“IET was asked to name any particular article in this Constitution as the most important — an article with i this Constitution would:be could not refer to any othe; except this One (Article a2 very soul of the Constitutig; very heart of it - ss u tage se Le - aO The Constituent Assembly took up Draft Article 25 for debate on 9 December 1948. and was adopted with some amendments on the s O The Assembly was unanimous about the importance of the Article. ve oa referred to the provision in terms that included ‘the crowning section" sn = ‘very soul... and the very heart of the Constitution’. CA member wanted to remove the mention of specifies iris. He felt that this would constrain judges-asthiey would nét, new writs in the future. } Another member was unhappy with clau8e 4 that allowed for the suspensign! of the Draft Article during an emergency which he termed/ag a “dangerous situation’. /{ \ fal / C However, It was clarified that the specific writs mentioned in\the provision | were in existence in Great Britain for a very long time, they have been,tried/ and tested, and most lawyers, judges and jurists were familiar with them. It | was further stated that it was near to impossible.to improve upon the existin| writs and therefore there really was no possibility of new writs emerging. On the question of suspension of the Draft/Article, it was argued that iscwas, reasonable to suspend or limit fundamental rights during i. ne $ bi very life of the State was at stake > Ses Mi32. Remedies for enforcement of righi by this part.— (1) The right to move the Supreme ere appropriate proceedings for the enforcement of the tights U conferred by this part_is guaranteed. (2) | The Supreme Court shall Rave power to issu directions _or orders or writs,.including:writ§ in’the*nature of habeas corpus, mandamus, prohibition, que 0 u varranto and 7, certiorari, whichever may be appropriate, for the enforcement ' of any of the rights conferred by this part. fi 1 \ (3) Without prejudice to the powers conferred onthe , d Supreme Court by clauses (1) and (2), Parliamen may by law, other court to exerci Z its'jUrisdiction all or any of the powers, exe ythe | Supreme Court under clause (2). . j | (4) The right guaranteed by this Article shal not be. | suspended except as otherwise provided for by; this Constitution. SZ 31/24)2023 Prof Subba Writ Jurisdiction of Supreme Court compared with that of the High Court.— Court under Art. 32 is rthe protection of Q The High Court's jurisdiction under* only for the protection of fundamental right: other purposes. ft : Q The other purposes are those in.connection control of administrative authorities in the d common law and statutory duties. ==———=~S 1 When the High Court exercises its Writ Jurisdicti Art. 226, in appropriate cases the Supreme:Court may | exercise its appellate jurisdiction. The Supre Court thus, exércises control over administrative authori of writs only in its appellate jurisdiction. “available nob 11/24/2023 Prof 1:V-Subba Rag”OThe two jurisdictions, under Art.226 ang 32, concurrent so far as fundamental rights are aia QA petitioner for a writ can apply to the Supreme oan directly. QHe need not first apply to the High Cou Thappar V. State of Madras, AIRA950°S ane Sastri, J., observed : “7he Supreme Court been /\ constituted the protector and « guarantor Of, fuindamental | /I\ rights. It cannot, consistently with the responsibility so / | laid upon it, refuse to entertain applications. seeking [| protection against infringements of such right: 13” ; | However, there is deviant view expressed:by he SC in aye cases Kanubhai Brahmbhatt v. State of Gujarat, AIR’ 1987) SC 1159 ; RN. Kumarv. Municipal Corporat of Delhi, 2 (1987) 4 ‘sec 609 14/24/2023 Okenubhai Brahinbhattv. State of Gujarat, AIR 1987 SC 1159 Thakkar, J., compared the Supreme Court to a National Hospital and the High Court to Regional Hospitals. In view of the congestion in the National Hospital it is better to direct the patients (writ Petitioners) to approach the Re ional. Hospital first where they can get “more ised ent attention”. f GIn BN. Kumarv. Municipal Corporation of Delhi, (1987) 4 SCG 609 E.S. Venkataramaiah, J., has given 10 reasons why the High Court should be approached first. It is said that the remedy in the High Court is less expensive and more convenient. If the relief sought is granted by the. High Court, it may not be necessary to approach the Supreme Court. The | High Court Judges have necessary skill and the High Court | Lawyers have wide experience. Finally, “Even if no case is filed in this Court hereafter, with the present — as strength of judges, it may'také moré) than 5 year dispose of all pending casesQ It may be noted that this view isan act ong spair over pending cases and docket explosi guarantee cannot be Sprite Wie mannentttiona Q In Randhir Singh v. Union of India, AIR 1982 was observed : “The glory of our Constitutig aS et enables a person to directly approach the highest co " i 'n the land for redress”. 