IN THE SUPREME COURT OF INDIA
(CIVIL REVIEW JURISDICTION)

(Under Art. 137 of the Constitution of India)

REVIEW PETITION No of 2008

in

Writ Petition (Civil) No 334 (PIL) of 2005
[Apropos the Hon’ble Court’s Order dated Nov. 28, 2008]

In the matter of:

SHIVA KANT JHA

A-320 SFS, Sarita Vihar
New Delhi-110 044 …. Petitioner

Vs.

1. UNION OF INDIA

Through The Secretary (Revenue)
North Block, New Delhi

2. Central Board of Direct Taxes

Through its Chairman
North Block, New Delhi
…. Respondents

REVIEW PETITION

[UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA]

To

The Hon’ble Chief Justice of India and
And His companion Justices of the
Hon’ble Supreme Court of India
This humble Petitioner through this Review Petition (PIL):

MOST RESPECTFULLY SHEWETH:

1. That per judgment/order dated Nov. 28, 2007, this Hon’ble Court (Coram: coram Hon’ble Chief Justice, Hon’ble Mr. Justice R.V. Raveendran, and Hon’ble Mr. Justice J.M. Panchal) was pleased to dispose of the Writ Petition © 334 of 2005 by dismissing it for reasons set forth in its Judgment.

2. That this humble Petitioner is aggrieved with the aforementioned order of the Hon’ble Court as it is, in his honest and considered view, in manifest breach of the provisions of Article 145(1) © read with Rule Order XXXV framed in exercise of, and within the parameters of the said Article of the Constitution of India.

3. That the provisions under Article 145(1) ©, and the Rules framed to give that effect are mandatory, rendering an act in breach thereof ipso jure non est. It was held in Harish Uppal v. UoI AIR 2003 SC 739 that “Such a rule would be valid and binding.”

4. That this Review Petition is structured into the following Segments:

I. Context p. 2

II. On the Legality of this Order of dismissal: ART 145(1). p. 7

III. Substantial questions of Constitutional law were involved p. 9

(a) The Const. does not foreclose art 32 Remedy because of Review or Curative p. 9

( b) The submissions apropos the issues of the constitutional law p.10

(c ) The province of Art 32: p.14

(d) Other constitutional issues

(i): Rule of natural justice breached, and an unreasonable approach adopted p. 18

(ii): Does our Constitution conceive things as these? D.B. ignores the C.B. p. 21

(iii): Rules of natural justice breached: At. 14 of the Const. not protected p.23

(e) What the Hon’ble Court did on the Writ Petition: Issues not faced p. 25

(f) Some great questions pertaining to the interpretation of our Constitution arose. 26

IV. Grievance against the Hon’ble Court’s order of Nov. 28, 2007 p. 28

V. The finality of a Judicial Order ought to yield to Fundamental Rights p. 31

VI. Prayer for Hearing to be held OSTIIS APERTIS ( in the Open Court) p. 40

VII. Grounds p. 40

VIII. Prayers p. 47

[I]

(a)THE CONTEXT

4. That the Writ Petition (c) NO.334 of 2005 had been directed against the decision of the Division Bench of this Hon’ble Court [Coram: Justice Ruma Pal and B. N. Srikrishna] in Azadi Bachao Andolan [(2003) 263 ITR 706] reversing the Hon’ble Delhi High Court’s decision (Coram: Justice S.B. Sinha, Chief Justice; and Justice A.K. Sikri] in Shiva Kant Jha [(2002) 256 ITR 536].

5. That as the Curative Petition had been dismissed on the sole ground that the case did not fall within the parameters laid down in Rupa Ashok Hurra vs. Ashok Hurra & Anr. (2002 (4) S.C.C.388). This humble Petitioner felt that the said order of the Division Bench of the Hon’ble 2 Judges went against the Petitioner’s ( representing in this PIL the citizenry of this great Republic) Fundamental Rights guaranteed by the Constitution of India. This Petitioner sought remedy under Article 32 of the Constitution of India against the said impugned Order. As Rupa had a set of obiter dicta to the effect that remedy under Article 32 of the Constitution of India was not available against the decision of the Supreme Court (or, to be exact, against the decision of the Superior Courts) as it was not coming within the concept of ‘State’ within the meaning of the said term as used in Art. 12 of the Constitution. So it became essential for the Petitioner to submit in his Writ Petition that Rupa was not correctly decided on that point, and required a re-consideration. Alternatively, the Petitioner argued that Rupa went wrong in the narrowing of the frontiers of the doctrine of ex debito justitiae by going counter to the established juristic principles at work in the province of the judicial discretion to do substantial justice.

6. That the issue which came up on Nov. 27, 2007, was limited to the count, and made specific to the context emerging from this Hon’ble Court’s order dated 25/08/2006 [coram: Hon'ble the Chief Justice Y.K. Sabharwal; Hon'ble Mr. Justice C.K. Thakker; Hon'ble Mr. Justice R.V. Raveendran]: to quote from the order

“This leaves Segment No. I which seeks to challenge the judgment in Civil Appeal Nos.8163-8164 of 2003, the order dated 6th November, 2003 passed on the review petition and the order dated 14th May, 2004 passed on the curative petition. In view of the law laid down by the Constitution Bench of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Anr. (2002 (4) S.C.C.388, the petition under Article 32 of the Constitution of India is not maintainable. According to the petitioner, the decision in Rupa Ashok Hurra (supra) requires re-consideration.

