign countries.
The recommendations, which the committee made, took note of the importance given to
freedom of speech in the Constitution and of the need for safeguarding the status and
dignity of courts and interests of administration of justice. The recommendations of the
committee have been generally accepted by the government after considering
29
Miller C.J., Contempt of Court, 2nd edition, Clarendon Press, Oxford, 1989, p. 34.
69
the view expressed on those recommendations by the state governments, union

territory administrations, the Supreme Court, and the High courts.
A case of contempt is C.K. Daphtary v. O.P. Gupta30 the respondent published and
circulated a booklet in public purporting to ascribe bias and dishonesty to Justice Shah
while acting in his judicial capacity. Mr, C.K. Daphtary, along with others, filed a
petition alleging that the booklet has scandalized the judges who participated in the
decision and brought into contempt the authority of the highest court of the land and
thus weakened the confidence of the people in it. The Supreme Court, in examining
the scope of the contempt of court, laid down that the test in each case is whether the
impugned publication is a mere defamatory attack on the judge or whether it will
interfere with the due course of justice or the proper administration of law by the
court.
However, in short contempt can be said to be an act or omission which interferes or

tends to interfere in the administration of justice. To constitute contempt it is not
necessary that there has been actual interference in the administration of justice. If the
act complained of tends to interfere or attempts to interfere in the administration of
justice, may be taken as contempt. The expression 'administration of justice' is to be
used in a very wide sense. It is not confined to the judicial function of the judge but
includes all functions of judges- administrative, adjudicatory and any other function
necessary for the administration of justice.
THE CONTEMPT OF COURTS ACT, 1971
In a very practical move and in an effort to sanctify the ideal of justice, The Contempt of
Courts Act, 197131, was enacted to identify and punish those very persons who, in any
way, put an obstacle in the path of the judiciary to deliver justice to the people. One of the
basic principles of a sound judiciary is that everyone is entitled to a free and fair trial
without any prejudice whatsoever. Therefore, any action, either direct or
30
(1971 1 SCC 626),
31
It came into force w.e.f. December 24, 1971 (70 of 1971).
70
indirect, which is detrimental to the judicial ideal of justice is sought to be punished

under the Contempt of Courts Act, 1971. For the concept of Contempt of Court, the
Contempt of Court Act, 1971 was passed which dealt with such a concept. Article 129
and 215 of the Constitution of India empowers the Supreme Court and High Court
respectively to punish people for their respective contempt. Section 10 of The
Contempt of Courts Act of 1971 defines the power of the High Court to punish
contempt of its subordinate courts. Power to punish for contempt of court under
Articles 129 and 215 is not subject to Article 19(1)(a).
KINDS OF CONTEMPT
1. Civil contempt
2. Criminal contempt
CIVIL CONTEMPT
Section 2(b) defines civil contempt as wilful disobedience to any judgment, decree,
direction, order, writ or other process of a court or wilful breach of an undertaking
given to a court. From the above definition, it can be gathered that following are two
ingredients of civil contempt which are required to be proved-
1. Disobedience of the order/decree etc. of court or breach of undertaking, and
2. The disobedience/breach must be wilful, deliberate and intentional.
1. DISOBEDIENCE OF THE ORDER/DECREE OF COURT OR BREACH OF

UNDERTAKING
Order of the court includes all kinds of orders- final, preliminary, ex-parte and
contempt order but there must be disobedience of the order and decree. In the case of
H. Puninder v. K.K.Sethi32the Supreme Court has held in absence of the stay order in
appeal or revision of higher court, the order appealed against should be complied
with, subject to any order passed at later stage, otherwise it is open for the contempt
court to proceed further on merit of the contempt case.
A different view has been taken by the SC in case of interim relief/stay order. In case
32
(1998) 8 SCC 640.
71
of State of Jammu and Kashmir v. Mohammad Yakub khan33. The SC has held that where
stay vacation application has been promptly filed by the respondent against whom
the stay order has been passed and the same is pending for disposal the court
shouldn't proceed in the contempt case unless and until the stay vacation application
has been decided.
So far as the breach of undertaking as contempt of court is concerned, the basis behind
this is that the contemner obtains a beneficial order for himself from the court, by
giving an undertaking and if he fails to honour the undertaking at a later stage, he
plays a serious fraud on the court and thereby interferes with the administration of
justice by bringing the court into disrespect.
An undertaking can be given before the court in the following ways:
i. By moving an application or filing an affidavit before the court clearly stating

the terms of the undertaking.
ii. By giving s clear and express oral undertaking which is incorporated by the
court in the order.
If any of the above two conditions are satisfied, a wilful breach of the undertaking
would amount to contempt of court.
2. THE DISOBEDIENCE OR BREACH MUST BE WILFUL, DELIBERATE AND