9 a (Under Art. 32 cl. (3) Parliament may by law ém i} \ 10 other Court to issue writs for protecting func ae an y rights. No such law has been’ passed so far,” \ / Under old Sec. 491 of the Criminal Procediif Code, 1898, this / the writ of Habeas Corpus could be issued. But section does not find a place in the Criminal;PFocedure i Code of 1973. Old Secs. 45 and 46 of the Specific Relief | Act, 1877, provided for the writ of mandamus. Thi sections were omitted in Specific,Relief Act, 1963 Ee ie 9 og | 11/24/2023 The only Courts which can issue the writs are the High Courts and the Supreme Court. Q By the Administrative Tribunals Act, 1985, writ Jurisdiction has been conferred on the Administrative Tribunals set up under that Act. These tribunals;deal: with service matters of Government ‘Sérvan In relation to these matters the writ jurisdiction of the has been excluded by the Act® C Exhaustion of other Remedies: Q If an adequate alternative remedy is availabl not ordinarily be entertained. The alternative remedies should be exhausted before applying for the ae Q There are several exceptions to this ru | a writ will | | Sea ee werici = aiasas Rashid Ahmedv. Municipal Board, Kairana, AIR 1959 SC 163, the petitioner was carrying on wholesale business in Vegetables and Fruits in a municipal area. The Municipality passed certain by-laws pursuant to which the monopoly of wholesale purchase and sale of vegetables, was’ wentore while others were forbidden to capry"On Suc trade. The ; petitioner was prosecuted for infringing the order and so the /\ petition was filed for directions requiring the respondent not/ | to prohibit the petitioner from car | rying on his trade and to / withdraw the prosecution. He did not pursue theremedy of | an appeal to the Local Government which was the remedy given by the United provinces Mun icipalities Act, 191 6. Tt was held that the existence of the alternative remedy’ ler violated the titioner’s | was immaterial as the ord fundamental right of freedom to carry 071 ade. Q 14/24/2023 Prof FV. Subba, Rao. +i In this case the Supreme Court laid down the following principles :— (1) The availability of a writ,in he Supreme Court as a remedy under Art. 32, for yeach of a fundamental right So is itself a fundamental right. the jurisdictionunder™ Art. 32, 15 nol CISCrELIONATY. pe ar: 9 Art. 226, is available for enforcing fundamental rights in the High Court. These two are not discretionary. But Art. 226, is available also for issuing writs for enforcement Of rights other than fundamental rights. The Juri sdiction is / discretionary. Z (2)It follows from the foregoing that where fundamental rights are involved, the existence of an alternative remedy is immaterial and the writ remedy can be invoked without first exhausting the other remedie S | | | | Prof. Subba Rao(3)Even in other cases the writ remedy may be granted notwithstanding the availability of an adequate alternative remedy. (a)When the Statute authorising the j impugné& vires, (b)When the act complained of 5 colour of which it is done, (c)When the act complained of j is one without isdiction , and not merely one done i irregul; eee gularly in the exerc e of (4)The rule that a writ will not b i e issued wh alternative remedy is not a,rule of law, It isn Bok We guide | the discretion of the Court, ultra vires the Act under / 11/24/2023 Applicability of Doctrine of Res Judicata to writ petitions. Q Res judicata means ‘things decided’. The doctrine of res judicata is to the effect that once a matter is finally disposed of on ade already been disposed of by a final decision. ei i\ Q If an aggrieved person files a petition’ under Art. 226 ‘b fore the High / Court for enforcement of a fundamental right and failsta similar / petition under Art. 32 before the Supreme Court for th ame relief would be barred by applying doctrine of res judicata « yl Q Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 The earlier petition should have been dismissed on merits. If it * Nithdrawn or if it was dismissed in /imine (i.e. on a preliminary poin of res judicata cannot be invoked in the later peti qualifications the principle of res judicata is apa writ petitions, 11/24/2023, if a Habeas corpus petition under Article 226, is Pelee by the High Court, the Supreme Court can entertain another petition for the same purpose under Art. 32 (Ghulam Sarwar v. Union of India, AIR 1967 SC 1335 ) Lallubhai Jagibhai Patel y. Union of. India, AIR:L9815SC:728' ~ though a petition for Habeas Corpus'is dismissed on one é ground, a second petition for Habeas Corpus lies ifa fi different ground is urged therein. It is immaterial that this | ground could have been urged in the first petition also. | OThe doctrine of constructive res judicata is inapplicable to | writ proceedings. According 'to this doctrine where the first} petition (or suit) is dismissed