We have requested Mr. Gopal Subramanian, learned Additional Solicitor General, to assist this Court on the point in issue from a prima facie perspective at this stage. Learned Additional Solicitor General, present in Court, has kindly consented to assist the Court as Amicus Curiae. We also request Mr. Soli J. Sorabjee, learned senior advocate, to assist the Court on this issue as Amicus Curiae. The relevant papers shall be supplied by Mr. Shiva Kant Jha, petitioner, to Mr. Gopal Subramanian and Mr. Soli J. Sorabjee within two weeks.”

6. This Petitioner’s position in the Writ Petition on the threshold issue was thus summed-up in

the Writ Petition (at pp. 132-191):

“75. That this Petitioner has striven to show that the judicial

views in Rupa’s case

(i) that the superior court is not comprehended within the concept of the “State” under Art. 12 of the Constitution of India; and

(ii) that the judicial practice and jurisprudence excludes the Superior Courts from the ambit and reach of its corrective power under Art. 32 of the Constitution; are erroneous, the first because it missed to appreciate the role of the “State” within the framework of modern constitution and public international law; and the second, because it missed to take into account the protean malleability and flexibility in view of the pragmatics of the judicial process. It is worth recalling F W Maitland wrote to Dicey: that “the only direct utility of legal history lies in the lesson that each generation has an enormous power of shaping its own law”.

76. That if this Hon’ble Court in Rupa’s Case would have explored the wide frontiers of its inherent powers and the profundity of the doctrine of Ex debito justitiae, it could have provided remedy for which certiorari is conventionally prayed for. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service[1] classified under three heads the grounds on which administrative action is subject to control by judicial review: ‘illegality”, ‘irrationality”, and “procedural impropriety”. Essentially these grounds are one ground, ultra vires.[2] But such serious blemishes in a judicial act of the Superior Judiciary also deserves to be set right, a fortiorari, as such lapses (if remain uncorrected on this or that ground) would shake people’s confidence in the probity of justice delivery system. This is the precise reason which might have led Lord Bridge L. In Goldsmith v. Sperrings Ltd[3] to state an important principle in the context of the Superior Court (here the Court of Appeal). Lord Bridge’s view has already been referred but because of its seminal importance in this context, it deserves to be repeated: explaining how the judge’s “judicial research” was in breach of the rules of audi alteram partem it was observed:

“In a court of inferior jurisdiction this would be ground for certiorari; and I do not think that this Court should adopt in its own procedure any lower standards than those it prescribes for others.”

77 .That, when all is said, without making fetish of it, this Petitioner prays for Justice. This Hon’ble Court has vast powers to forge right remedy exercising the creativity of the common law jurisdiction which it shares in wide amplitude. Dr T.B. Smith in his Tagore Law Lectures Property Problems in Sale aptly observed:

‘For me, as for Lord Stair, Father of Scots Law writing in the

17^th Century, law is ‘reason versant about the affairs of

Men’”[4]

If legalese is marshaled to uphold the fraud of Treaty Shopping, as has happened in this impugned judgment, not only the high words in the several great decisions of this Hon’ble Court would become wasted words, but will let loose a vampire on national resources. The global gladiators: are fast creating a world of political intrigues, corruption, marked by an evident imbecility to control the mighty forces of the corporate imperium driven by insatiable corporate greed. The way our Government, represented by the most distinguished law officers, presented its case, brings to mind what Prof, John Kenneth Galbraith writes in his A Short History of Economics The Past as the Present (at p. 236):

‘Here another great constant in economic life: as between grave ultimate disaster and conserving reforms that might avoid it, the former is frequently much preferred.

78. That this Writ Petition is moved with the hope that this Hon’ble Court would grant an effective judicial remedy in this case in which for the first time most momentous issues, involved in the economic architecture of this globalized world, have come up for judicial consideration. Our democracy is at cross-roads, and common citizens keep their fingers crossed. We cannot allow the mystique of a mask to wreck all values which our open society cherishes, and is committed to promote for the welfare of all. It is really a grand and great spectacle to see that that this Republic happens to have its justice process between the words of Gandhari (that Truth alone triumphs) and the presence of Mahatma Gandhi (who said: “Recall the face of the poorest and weakest man whom you have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it?”). This Hope is the sole driver to this Petition. At the beginning of the fascist era, Walter Benjamin had written:

‘Nur um der Haffnungslosen willen ist uns die Hoffnung gegeben.

[It is for the sake of those without hope that hope is given to us.][5]

79.That, in the end, this Petitioner submits that Rupa’s Case was decided per incuriam when it held that he Superior Courts are not within he concept of the ‘State’ as used in Art. 12 of the Constitution. It also went wrong in its view of the ambit and reach of its inherent jurisdiction to grant remedy Ex debito justitiae. This Petitioner believes that his Curative was rejected in the chamber as the Hon’ble Bench went ahead examining the Curative Petition strictly in accordance with the narrowly drawn up scope of the doctrine of Ex debito justitiae

8. That the criticism of Rupa over the Writ Petition [pp. 35-136; P.B. 89-191] had two broad segments:

(a) that it is manifestly wrong in holding that no Remedy under Art. 32 of the Constitution can be availed of to subject a decision of a Superior Court to Judicial Review; and

(b) that it has unreasonably narrowed the ambit and reach of the doctrine of ex debito justitiae leaving no scope to prevent even gross miscarriage of Justice in many situations.

The exclusion of one and the narrowing of the other have put us, in effect, in a strange double jeopardy not conceived under the polity erected under our Constitution.