INTENTIONAL
Mere disobedience or breach of the court's order is not sufficient to constitute civil
contempt. The disobedience or breach must be wilful, deliberate and intentional. The
power of contempt can't be used unless the court is satisfied beyond doubt that the
contemner has wilfully, deliberately and intentionally violated the court's order.
No court including contempt court is entitled to take trivialities and technicalities into
account while finding fault with the conduct of the person against whom contempt
proceeding is taken.
If the order has been substantially complied with and a reasonable explanation has
33
(1992) 4 SCC 167.
72
been given for the delay in compliance of the order, the contempt will not lie because
the violation is not wilful and deliberate.
CRIMINAL CONTEMPT
Criminal contempt has been defined under section 2(c) of Court of Contempt Act. It
provides that criminal contempt means the publication (whether by words, spoken or
written, or by signs, or by visible representations or otherwise) of any matter or the
doing of any other act whatsoever, which:
i. scandalizes or tends to scandalize or lowers or tends to lower the authority of,

any court;
ii. prejudices, or interferes or tends to interfere with, the due course of any
judicial proceeding; or
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other matter.
From the above definition, it can be gathered that criminal contempt has following
four essentials.
1. PUBLICATION OF DOING AN ACT:
The word publication has been given a very wide meaning so far as contempt of court
is concerned. It includes words (spoken/written), signs and visible representation. It
also includes the publication of any material in the newspaper and magazines, the
broadcasting of any material on the radio and exhibition of anything in cinemas,
theaters and television.
If these materials contain anything which scandalizes or lowers or tends to scandalize

or lower the authority of any court, prejudices or interferes with the due course of any
judicial proceeding or interferes or tends to interfere with administration of justice, it
will amount to criminal contempt of the court.
2. SCANDALIZING OR LOWERING THE AUTHORITY OF THE COURT:
Scandalizing might manifest itself in various ways but in substance, it is an attack on

individual judges in particular or the court as a whole, with or without reference to a
particular case, by casting unwarranted and defamatory aspersions upon the
73
character or the ability of the judges. Such conduct is punished as criminal contempt
for trhe reason that it tends to create distrust in the minds of common people and
thereby shatters confidence of the people in the judiciary.
In the case of Arundhati Roy, the Supreme Court made it clear that criticism which
undermines the court dignity can't be said to be fair criticism and can't be permitted
under the garb of freedom of speech and expression as is guaranteed by Article 19
(1)(a) of Constitution of India. Thus prosecution of persons for scandalizing the court
is not prohibited by constitutional right of freedom of speech and expression under
Article 19 (1)(a).
In the case of Dr. D.C Saxena v. CJI, the SC made it clear that writing/drafting in
pleading or petition by which defamatory allegations have been levelled against a
judge in particular or court as a whole, would amount to criminal contempt.
In the case of U.P Residential Employee Cooperative Society v. New Okhla Industrial
Development Authority34, it was held by the SC that filing of false affidavit in the court
with a view to mislead the court will amount to criminal contempt.
3. PREJUDICE OR INTERFERENCE WITH THE DUE COURSE OF ANY

JUDICIAL PROCEEDING:
The publication which prejudices or interferes with the due course of any judicial
proceeding is also taken as criminal contempt of court. Media trial or trial by
newspaper is not considered proper because it effects the fairness of trial and is likely
to cause interference with the administration of justice.
The knowledge of pendency of the case and reasonable grounds to believe that the
case in pending is sufficient to make out criminal contempt and the intention and
motive of the publisher behind the content of publication is not relevant for the
purpose of criminal contempt. If it lowers the authority of the court and causes
interference with the due course of judicial proceeding a case for criminal contempt is
made out.
34
1990 AIR 1325, 1990 SCR (3) 64
74
In civil cases, the pendency starts with the filing of the plaint and in criminal cases,
with the filing of a charge sheet or the issuance of summons or warrants. The pendency
continues till the case is decided. In case an appeal/revision is filed, pendency
continues till the appeal or revision is decided. If appeal/revision is not filed, pendency
continues till the period of limitation for filing the same has not expired. Once it
expires, pendency is over.
4. INTERFERENCE/OBSTRUCTION WITH THE ADMINISTRATION OF