on one ground Prot Rv Stl Rad OThe writ jurisdiction of t the writ jurisdiction of S based upon the Provisiot jurisdiction cannot b OClause (3) provides tha he High Court under Art. 226, and Upreme Court under Art. 32, are ns of the Constitution. So this e taken awa jurisdiction all or any of Supreme Court under clause | \ | i \ on as Gopalan’s case the court held that Art.32 being a | Undamental right it cannot be diluted by any ledislati \ Thus Section 14 on ee | : of the Preventive Detention Act'which did | Not give any scope for the roche ony coms | detenue to a | Was struck down, approach) any court |In Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425. Sangram Singh sought a writ under Art. 226, fo quashing an order of an Election Tribunal. | refusi = aside certain_ex parte proceedings which ‘were: eing taken against hi him. Sec. 105 of the Representation of People Act, / 1951, provides : “Every order of the Tribunal made under the Act shall be final and conclusive”. In spit 0 Section, Bose, J., held, “The jurisdiction of, the High | Court under Art. 226, with that of the Supteme | Court above them remains to its fullest ¢ extent despite Sec. 105”. The Supreme Court ac quashed the order of the Tribunal. y24)2023, Laches: If there is undue delay the applicant is said to be guilty of Laches. The law of limitation is inapplicable to writ petitions. But the courts insist that the applicant for a writ should approach the court without undue delay. Hidayatullah, C.J., observed : “Where there is appearance. avoidable delay and this delay affect jerits oF the i Claim, this court will consider the’ pal invoke the extraordinary. jurisdiction’. (Moti Munshi, Commissioner of Sales Tax, Bombay, 1970 SCJ 859) \ In Bheemarajuv. Government, of A.P., AIR 19811 SC 513, the appointment of a Government: Pleader.was.made on\6-8-78.and | \ the order was challenged on 6-8-79. The Andhra radesh High \ Court'Held that since the matter raised related to a! public office and to'the violation of legal procedure in makinggtl less | appointment, “we do not think that delay should deter us in granting the discretionary relied and rendering justice”. T The plea, of laches was rejected and the Court considered te case ) the merits. 11/24/2023Challenge to the judgment and ratio decidendi of the Supreme Court of an earlier decision.— The Supreme Court held in Sanjay Singhv. U.P. Public Service Commission (2007) 3 SCC 720 that: “It is true that judgment of this Supreme Court cannot be challenged in a petition, under: Article 32. It can, however, be reviewed:unde! orin J exceptional circumstances reconsidered in exel inherent power on a curative petition.” The court explained the difference between the words | “judgment” “ratio decidendi” and decision or order, The i Court held that every judgment contains three parts: (i) the | facts and the point at issue, (ii) the reason for.the,decision; | and (iii) the final order containing the decision. | i area’, fy aa a | “The reasons for decision or the ratio decidendiis not the final order containing the decision. Though, the ratio decidendi may point to @ particular result, the decision may be different and not a natural consequence of ratio decidendi of the judgment. “This may happen eithet’on ne] of any subsequent event or thé‘need to mould the relief to do complete justice‘in the matter; itis the /|\ ratio decidendi of a judgment and not the final order | \! in the judgment which forms a judgment’: The word) | | judgment or decision is loosely used to cover all\\ It is the final order which cannot be questioned under Art, 32, The \ ratio decidendi can be questioned, particularly, in'a case | where violation of a Fundamental right of a'citizén is alleged) in a petition under Art. 32 i | pqs ot Satis RapWrit absolute.— The Supreme Court held : “Uf the court allows a writ petition and TEASONS: mad follow later, the first order allowingth@ writ | Petition and issuing the writ absolute is the operative order If reasons /)\ thereof are supplied later, as a matter of | convenience, the later order containing reasons cannot go beyond the four ; | corners of the rule absolute already issued’. Defpi Administration v. Gurdip Singh Uban, (2000) 7, se ic 296 :/ | 31/24/2023 Rule NISI: In the older practice, an order obtained ex parte to show cause why it should not be set aside . The rule will be made absolute i.e. the relief granted will be affirmed unless ( nisi) sufficient cause is ii bo deetetea, Y aside. If such cause is shown , the.rulewill “discharged In general such orders are pasted i in the cases ‘of hebeas \ corpus ia rh i\ Who can apply ( Locus Stara) and Against whom it | 4 can be issued : Q Generally against state Q Court can make appropriate orders against p Wate invasion of fundamental rights. Reliefs that can be granted: Writs ,Orders, Other appropriate remedies — the court has wide di - Compensatory jurisdiction. - PIL a i +/24/2023