7. This humble Petitioner in his Writ Petition prayed that this Hon’ble Court may grant the Petitioner the remedy prayed for by:

(i) considering the observations in Rupa uncalled as they were not needed to answer the question as reframed by the Constitution Bench for consideration (P.B. p. 61) ; and by

(ii) treating them mere casual obiter dicta made on CONCESSION by all the counsels appearing in the matter. [ Vide for principles: Writ Petition 73-84; Paper Book pp. 128-139; also Krishena v. UoI AIR 1990 SC 1782, CIT v. SEW AIR 1993 SC 43,Municipal Corporation v. Gurnam AIR 1989 SC 38 (paras 10-11) ].

Besides, this Petitioner had submitted that, in case this Hon’ble Court, at the end of the day, rejects this Petitioner’s plea that Art 32 remedy is available even against the decision of a Superior Court, if there is a clear case of the breach of a Fundamental Right, or apparent non-protection thereof, then this Hon’ble Court may declare the expanse of its inherent power to provide full remedy against the violations of the Rights protected under Art. 32 of the Constitution. This Petitioner in his written Brief had stated:

“ In effect, if this Hon’ble Court is not inclined to grant the remedy sought for by this Petitioner, it would be invited to redraw the frontiers of the doctrine of ex debito justitiae widely as is done in the U.K. in Cases like R v. Shivpuri[6]. Our citizenry cannot be worse of despite Art. 32 of the Constitution which declares Art 32 itself a Fundamental Right which under no circumstances can be pushed to the margin….. If Fundamental Rights are rights in legal sense, and Art 32 remedy cannot be availed against the decision of the Superior Courts, then how are the Rights under Articles 14, 19, 21…. to be given effect, if a Bench of this Hon’ble Court itself transgresses the Lakshmana Rekha?”….. Prof Wade’s following observation[7] has a pertinent point:

“Rights of appeal are always statutory. Judicial Review, on the other hand, is the exercise of the court’s inherent power to determine whether action is lawful or not and to award suitable relief. For this no statutory authority is necessary: the court is simply performing its ordinary functions in order to uphold the rule of law.”

It is unfair to exclude the constitutional remedy on one hand, and to unreasonably narrow down the doctrine of ex debito justitiae.”

II

ON THE LEGALITY OF THIS ORDER OF DISMISSAL: ART 145(1).

8. That Art.145 grants the rule-making power to the Supreme Court, and Cl. ( c) requires the Supreme Court to frame “rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III”. Art 145(2) requires rules to be framed fixing “the minimum number of Judges who are to sit for any purpose”. Art 145(3) of the Constitution prescribes that for “deciding any case involving a substantial question of law as to the interpretation of this Constitution” the number of the Hon’ble Judges on the Bench “shall be five”. The effect Art. 145(3) has thus been stated by Dr D.D. Basu:

. “This clause insists that all constitutional questions should be heard and decided by a Bench of not less than five Judges. Hence, whenever a constitutional question is raised before a smaller Bench, it is bound to refer it to the ‘Constitution Bench’ unless the question has already been decided by a Bench of five Judges, in which case the question ceases to be ‘substantial’”

H M Seervai, Constitutional Law of India, p. 1883 mentions that the Proviso to Art. 145(3) shows that even a Bench of 4 Judges would have to refer the matter to a Bench consisting of a minimum number of 5 Judges in the situation described in the Proviso.

9.That the obligation cast under Art 145(3) is imperative in effect ( ‘shall be five’). It was held in Harish Uppal v. UoI AIR 2003 SC 739 that “Such a rule would be valid and binding.” It is an established legal proposition that if the Constitution prescribes a particular mode of constitutional adjudication, then the adjudication must be done in that way alone. The pre-condition is an embargo imposed on the Supreme Court [a situation analogous to the situation in Re Racal Communications (1980) 2 All ER 634 at 638 where the House of Lords held that the Court of Appeal had no jurisdiction on certain causes in view of s. 31(1) of the Supreme Court of Judicature (Consolidation) Act 1925.[8]]

10.That the Supreme Court Rules, 1966 was framed in exercise of the powers conferred by Article 145 of the Constitution. The ORDER XXXV of the said Rules runs as under:

“1. (1) Every petition under article 32 of the Constitution shall be in writing and shall be heard by a Division Court of not less than five Judges provided that a petition which does not raise a substantial question of law as to the interpretation of the Constitution may be heard and decided by a Division Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly.

(2) All interlocutory and miscellaneous applications connected with a petition under article 32 of the Constitution, may be heard and decided by a Division Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly, notwithstanding that in the petition a substantial question of law as to the interpretation of the Constitution is raised.”

The effect of the aforesaid Order is:

(a) that if a Writ Petition involves questions pertaining to the interpretation of the Constition, the Writ Petition must be heard [shall be.. echoing Art 145(3) of the Constitution ] by a Bench of not less than five Judges;

(b) that if a Writ Petition ‘does not raise a substantial question of law as to the interpretation of the Constitution’ it ‘may be heard and decided by a Division Bench of the Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly’;

( c) that all ‘ interlocutory and miscellaneous applications’ connected with a petition under article 32 of the Constitution, may be heard and decided by a Division Court of less than five Judges,……’; and

(d) that all that can be decided in matters mentioned at (c ) supra are ‘ interlocutory and miscellaneous applications’ , leaving the actual Writ Petition intact before the Court to be disposed of per the law and the Constitution.

11. That the Writ Petition which has been dismissed by the Order, against which he Review Petition is hereby moved, did raise ‘substantial questions of law as to the interpretation of the Constitution’[ vide Section III infra]; and this Hon’ble Court was not required to decide any ‘interlocutory and miscellaneous applications’ ‘connected with the petition’.