JUSTICE IN ANY OTHER MANNER:
The publication or doing of any act which interferes or obstructs or tend sto interfere
and obstruct in the administration of justice in any other manner, is taken as criminal
contempt of court. This clause is a residuary clause, covering those cases of criminal
contempt which are not expressly covered by section 2(c) of the Contempt of Court
Act.
The term 'administration of justice' is much wider than the term 'course of judicial
proceedings'. Every person in India is entitled to approach the court in order to secure
justice and for the redressal of his grievances and the court has to decide dispute
between the parties as per law and equity.
Any conduct which tends to prevent or actually prevents a party to approach the
court, amounts to criminal contempt of court, for eg. writing a threatening letter to
litigating party or his counsel preventing him from attending the court, writing a letter
to the judge or approaching him in order to influence his judicial conscience or
approaching a counsel for undue favour are all examples of interference with
administration of justice and are contempt of court.
An advocate is an officer of the court and undue interference with the advocate in the
discharge of his professional functions amounts to contempt of court. Casting
aspersions on counsel or approaching him for not defending a particular person
amounts to criminal contempt of court.
75
In case of J.R Parashar v. Prashant Bhushan35, the SC held that holding a dharna or
resorting to strike by itself may not amount to contempt of court but if in doing so the
presiding officer of the court, its staff, the police personnel and the litigating parties
are prevented from approaching the court, it will amount to interference in the
administration of justice and will be criminal contempt of the court.
PUNISHMENT UNDER THE CONTEMPT OF COURT ACT
Section 12 deals with the punishment for contempt of court. It provides as follows:
Section 12(1)- Save as otherwise expressly provided in this Act or in any other law, a
contempt of court may be punished with simple imprisonment for a term which may
extent to 6 months or a fine which may extend upto rupees 2000 or both.
Provided that, the accused (of contempt) may be discharged or the punishment
awarded may be remitted on apology being made to the court's satisfaction.
EXPLANATION- An apology shall not be rejected merely on the ground that it is
qualified or conditional if the accused makes it bonafidely.
Where a person is found guilty of civil contempt and the court is of the opinion that
imposing fine will not meet the ends of justice and it is necessary to impose a sentence
of imprisonment, the court may direct that he may be detained in civil prison instead
of sentencing him to simple imprisonment for such period not exceeding six months,
as it thinks fit.
Where, the person found guilty of contempt of court or in respect of the violation of
any undertaking given to the court, is a company, every such person who was in
charge of the company at the time when the contempt was committed shall be deemed
to be guilty of contempt and the punishment may be enforced with the leave of the
court by detention in civil prison of such person.
Provided that, nothing contained in this sub-section shall render any such person
liable to punishment, if he proves that the contempt was committed without his
knowledge or that he exercised all due diligence to prevent its commission.
35
(2001) 6 Supreme Court Cases 735)
76
DIFFERENCE BETWEEN CIVIL AND CRIMINAL CONTEMPT:
Following are the three differences between civil and criminal contempt:
1. Civil contempt involves wilful and deliberate disobedience of the order or

undertaking given to the court. Whereas, criminal contempt involves the
defiance and insult of the court directly. There is neither any order nor wilful
violation thereof in criminal contempt.
2. Civil contempt is a serious matter as the order obtained by one party against
the other is disobeyed. But, criminal contempt is more serious as it involves
scandalizing or insulting the court directly and thereby shaking the confidence,
not only of the litigating parties but the general public as a whole.
3. In civil contempt private parties have interest because order obtained by one
party against the other is not complied with and therefore, one party is
interested in getting the order complied with. Whereas, in criminal contempt,
private parties have little or no interest for the reason that criminal contempt is
directed against the court’s dignity.
PERIOD OF LIMITATION (SECTION 20):
Section 20 deals with period of limitation for initiating contempt proceeding. Section
20 provides that no court shall initiate contempt proceedings either on its own notions
or otherwise after the expiry of one year from the date on which contempt is alleged
to have been committed. The period of limitation is applicable both in civil as well as
criminal contempt. Contempt proceedings can be initiated either by filing an
application or by the court itself suo motto. In both the cases, contempt proceedings
must be initiated within one year from the date on which contempt is alleged to have
been committed.
In criminal contempt, contempt is alleged to have been committed the moment

scandalization of court or interference with the administration of justice takes place.
Consequently, the period of limitation immediately starts running. But, in case of civil
77
contempt the period of limitation does not start from the date of the order. It starts
running after expiry of period mentioned in the order after service of certified copy of
the order upon the other side. If no time limit is mentioned in the order, the order
should be complied within a reasonable period. The term “reasonable period” has
been interpreted to be a period of three months from the date of service of certified
copy.
DEFENCES IN CIVIL CONTEMPT:
Following defences can be taken by an alleged contemner in a civil contempt:
1. No knowledge of order: The general principle is that a person cannot be held
guilty of contempt in respect of an order of which he claims to be unaware. Law
casts a duty upon a successful party to serve the certified copy of the order on the
other side either personally or by registered speed post. Notwithstanding the fact
that the order has been passed in presence of both the parties or their
counsels.
So, it can be successfully pleaded in defence that the certified copy of the order was
not formally served on the alleged contemner.
2. Disobedience or Breach was not wilful: It can be pleaded that although
disobedience or breach of the order has taken place but it was due to accidental,
administrative or other reasons beyond the control of the party concerned. This
plea can be successful only when the order has been complied with and a
reasonable explanation has been given for non- compliance thereof.
The Court may assess the intention of the party from the act done in the same way as
a reasonable prudent man would assess in the given circumstances.
3. Order disobeyed is vague or ambiguous: If the order passed by court is vague or
ambiguous or it is not specific or complete, it would be a defence in the contempt
or alleged contemner can raise a plea in defence that the order whose contempt is
alleged cannot be complied with as the same is impossible. In case
78
of R.N.Ramaul v. State of Himanchal Pradesh36 the Supreme Court directed the

respondent corporation to restore the promotion of the petitioner in service
from a particular date.
This direction was complied with by the respondent corporation by treating him as
promoted from that particular date which was given in the order. But, the monetary
benefits for that period were not paid by the respondent corporation and as such the
contempt petition was filed. Respondent Corporation took a defence that monetary
benefits were not paid to the petitioner because there was no direction in the order for
payment of monetary benefit and they cannot be held liable for contempt.
In case of Bharat Coking Coal Ltd. v. State of Bihar37, the Supreme Court clarified the
legal position by holding that where the order is incomplete and ambiguous, the
parties should approach the original court and get the order clarified by getting the
ambiguity removed.
4. Order involves more than one reasonable interpretation: If the order whose
contempt is alleged involves more than one reasonable and rational
interpretation and the respondent adopts one of them and acts in accordance
with one such interpretation, he cannot be held liable for contempt of court.
However, this defence is available only when a bonafide question of
interpretation arises. The intention of bonafide interpretation can be gathered
from the fact that the order has been complied with by adopting one such
interpretation. In case of T.M.A. Pai Foundation v. State of Karnataka38 it was held
that this defence won’t be allowed if a doubt about the order has been
deliberately created when actually there is no doubt at all.
36
AIR 1991 SC 1171
37
1990 SCR (3) 744, 1990 SCC (4) 55
38
(2002) 8 SCC 481
79
5. Compliance of the order is impossible: In proceedings for civil contempt, it

would be a valid defence that the compliance of the order is impossible.
However, the cases of impossibility must be distinguished from the cases of
mere difficulty. In case of Amar Singh v. K.P.Geetakrishnan, the court granted

certain pensionary benefits to a large number of retired employees with effect
from a particular back date. The plea of impossibility was taken on the ground
that the implementation of the order would result in heavy financial burden on
the exchequer. However, the plea of impossibility was rejected by the court
with the observation that although its difficult to comply with the order but it’s
not impossible to comply and therefore, it should be complied with.
6. The order has been passed without jurisdiction: If the order whose contempt is
alleged, has been passed by a court which had no jurisdiction to pass it, the
disobedience or violation would not amount to contempt of court for the reason
that the order passed without jurisdiction is a void order and binds nobody. In the
case of Krishna Devi Malchand v. Bombay Environmental Action Group39, the Supreme
Court clarified the legal position and held that if the order is void, it cannot be
ignored by the party aggrieved by it. The litigating party cannot assume the role
of Appellate or Revisional authority in order to say that the order os not binding
upon them. Consequently, if any party feels that the order has been passed by a
court which had no jurisdiction to pass it, he should approach the same court for
seeking such declaration by moving an application for recall of the order. If the
application is rejected, the Appellate Court can be approached for such declaration.
In case of State of Jammu and Kashmir v. Mohd. Yaqub Khan40, the Supreme Court has
held that where stay petition application
39
(2011) 3. SCC 363
40
JT 1992 (5) SC 278
80
is pending, the Contempt Court should not proceed with the contempt case till
the stay vacation application is decided. So, in case of interim order having
been passed by a court which has no jurisdiction, a stay vacation application
can be promptly file, raising the plea of lack of jurisdiction.
In Dr. H. Puninder Singh v. K.K. Sethi41, the Supreme Court has held that if there is any
stay order passed by the Appellate Court, the contempt court cannot proceed.
However, if no interim order application is passed by the Appellate Court, the court
can proceed and the order of the original court should be complied with subject to any
order passed by the Appellate Court at the final stage.
DEFENCES AVAILABLE IN CRIMINAL CONTEMPT
Sections 3 to 7 of the Contempt of Courts Act deal with the defences available in
criminal contempt. These defences can be categorized in the following categories:
1) Innocent publication and distribution of matter – Section 3 deals with this defence.
If a criminal contempt is initiated against a person on the ground that he is responsible for
publication or for distribution of publication which prejudices or interferes with the
pending proceedings, the contemner may take the following steps:
a) he may plead under S. 3(1) that at the time of publication, he had no