III

SUBSTANTIAL QUESTIONS OF CONSTITUTIONAL LAW AS TO THE INTERPRETATION OF THE CONSTITUTION WERE INVOLVED

(a) The Constitution does not foreclose Art 32 Remedy because of Review or Curative

12. That this Writ Petition, the Petitioner had approached this Hon’ble Court for a remedy after his Review and his Curative Petitions had been decided. This Petitioner in his Writ Petition, and also in his written Brief, had submitted that our Constitution does not prohibit the seeking of remedy under Article 32 of he Constitution after having availed of the remedies consequential and sequential to this Hon’ble Court’s appellate decision under Article 136 of the Constitution of India. It was submitted that Rupa was evidently per incuriam in holding that a final judgment/order passed by this Court couldn’t be assailed in an application under Article 32 by an aggrieved person as this remedial Jurisdiction could not be invoked after exhausting the remedy of review under Article 137. This Petitioner had submitted that this view is not warranted by our Constitution for reasons, inter alia, the following:

“ ……. the remedy under Art. 32 can be solicited, as the proceedings under Art 32 and those under Art 136 are materially different: viz.

(i) Art. 32 of confers a guaranteed fundamental remedy but Art 136 or Art. 226 confers no such guaranteed rights. This state of affairs makes Art 32 a dominant and specific provision whereas Art 136 or Art. 226 are, in the context of the enforcement of the fundamental rights, clearly general and additional.

(ii) Dr Ambedkar described Art 32 of the Constitution as “the very soul and the very heart of the Constitution”. Art 136, a discretionary remedy, cannot be elevated to become the very soul of the Constitution.

(iii) The power of judicial review is derived from Art 32 of the Constitution. Our superior courts have considered Judicial Review a basic feature of the Constitution. As such, even Parliament cannot curtail the reach of Article even by exercising its constituent power, not to say of the courts.

(iv) Dr Basu has aptly observed: “It is nowhere laid down in the Constitution that Art 32 will be excluded by Art. 136.” No exclusion can be created; as such an exercise would be manifestly without jurisdiction.

(v) The Judiciary wields no constituent power to amend the Constitution as contemplated under Art. 368 of the Constitution. It is not permissible for the Supreme Court to bring about in any form a legal position which has the effect of amending Art 32: turning it into something of this sort:

“ Art. 32 Remedies for enforcement of fundamental rights conferred by this Part. ----The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed; however, the Supreme Court will not enforce that right if the petitioner under Art. 32(1) if he has availed of remedy provided under Art 136 or that granted under the judicially devised Curative Procedure.”

And this Petitioner quoted the view of Dr D.D. Basu, an acknowledged authority on the Constitutional Law: Dr D.D. Basu says[9]:

“The assumption that even when the fundamental right of an individual is affected by a judicial decision, the only remedy of the aggrieve party is by way of appeal ignores the patent fact that Art 32 is an overriding and additional constitutional remedy which takes no account of appeal or other remedies, even though appeal to the Supreme Court has been separately provided for. The right to move the Supreme Court for the enforcement of a fundamental right is guaranteed by Art. 32……..But an appeal under Art. 136 is by special leave which is in the discretion of the Court and which cannot, therefore, be a substitute of the ‘guaranteed’

(b) THE SUBMISSIONS APROPOS THE ISSUES OF THE CONSTITITUTIONAL LAW

13. That, in effect, this humble Petitioner had submitted in his Writ Petition, pleadings, and arguments, the following broad points:

(i) In a given case where certain Fundamental Rights are violated or non-protected, a remedy under Article 32 must be granted as a matter of course; but

(ii) whether in a given case there is a breach or non-protection of Fundamental Rights is to be judicially determined by this Court, and would, of course, be final and binding; and

(iii) it would be a constitutional solecism if the Hon’ble Court abdicates this Constitutional role under an erroneous or self-serving notion that it is not coming within the province of the term ‘State’ in Art 12 of the Constitution, or under some anachronistic ideas of the British Jurisprudence dehors the provisions of our Constitution.

14. That, on a close and critical reading of the provisions of our Constitution and the Constitutional Jurisprudence which we share, this Petitioner drew up his Fourteen Points, which he had placed that before the Hon’ble Court for appreciation and judicial Declaration, but to the misfortune of this Petitioner, the Hon’ble Court totally ignored them: they were:

I. “Under the Constitution of India all courts are courts of limited jurisdiction, though our Superior courts are not inferior courts.

II. Remedy under Article 32 of the Constitution of India is a matter of course whenever on account of State action a Fundamental Right granted per provisions of the Part III of the Constitution are breached, or ignored.

III. The determination, whether in a given case there is a remissness of that sort, is, in the end, for the Supreme Court to decide after a judicial consideration of grievance; and its decision thereon shall be binding and final.

IV. The judicial determination to ascertain if someone’s Fundamental Right has not been protected or has been violated shall always on judicially evolved objective criteria focusing on the effect of such a remissness without ever insisting that it needed to be accompanied by an element of intentional and purposeful discrimination.

V. The judicial organ of the State is as much amenable to judicial scrutiny and supervision through the remedy prescribed as any other organ of the State or its instrumentalities.

VI. As all the organs of our polity are the creatures under our Constitution with granted powers they all are subject to Judicial Review whether they act in the domestic sphere or at international plane.