reasonable ground for believing that the proceeding was pending.
b) he may plead under S.3(2) that at the time of publication, no such proceeding
was pending.
c) he may plead under S.3(3) that at the time of distribution of publication, he had
no reasonable ground for believing that the matter (published or distributed by
him) contained or was likely to contain any material which interfered or
obstructed the pending proceeding or administration of justice.
2) Fair and accurate report of judicial proceedings - S.4 of the Act provides that a
person should not be held guilty of Contempt of Court for publishing a fair and
41
(1998) 8 SCC 640
81
accurate report of any judicial proceedings or any stage thereof. Section 7 of the Act
provides Exception to the general principle that justice should be administered in
public. Sub sections (1) and (2) of S.7 provide that a person shall not be guilty of
Contempt of Court for publishing the text or for publishing fair and accurate summary
of the whole or any part of the order made by the court in camera (in Chamber) unless
the court has expressly prohibited the publication of the proceedings on the grounds
of:
a) Public Policy
b) Public Order
c) Security of the State
d) Information relating to a secret process, discovery or invention, or, in exercise of
the power vested in it.
3) Fair criticism of Judicial Act – Section 5 provides that a person shall not be guilty of
criminal contempt for publishing any fair comment on the merits of any case which has
been finally decided. A defence can be taken that the statement complained of (in respect
of publication of which criminal contempt has been initiated) must be in respect of a case
which has been finally decided and not in respect of pending proceedings. Moreover, the
statement should come from the mouth of a knowledgeable person in the field of law and
not from a litigating party which has lost the case. In short, fair criticism means that
criticism which while criticizing the act of a Judge does not impute any ulterior motive to
him. In case of Arundhati Roy, the Supreme Court has held that judicial criticism cannot
be invoked under the garb of Freedom of Speech and Expression under Article 19(1) (a)
of the Constitution of India. The Supreme Court further clarified that fair criticism of the
judiciary as a whole or the conduct of a Judge in particular may not amount to contempt
if it is made in good faith and in public interest. To ascertain the 'good faith' and 'public
interest' the Courts have to take into consideration all the surrounding circumstances
including the person's knowledge in the field of law, the intention behind the comment
and the purpose sought to be achieved. A common citizen cannot be permitted to
comment
82
upon the Courts in the name of criticism by seeking the help of Freedom of speech
and expression for the reason that if it is not checked, it would destroy the judicial
institution itself.
In the present case, Arundhati Roy was not found to have knowledge or study
regarding the working of the Supreme Court or judiciary of the country and so the
defence of fair comment in good faith and public interest taken by her was rejected
and she was punished for criminal contempt.
4) Bonafide Complain against the presiding officer of a sub-ordinate Court –Section
6 provides that a person shall not be guilty of contempt of court in respect of any
statement made by him by way of complaint in good faith concerning the presiding
officer of any sub-ordinate court to the High Court or to the Court to which he is sub-
ordinate. The protection of this section will be available only when it is proved that
the complaint was made in good faith.
In ascertaining the 'good faith' the intention and the purpose sought to be achieved by
complaint will be taken into consideration and it would be ensured that the same was
not made with ulterior motive.
5) No substantial interference with due course of justice - By the Contempt of Courts

(Amendment) Act, 2006, a new Section 13 has been substituted in place of existing
S.13. This new S. 13 provides that “notwithstanding anything contained in any law for
the time being in force, no Court should impose a sentence for Contempt of Court
unless it is satisfied that the Contempt is of such a nature that it substantially interferes
or tends to interfere with the due course of justice.”
6) Justification by Truth -The amended Section 13(2) provides that the Court may
permit justification by truth as a valid defence in any proceeding for criminal
contempt if it is satisfied that it is in public interest. Thus, truth is now a defence if it
is in the public interest and Bonafide.
7) The statement complained of is open to different interpretations -If the words

complained of are open to two different interpretations and one of them indicates
contempt while the other does not, the contemner cannot be punished for non-
83
compliance of one interpretation. But, in order to succeed in this defence, it is necessary
to prove that the order was complied with in respect of one interpretation. If the order is
not complied with at all, it cannot be proved that there was a reasonable doubt as to the
interpretation of the order. On the other hand, it will be presumed that a doubt is
deliberately sought to be created so as to avoid the compliance of the order.
8) Defamation of the Judge personally -If the publication or other act is merely a
defamatory attack on the judge and is not intended to interfere with the
administration of justice, it will not be taken as contempt of court.
The publication or other Act amounts to Contempt of Court only when it has nexus
with the functioning of a judge. The statement complained of may amount to
Contempt of Court only when it is made against a judge in his judicial capacity in the
exercise of his judicial functions. However, in such a situation a judge is not remediless
and he has the same remedies available which are available to a common man. A
defamatory attack on a judge may be Libel or Slander and he has a discretion to

proceed for Defamation in civil, criminal or simultaneous proceedings against the
person concerned but he cannot be punished summarily under criminal contempt of