VII. The Supreme Court of India is the final court of construction of the law and the Constitution: hence its analysis of factors, appreciation of facts, and evaluation of all variables in a judicial-making is beyond any question.

VIII. But if an aggrieved person feels that a determination made in matters inter partes or in a PIL is grossly and manifestly in disregard of the Fundamental Rights, he may bring his case before the Supreme Court to be considered by a larger Bench in open court.

IX. The reach and the ambit of the Art. 14 of the Constitution is to be treated, as our Supreme Court has already held, so wide that the maintenance of the Rule of Law, and the operation of the Rules of Natural Justice are given sure effect through an effective implementation of the doctrine of ultra vires.

X. Mistakes of law made by judges of the High Court or the Supreme Court acting in their judicial capacity as such can be corrected only by means of appeal to an appellate court, except when a Case is evidences a clear breach/non-protection of Fundamental Rights entitling the aggrieved to the Remedy under Art. 32 of the Constitution.

XI. Decisions on merits can be questioned only on preferring appeals, if an appellate remedy is provided, but the legality of a decision can be examined through a collateral review by granting remedy under Art. 32 of the Constitution of India.

XII. It is possible, of course in the rarest of rare cases, even for the Superior Courts to lose its rightfully acquired jurisdiction over a matter if in course of a proceeding it violates (or through omission or commission has that effect) someone’s Fundamental Rights through an evident breach, or clear and transparent non-protection.

XIII. The Supreme Court, under our Constitution, is sovereign in respect of determination of what law is on a given point, but would grant a remedy under Article 32 of our Constitution when a petitioner makes out a good case that his fundamental rights, directly or indirectly, have not received protection (or stand, in effect, breached) in an impugned decision.

XIV. The Hon’ble Court may set up a process of the pre-decisional scrutiny of such Petitions filed seeking Art. 32 remedy against a decision which is otherwise final, and may impose heavy cost if such Petitions are filed without good grounds.”

15. That this Petitioner had made it clear, virtually as a burden of his song, that he sought Art. 32 remedy against the impugned Judgment of the Hon’ble Division Bench; and his Prayer (a) in the Writ Petition questioned the correctness of Rupa on the following counts:

(i) that the string of dicta observing that remedy under Art. 32 could not be availed of after one lost on Review and Curative were per incuriam; and

(ii) that the parameters governing the ambit and the reach of the Hon’ble Court’s inherent power to do justice (ex debito justitiae) were drawn unreasonably narrow; so the rejection of the Curative under those constricted parameters was unreasonable, and against the Art. 142 of our Constitution.

Hence, this humble Petitioner prayed before the Hon’ble Court:

(a) to declare as a point of our Constitutional law that if there is a breach or non-protection by any organ of the State, which includes Judiciary also, remedy under Art 32 is to be granted as a matter of course; and

(b) to examine the Petitioner’s contentions to appreciate if the Case presented deserves the grant of such a Remedy on its merits.

15. That it had been submitted in the Writ Petition, Written Notes, and in the arguments that, in short, this Petitioner’s Writ Petition turns on the following propositions of greatest constitutional importance;

(i) that the Judiciary is an organ of the ‘State’ within the meaning of this term under Article 12, which is within Part III of the Constitution, and hence, under the mandate and prohibition articulated in Art 13 of the Constitution;

(ii) that, as such, the Remedy under Art 32 of the Constitution is ex propio vigore available to protect a citizen’s Fundamental Right which he believes to have been breached or non-protected by a judicial order of the Superior Judiciary;

(iii) that the impugned Judgment/order stood in breach of Articles 14, 19, and 21 of the Constitution of India, to say in other words, these Rights were not protected by this Hon’ble Court;

(iv) that in the common law courts of the U.K, where there is no written Constitution with entrenched Rights, full remedy is granted against all legal and constitutional solecism by widening the frontiers of the inherent power of the court, pithily expressed in the maxim of ex debto justitiae (vide R v. Shivpuri[10]; Isaacs v Robertson [1984] 3 All ER 140); and such Justice-driven proposition as what Lord Bridge L.J. in Goldsmith v. Sperrings Ltd[11] expressed thus:

“Hence there is a breach of the rule of audi alteram partem which applies alike to issues of law as to issues of fact. In a court of inferior jurisdiction this would be ground for certiorari; and I do not think that this Court should adopt in its own procedure any lower standards than those it prescribes for others.”[12]

(v) that in Rupa this Hon’ble Court unreasonably narrowed the frontiers of the doctrine of ex debito justitae by caging it into two propositions which are right to the extent they go, but they do not exhaust its province as it leaves out the situations where there are reasons to assert that a Superior Court, even after assuming right jurisdiction, has gone grossly wrong by breaching/non-protecting Fundamental Rights, and by clear and evident transgression of the Rules of Natural Justice. The content of the rule of Audi alteram partem is not exhausted by the norms governing the two situations spelt out in the Court’s Judgment. In Rupa this Hon’ble Court failed to appreciate that even if someone may be a party to a proceeding, and has sufficient notice thereof, yet the decision of the court may contravene the sacred rule. De Smith crisply states the law on this point[13]: “…in the Anisminic case members of the House of Lords emphatically repudiated the idea that the jurisdiction of an inferior tribunal was determinable only at the outset of its inquiry…” He spelt out four situations in which a tribunal having jurisdiction over the matter in the first instance might exceed its jurisdiction:

(i) by breaking the rules of natural justice,

(ii) by applying a wrong legal test and answering the wrong question,

(iii) by failing to take relevant considerations into account, or

(iv) by basing the decisions on legally irrelevant considerations

Commenting on de Smith’s statement of what was done in Anisminic, H.M. Seervai comments:

“But this was nothing new, for…that idea had already been rejected in a number of earlier cases: R. Nat Bell Liquors Ltd (1922) A.C. 128, 156 .”[14]

(vi) The power ex debito justitiae. Ex debito justitiae contemplates a segment of inherent judicial power, which must be exercised by the court as a matter of judicial duty if the proper circumstances for the exercise is pleaded. This import emerges clearly from the definitions of the doctrine: it means--

(i) As a matter of right; in opposition to a matter for the favour of or discretion. Mozley Whiteley’s Law Dictionary

(ii) As debt of justice. As a matter of legal right. 3 Bla. Com. 48

(iii) It is well-established principle of law that every court has inherent power to act ex debito justitiae---to do that real and substantive justice for the administration of which alone it exists or to prevent abuse of the court. Dinesh Dutt Joshi v State of Rajasthan 2000 (8) SCC 570

(iv) From or as a debt of justice; in accordance with the requirement of justice; of right; as a matter of right. Black’s Law Dictionary 7th ed.

(vi) When all is said this humble Petitioner DEMANS JUSTICE against the impugned decision which is, it is most respectfully submitted, incorrect for flaws some of which are highlighted hereinafter in this Section.

(c )THE PROVINCE OF ART 32:

16. That by enacting Art.32 the Constitution created a new fundamental right, namely, the right to move the Sup. Ct by appropriate proceedings for the enforcement of the rights conferred by Part III.[15] The Constitution has given us guaranteed rights: as a matter of inevitable corollary, it grants an effective and guaranteed rights [16] for their enforcement: Ubi jus ibi remedium. This principle would help determine the frontiers of the remedies specified in Art 32(2). ‘This is the more so because Art 32 shows that in our Constitution right and duties go together’[17]. As the Constitution makes the fundamental right inhere in citizens, the State (and its organs including Judiciary) are subject to the correlative Duty.[18] The expression ‘appropriate proceedings’ has an express referent to Art 32(2). The expression ‘power’ in Art 32(2) reinforces through a counterpoint the concept of Duty as public power of this sort is always coupled with duty.[19] ‘Directions’ or ‘orders’ or ‘writs’ are comprehensive enough to constitute a larger Set of which ‘writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari’ are ex facie a narrower sub-Set leaving much space for judicial creativity to mould remedy to render the enforcement of rights effective, and to enable this Hon’ble Court to evolve new dimensions of the specified remedies as the British courts have done responding to the needs of changing times. This Petitioner would say in the words of Lord Roskill:

“It is, I hope, not out of place in this connection to quote a letter written in 1896 by the great legal historian F W Maitland to Dicey himself; the only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law; see Cosgrove The Rule of Law: Albeit Venn Dicey: Victorian Jurist (1980) p 177. Maitland was in so stating a greater prophet than even he could have foreseen, for it is our legal history which has enabled the present generation to shape the development of our administrative law by building on but unhampered by our legal history”[20].

17. The superior judiciary, as an organ of the State, is subject to the same constitutional obligations duties and limitations to which other organs are subject. The following two points are the express pointers:

(i) The Draft Articles on Fundamental Rights had prescribed the exclusion of the Supreme Court from the incidence of Art 32 but the Constituent Assembly, on consideration, abandoned this proposal. There is nothing stated to chime with this sort of exclusion by inserting a clause like this.: ‘Nothing in this article shall apply to any decision or order of the superior courts.’ Munshi’s Note on Draft Articles on Fundamental Rights on Constitutional Remedies had specifically excluded the Supreme Court from prohibitory reach[21] [ the text of the draft Article XIII is set forth in the footnote below], but this was not accepted by the Assembly.

(ii) If this Hon’ble Court takes the superior court out of the reach of Art 32 (1) & (2), it virtually inserts a new sub-Article 32(5) into the Const. with the following content:

“Nothing in this Article shall be deemed to confer on the Supreme Court power grant remedies against the Superior Courts.”

The Judiciary wields no constituent power to amend the Constitution as contemplated under Art. 368 of the Constitution. It is not permissible for the Supreme Court to bring about in any form a legal position which has the effect of amending Art 32 of the Constitution, which is beyond the constitutional competence of this Hon’ble Court.

18. That in the Order dated 28. 11, 2007, against which this Review Petition is moved, this

Hon’ble Court stated:

“Petitioner contended that there may be occasions where the decisions of this Court may violate the fundamental rights of citizens and under those circumstances, the aggrieved should have remedy under Article 32 of the Constitution against such decisions. In support of his contentions, he referred to the views of several learned authors and decisions of English Courts. It is not necessary to refer to them, as the question has been exhaustively considered by the Constitution Bench of this Court in Rupa Ashok Hurra.”