court. The object of Contempt law is to protect the confidence of the people in the
administration of justice and its object is not to prevent attacks upon the personal
reputation of any individual judge. So, any personal attack upon the judge
unconnected with the office he holds, is dealt with under the ordinary rules of Libel
and Slander.
REMEDIES AGAINST THE ORDER OF PUNISHMENT:
Following remedies are available against the punishment order under Contempt of
Court Act:
1. Apology: The contemner may under apology to the court and the court may
remit the punishment awarded for contempt, if the court is satisfied that the
apology has been made with real sense of repentance.
In case of A.K.Pandey, the Supreme Court made it clear that the court is not bound to
accept the apology unless there is a feeling of repentance in the contemner. In case of
84
M.C.Mehta v. Union of India42, the Supreme Court further clarified that apology should
not be used as a weapon of defence in case of contempt. The apology must be tendered
at the earliest opportunity. An apology will not be treated as an apology if tendered
at a time when court is going to impose a punishment. However, along with apology
the defence taken by contemner can be pleaded. Explanations to section 12(1) has
enabled the contemner to put forward his defence while pleading apology as this
explanation has provided that apology should not be rejected on the ground that its
qualified or conditional if the accused makes it bonafide. Apology will help the
contemner if his explanation has been rejected.
In the case of Haridas v. Smt. Usharani 43 the apology tendered by contemner was not
found to be genuine as the contemner repeatedly tried to assert that whatever he said
was correct and he would prove it. And at the same time he tenderd apology. His
apology was not found to be genuine and he was punished for contempt.
2. Appeal: Contempt of court Act, 1971 has provided for the statutory right of appeal
against the orders of High Court passed in the exercise of its jurisdiction to punish
for the contempt of the court. Prior to this act there was no statutory right of appeal
but even at that point of time the person punished under the Contempt of Court
Act was not remediless. The High Court itself could grant the certificate under
Article 134 of the Indian Constitution and where the High Court refused to grant
such certificate, the Supreme Court could entertain the
appeal by granting special leave under Article 136 of the Constitution of India. So,
the right of appeal prior to 1971 was dependent on the discretion of the court and it was
not by the way of right. Section 19(1) of the act provides right of only one appeal. It
provides that an appeal shall lie as of right from any order or decision of the High Court
in the exercise of its jurisdiction to punish for contempt. If the order of
42
[1987] 4 S.C.C. 463
43
Appeal (civil) 7948 of 2004
85
punishment has been passed by single judge of High Court, there is right of appeal to
the division bench of not less than two judges of High Court. If the order of
punishment is passed by a division bench then appeal will lie in Supreme Court.
However, in case of punishment order passed by single judge, the right of appeal gets
exhausted once the appeal is filed before the division bench and there is no further right
of appeal under the Contempt of Court Act. However, the remedy under Article 136 of
Constitution will still be available and the Supreme Court may grant leave to appeal under
Article 136. Section 19(4) provides for the period of limitation for preferring an appeal. It
provides that an appeal under Article 19(1) shall be filed within thirty days to the division
bench of High Court and in case the order of punishment has been passed by division
bench of High Court then within sixty days to the Supreme Court from the date of the
order appealed against. Section 19(2) deals with the power of Appellate Court during the
pendency of appeal. It provides that during the pendency of the appeal the Appellate
Court may pass the following orders:
1. The execution of the punishment order shall remain suspended.
2. If appellant is under confinement imprisonment he may be released on bail.
3. The appeal may be heard notwithstanding that the appellant has not
perched his contempt.
Section 19(3) provided that an appeal under section 19 will lie at the instance of the
person aggrieved. A proceeding for contempt is between the court and the contemner.
A person who moves the application for initiating contempt proceeding does not
come within the category of person aggrieved and therefore he has no locus to file an
appeal, if his contention for initiating the contempt proceeding is rejected. If a person
is found guilty for contempt of court, an appeal will lie under section 19 that the
instance of person who is found guilty and is consequently punished. But, if a person
is not found guilty of contempt proceedings and proceedings for contempt is either
dismissed or dropped against him then the informant or person who has moved the
application for initiating the contempt will have no right of appeal under section 19 of
the Act.
86
In case of Varda Kant Mishra v. State of Orissa, it was clarified by Supreme Court that
the order or the decision of High Court refusing to initiate contempt proceedings or
dropping the contempt proceedings or acquitting the contemner (even if initiated the
contempt proceedings) cannot be challenged by way of appeal under Section 19. It is
only the order of punishment which can be challenged by way of appeal under section
19 of the act.
PROCEDURE TO BE ADOPTED IN CONTEMPT PROCEEDINGS:
Section 14 of the contempt of court act deals with the procedure of contempt in the
face of the court of record whereas section 15 deals with the procedure in cases other
than in the face of court of record. This is also known as constructive contempt. Article
129 provides that the Supreme Court and article 215 provides that every High Court
shall be a court of record and shall have all the powers of such court including to
punish for its contempt. These court of records have inherent power to punish for
contempt and therefore these court of records can deal with such matter summarily
and can adopt their own procedure.
The only case to be observed by the courts of record while exercising the contempt
jurisdiction is that the procedure adopted must be fair and reasonable in which full
opportunity should be given to the alleged contemner to defend himself. No person
should be punished for the contempt unless a specific charge against him is distinctly
stated and he is given a reasonable opportunity to answer it and to defend himself
against such charge.
The contempt proceedings are neither civil proceedings nor criminal. They are sui