This humble Petitioner took the Hon’ble Court to the detailed exposition made by such eminent authorities as H.M. Seervai, Dr D.D. Basu, Ramchandran and others, besides various decisions of the Courts in the UK. and the U.S.A. In the Written Brief filed on 24. 10. 2005, after examining the various aspects of our Constitution and the detailed exposition in the books of the learned authors, this Petitioner mentioned:

“After analyzing all the relevant decisions, and taking into account all relevant points, our experts have observed:

(i) “The Author is definitely of opinion that reason of the word ‘includes’ the definition in Art. 12 enables the Indian Supreme Court tom include within the definition all the three organs of the State (executive, legislative, and judicial) as well as other authorities which have been included within the concept of State action in the U S A, and that any narrowing down of the ambit of the definition would be defeating the object of inserting the definition in Art. 12.” Basu, Commentary on the Const. of India A/1 (1996) p. 243

(ii) “..the judiciary wields the judicial power of the State, and Art 144 emphasises the fact that judgments would be worth little if the full authority of State were not exerted to give effect to them. …in the United States it is settled that the judiciary is within the prohibition of the 14^TH Amendment…….This is all the more so, in view of the fact that the inclusion of the writ of certiorari in Art 32 clearly shows that some fundamental rights can be violated by Courts stricto sensu.” Seervai, Const.Law 4^th ed. p.394 para 7.107

(iii) “There is no justifiable reason why the Judiciary should not be included in the inclusive definition of the ‘State’ under Article 12 of the Constitution.” V.G Ramchandran in his Law of Writs 5^th ed pp.47- 56

(iv)H. M. Serervai for a forceful argument that judiciary is ‘the State’ even in the exercise of its judicial functions. This would also seem the view taken by Mukharji J. in A R Antulay v. R S Nayak[22] (1988) 2 SCC602” Prof. V.N.Shukla, Constitution of India, (10^th ed. at p. 26.)”

It is submitted that one point was obvious that “a Substantial Question as to the interpretation of the Constitution of India was involved in the Writ Petition which merited its disposal by way of dismissal only by a Bench of Five Hon’ble Judges.

(d) OTHER CONSTITUTIONAL ISSUES

Some other material and seminal questions of Constitutional Law had been specifically raised, but were ignored

(i)

Rule of Natural Justice breached, and an unreasonable approach adopted

19. Even this could happen, an interested party’s book written, whilst matter was subjudice, was turned into the sole ground to decide what the High Court considered the core issue (when the book had not been produced in course of hearing, nor the issue had been articulated for consideration). It was a miscarriage of justice as the very heart of the issue in the impugned Judgment was decided in breach of the Rules of Natural Justice by banking wholly on the 3 long paragraphs taken from a book written by an interested person (without juristic credentials) during the period the matter was before the Hon’ble High Court, and before this Hon’ble Court[23]. (Vide W.P. pp 210 to 253). Such a book had never been relied on to decide a point considered “core issue”[24] by the courts ever in the past in any civilized country world over. For the first time in the world a judicial decision is founded on the opinion of the interested person, which in itself is enough to render it non est. The author, a formal partner of the infamous Arthur & Anderson, is a professional advisor of the offshore and tax haven companies, and has deep interest in Mauritius, and chose to write the book while the PIL was going on before the High Court and the Supreme Court. (He was a C.A working as consultant[25] figuring as an expert on the Website of a firm of professionals who conducted the case of the Mauritian company before the Hon’ble Division Bench which had granted it leave to become a co-Appellant for the first time before the Supreme Court. The website describes him as “ a strategy and international tax consultant to several Indian and Overseas companies.”

20. The Rule of Audi alteram partem required:

(a) That the passages be specifically cited in the course of argument in full comprehensiveness by producing the book wherefrom the passages are cited because it is always possible that other details in a given book not only render the ideas in the passages unreliable and diluted in cogency, but may also show that the author is unworthy of being treated “a reputable author” for the purpose of reliance in any judicial decision-making.

(b) That, if the ideas set forth in the passages are vital for the disposal of a case, it is expected that the Court should, of its own, “put the point [ to the Respondent] during the argument”. If above conditions of procedural propriety are breached “ there is a breach of the rule of audi alteram partem which applies alike to issues of law as to issues of fact”[26].

21. That the principles, which guide the courts in selecting textbooks for reliance, are well settled. Hood Phillips’ Constitutional and Administrative Law (7^th ed ) at p 24 states:

“Whether a text-book will be treated as authoritative this special sense is determined by the tradition of the legal profession and the practice of the courts, and depends on such factors as the reputation of the author and the date when the book was written”

Oppenheim’s International Law[27] states:

“…..the work of writers may continue to play a part in proportion to its intrinsic scientific value, its impartiality and its determination to scrutinize critically the practice of states by reference to legal principle.

22. That the well settled norms not only for selecting a textbook but also for using the materials therefrom are best summarized Megarry J. in Cordell v. Second Clanfield Properties[28]:

“I would add one comment, in amplification of certain observations that I made when during the argument Counsel cited a passage from the third edition of Megarry and Wade’s Real Property. It seems to me that words in a book written or subscribed to by an author who is or becomes a judge have the same value as those written by any other reputable author, neither more, nor less. The process of authorship is entirely different from that of judicial decision. The author, no doubt, has the benefit of a broad and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to pre-conceptions and lacks the advantage of that impact and sharpening of purpose which the detailed facts of a particular case bring to a judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case. Argued law is tough law….I would, therefore, give credit to the words of any reputable author in a book or article as expressing tenable and arguable ideas, as fertilizers to them and as a convenient expression of fruits of research in print, often in apt and persuasive language. But I would do no more than that, and in particular, I would expose those views to the testing and refined process of argument. To-day, as of old, by good disputing shall the law be well known.”