generis. Consequently contempt proceedings will neither be governed by Civil
Procedure Code nor by Code of Criminal Procedure. Even the provisions of Indian
Evidence Act will not be attracted in the contempt proceedings. The contempt of court
including the criminal contempt is not an offence within the meaning of Code of
Criminal Procedure and therefore a procedure prescribed by Code of Criminal
Procedure for investigation, enquiry and trial of the offence is not required to be
followed in contempt proceedings.
87
The contempt of court and the power of the Supreme Court and High Courts to initiate
proceedings for contempt and pass punishment orders, is a special jurisdiction which is
inherent in all the courts of record. Section 5 of the Code of Criminal Procedure expressly
excludes special jurisdiction from the scope of Code of Criminal Procedure.
PROCEDURE TO BE ADOPTED IN CASES OF CONTEMPT IN THE FACE OF
THE COURT:
Section 14 deals with contempt in the face of the Supreme Court and High Courts and
it provides that whenever it appears to the Supreme Court and the High Courts that
a person appears to have committed contempt in its presence or hearing the court may
cause such person to be detained in custody.
And shall at any time before the rising of the court on the same day or as early as
possible, thereafter:
1. Cause him to be informed in writing of the contempt with which he is charged.
2. Afford him an opportunity to make his defence in respect of the charge.
3. After taking such evidence as may be offered by such person and after hearing
him proceed either forthwith or after adjournment to determine the matter of
the charge.
4. Make such order for the punishment or discharge of such person as may be
necessary.
Where the person charged with contempt under this section applies whether orally or
in writing to have the charge against him, tried by some judge other than the judge or
judges in whose presence or hearing the contempt is alleged to have been committed
and the court is of the opinion that it is necessary in the interest of justice that the
application should be allowed, it shall cause the matter to be placed before the Chief
Justice with the statement of facts of the case for transfer before such judge as the Chief
Justice may think fit and proper under the circumstances of the case.
That it is necessary in the interest of justice that the application should be allowed, it shall
cause the matter to be placed before the Chief Justice with the statement of facts of the
case for transfer before such judge as the Chief Justice may think fit and proper
88
under the circumstances of the case.
However, it shall not be necessary for the judge or Judges in whose presence or
hearing the contempt is alleged to have been committed to appear as a witness before
the Court where the matter has been referred. The statement of facts of the case written
by the judge or Judges while referring the matter to the Chief Justice shall be treated
as evidence in the case.
In Sukhdev Singh v. Teja Singh, the Supreme Court observed that if the judge has been
personally attacked, he should not, as far as possible, hear the contempt matter and
should refer the matter to Chief Justice for nomination of some other Court, or, on the
application of the person aggrieved. This is necessary keeping in view the principle of
law that no one should be a judge in his own cause, and, secondly justice should not
only be done, but it must appear to have been done.
In those cases where the Contemnor has been detained in custody, during the
pendency of the Contempt case, he may be released on Bail or on furnishing bond
with or without sureties that he shall continue to attend the Court proceedings.
PROCEDURE OF CRIMINAL CONTEMPT COMMITTED OUTSIDE THE
COURT
Criminal Contempt committed outside the Court, in other words, other than in the
face of the Court, is known as Constitutive Contempt. Section 15(1) deals with
cognizance of criminal contempt by courts of record whereas Section 15(2) deals with
criminal contempt of sub-ordinate courts.
Section 15(1) provides that cognizance for criminal contempt can be taken by the
Supreme Court and High Courts in the following manner:
i. On its own motion
ii. On the motion of the Advocate General
iii. On the motion of any other person, with the consent, in writing, of the Advocate
General.
iv. On the motion of such law officer in relation to the High Court for the Union
Territory of Delhi as the central government may notify.
89
Section 15(2) provides that in case of criminal contempt of a sub-ordinate court, the
concerned High Court may take action in the following manner:
i. On the reference made to it by the sub-ordinate court.
ii. On the motion made by the Advocate General.
iii. On the motion made by such law officer in relation to a Union Territory as the
Central Government may specify.
Section 15(3) provides that every motion or reference shall specify the contempt of
which the person charged is alleged to be guilty.
The expression “advocate general” in this section means the following :
i. In relation to the Supreme Court, the Attorney General or the solicitor general.
ii. In relation to a High Court, the Advocate General of the states for which High
Court has been established.
iii. In relation to the court of judicial commissioner, such law officer as the central
government may specify.
BAR ON PRIVATE PERSONS
Section 15 bars the private individuals to file.....Without consent of the Advocate
General. The purpose of barring a private person from filing contempt procedure
without the consent of Attorney General is to save the court's time from being wasted
in frivolous complaints.
In Hari Kishan v. Narutham Das Shashtri, the SC held that the purpose of barring private
person from filing criminal contempt is to prevent the courts from being flooded with
frivolous motions in order to serve personal interest or grudge.
Once the matter is scrutinized by advocate general only such motions which have
substance will receive the court's attention.
In case of Biman Basu v. A.G Thakurta44, the SC held that any petition of criminal
contempt filed by any private person without the consent of the Advocate General
will not be maintainable and will be dismissed on this ground alone.
44
2005 (2) CHN 330.
90
PROCEDURE TO BE ADOPTED IN CASES OF CONTEMPT COMMITTED
OUTSIDE THE COURT
In cases of contempt committed outside the court, the contemner isn't present in the
court and therefore a notice is to be served on him section 17 deals with this procedure.
It provides that notice of every proceeding under section 15 shall be served personally
on the person charged unless the court for reasons to be recorded, directs otherwise.
The notice shall be accompanied:-
1. In case of proceedings commenced on a motion, by the copy of the motion along

with affidavit and material on which such motion is founded.
2. In case of proceedings on a reference by a subordinate court, by a copy of the

reference.
If the court is of the opinion that the person charged under section 15 is likely to
abscond or is likely to avoid the service of notice, the court may order the attachment
of the property of such person. However, the court may release the property from
attachment if the person appears and satisfies the court that he did not abscond or
avoid the court’s notice.
Any person charged with contempt under section 15 may file an affidavit in support
of his defence and the court may decide the charge of contempt on the basis of his
affidavit or after taking such evidence as may be necessary.
91
CONCLUSION
Anything that curtails or impairs the freedom of limits of the judicial proceedings.
Any conduct that tends to bring the authority and administration of Law into
disrespect or disregard or to interfere with or prejudice parties or their witnesses
during litigation. Consisting of words spoken or written which obstruct or tend to
obstruct the administration of justice. Publishing words which tend to bring the
administration of Justice into contempt, to prejudice the fair trial of any cause or
matter which is the subject of Civil or Criminal proceeding or in any way to obstruct
the cause of Justice.
An apology shall not be rejected merely on the ground that it is qualified or

conditional if the accused makes it bonafidely.
Section 12 deals with the punishment for contempt of court. It provides as follows:
Section 12(1)- Save as otherwise expressly provided in this Act or in any other law, a
contempt of court may be punished with simple imprisonment for a term which may
extent to 6 months or a fine which may extend upto rupees 2000 or both.
Provided that, the accused (of contempt) may be discharged or the punishment
awarded may be remitted on apology being made to the court's satisfaction.
However, in short contempt can be said to be an act or omission which interferes or

tends to interfere in the administration of justice. To constitute contempt it is not
necessary that there has been actual interference in the administration of justice. If
the act complained of, tends to interfere or attempts to interfere in the administration
of justice, may be taken as contempt. The expression 'administration of justice' is to
be used in a very wide sense. It is not confined to the judicial function of the judge
but includes all functions of judges- administrative, adjudicatory and any other
function necessary for the administration of justice.
92
93

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PROFESSIONAL ETHICS AND LAW

duties, especially in the circumstances where there may be a conflict of duties.

It is important that legal practitioners conduct themselves with integrity,

play a vital role in the administration of justice.

II. EVOLUTION OF PUBLIC INTEREST LITIGATION

The concept of Public Interest Litigation owes much to the American

others.1 It is interesting to note that the concept of public interest litigation

legal injury is caused to a person or to a determinate class of persons by reason

of violation of any constitutional or legal right or any burden is imposed in

contravention of any constitutional or legal provision or without authority of

such person or determinate class of personal is by reason of poverty,

helplessness or disability or socially or economically disadvantaged position,

determinate class of persons, in this court under Article 32 seeking judicial

it." The broad contours of PIL in India may be summarised thus:

a. It would comprehend any legal wrong or injury or illegal burden caused

b. The subject may be either a person or a determinate class of persons who

c. Any member of the public can maintain an application for appropriate

f. The court could be moved by a member of the public even by addressing

a letter which the court could convert into a writ petition.

jurisprudence to ensure justice within the reach of the poor masses-

unrecognised, weak, helpless and indigent - who constitute, as Justice

a new doctrine of accountability of the State for constitutional and legal

"Its rationale is contained in Article 39A of the Constitution. This Article

legislation or schemes or in any other way to ensure that opportunity for

largely eroded during the emergency period (1975-77) by the excessive

To make the judiciary, however, not to be a silent spectator with regard to

public interest jurisprudence and to be a legitimate partner in the process of

interest of indeterminate class of persons can be represented by public

standi providing thereby an opportunity to a large mass ·of people to be

III. PUBLIC INTEREST LITIGATION AND CIVIL RIGHTS MOVEMENT

of India's democratic norms stood as particularly amoral due to the increasing

weakness in the professional efficiency of the State apparatus -the bureaucracy,

emergence of various civil and democratic rights organisation provided the

institutional base for this movement.

indignities in contemporary India constitutes the concern of the civil and

democratic rights movement".3 The constitutional remedies against the

violation of fundamental rights of citizens, as sharply manifested during the

national emergency of 1975-77 found to be inadequate. The emergence of new

political leaders, new regional parties, sub-nationalist assertions, the evolution

for Democratic Rights (PUDR, Delhi), Committee for the Protection of

Democratic Rights (Bombay), Andhra Pradesh Civil Liberties Committees

(Hyderabad) or Association for the Protection of Democratic Rights (Punjab)"

led to more passionate and pro-people approach to defend the democratic

rights amidst the continuing problems of poverty, illiteracy, injustice and

exploitation. With the erosion of consensual model of governance, new

thoughts were streamlined to give new directions of social change. The

agencies of state could no more be understood as branches of one system of

impact in the concern for citizens rights within the

mainstream of political and intellectual discourse in the country. This

discourse also encompassed the judiciary. The emergence of new activist

judges who were sensitive to the grievances of the oppressed and

unprivileged, along with new civil rights groups followed as consequence.

The most common grievance of the unprivileged was to get justice at

cheaper price on the judicial front, "various committees such as Bhagwati

Committee of Gujrat on legal Aid (1971 ), Krishna lyer Committee on

Procedural Justice ( 1973), a High level Committee consisting of Justices

(1975), Committee on Juridicare Government of India (1976) were

Court itself indulged in judicial populism during the National Emergency

(1975-77). legal-Aid Camps were organised; even there was Padyatras by

Justices; Lok Adalats (People's Court) were introduced to realize access to

Upendra Baxi "the judicial populism was partly an aspect of post-

emergency catharsis. Partly, it was an attempt to refurbish the image of the

court tarnished by emergency and also attempt to seek news, historical