In the light of the observations of Megarry J this Petitioner submits that the judicial consideration of a book by an interested person to decide the core issue at the heart of the matter is unreasonable and arbitrary at the same time. High constitutional issue emerged whether under our Constitutional mores and world-view what was done is sustainable at all. Explaining the New Doctrine of Art. 14, this Hon’ble Court had made a profound statement that, “an action that is arbitrary , must necessarily involve negation of equality.[29]”

23. That this humble Petitioner thought a decision founded on such a book would soon be undone when this serious flaw was highlighted, but this Petitioner now finds that the impugned decision survives despite all these. We have known some instances when the standard writings even of our contemporary writers are cited, but they are seldom relied on except on the profile of current events, and contemporary public view. This Petitioner has not noticed any decision which is turned to the prejudice of the Respondent on the basis of an interested person’s book used as an affair of the Judges’ private research. Can a multibillionaire accused get a hack to write for him a treatise promotive of his case before a court of law as in this Globalised market economy everything is res commercium? Will a court of law in its proper role decide in his favour accepting the thesis of such an interested person? It is a sound adage that justice should be seen to have been done. If this approach is reasonable, then the sheaf of papers so grossly flawed would give him the last laugh cocking a snook at Justice to the chagrin of our national motto "Satyameva Jayate" (satyam eva jayate).

(ii)

Does our Constitution conceive things as these?

An act without Jurisdiction: D.B. ignores the C.B.

24. The impugned Judgment, against which the Writ Petition had been filed, was a nullity as it was without Jurisdiction as it ignored the binding rule governing the Precedents and ordinary judicial decorum. It ignored the decision of the Constitution Bench in McDowell & Co v. CTO[30] by dubbing it a “hiccup” and “a temporary turbulence” (vide W.P. 110-117: p.b. 165-172) merely because without dismissing it with pejoratives the Bench could not have turned Nelson’s eyes to the unwholesome inner realities of the corporations of the third States masquerading as the Mauritian citizens to access unfairly the benefits of a bilateral tax treaty between India and Mauritius thereby wrongful gains to themselves and wrongful loss to our Republic. It is worth underscoring that the Division Bench of two Hon’ble Judges should not have given to the judgment of Justice Reddy, with which all other Hon’ble Judges of the Constitution Bench specifically agreed, a short shrift. It is a point which touches not only judicial decorum, but it affects the Bench’s Jurisdiction itself.

25. That A. R. Antulay v. R. S. Nayak recognizes a hierarchy in this Hon’ble Court, “ the practice followed by this Court and now it is a crystallized rule of law” which was reiterated in by Shetty J. in Triveniben v. State of Gujarat,[31]; and practiced by the 3-Judges Bench of this Court in in Commr of Central Excise v. Tatan Smelting & Wire20050 2 SCALE 280.

26. That, it is felt, that the impugned Judgment should not have stated in the Judgment:

“And as far as this country is concerned, the observations of Shah J. in CIT v. Raman [1968] 67 ITR 11 (SC) are very much relevant even today.”

The Hon’ble Division Bench missed to notice that even the Majority Judgment in McDowell had noticed the observation of Justice Shah in CIT v Raman & Co [1968] 67 ITR 11 SC; and with full consciousness of this case approved the judgment of Justice Reddy by observing: “On this aspect, one of us, Chinappa Reddy J. has proposed a separate and detailed opinion with which we agree.” “To agree” is explained in Collins Cobuild thus: “If one person agrees with another or if two or more people agree, they have the same opinion as each other.” The COD defines it as “hold a similar opinion.” “Agree” is semantically cognate with the expression “approve”. These judicial observations highlight the following points of great importance:

(a) In our Supreme Court the structure that has evolved is hierarchic whereunder “ larger Benches overrule smaller Benches”. The concept of “hierarchy within the Court itself” is one of seminal importance as disobedience to this binding norm would render the decision in breach of the norm clearly without jurisdiction, hence non est.

(b) “This is the practice followed by this Court; and now it is a crystallised into a rule of law.” Crystallization as a rule of law means the emergence of a binding rule of substantive law. In effect, the view is derived from the well-known maxim Cursus Curlaef Est Luxe Curiae ( The practice of the Court is the law of the Court).

By not abiding by a binding rule of law (not a rule of practice), the Hon’ble Bench passed an order without Jurisdiction, and also economized with judicial decorum in inflicting undeserved epithets on the Constitution Bench: that certain vital principles of our Constitution were ignored raising substantial questions as to the interpretation of our Constitution. The operative rule was thus stated in A. R. Antulay v. R. S. Nayak and Anr[32]:

“The principle in England that the size of the Bench does not matter, is clearly brought out in the decision of Evershed M.R. in the case of Morelle v. Wakeling, (1955 (1) All ER 708) (supra). The law laid down by this Court is somewhat different. There is a hierarchy within the Court itself here, where larger Benches overrule smaller Benches.”

Does our Constitution warrant a revival of Morelle v. Wakeling? This itself is a high

constitutional question pertaining to the interpretation of our Constitution.

(iii)

Rules of Natural Justice breached: Art. 14 of the Const. not protected

27.That the rule of Audi alteram partem can get frustrated in many other ways. How can the requirement of this rule be considered fully met if in an impugned judgment such things as these happen in course of the hearing of the case ( an extract from the Summary submitted before this Hon’ble Court, on mention, on Sept. 1, 2004 when the Curative Petition had come on the board for the first time):

“The core issue of Treaty Shopping was decided in a patent breach of the rule of audi alteram partem as (a) as Lord McNair has been misread to see X where it is Y; (b) as the Conduit Company Report 1987 was used in breach of the rule compounded by the error of overlooking that the view was later revised and departed from in several jurisdictions( pp. 172-176 of the Curative).; (c ) as many material observations are based on mere surmise having the effect of accepting the slur that the then Attorney-General chose to inflict by implication, in breach of the rule of natural justice, on Mrs Indira Gandhi and Mr Pranab Mukherjee as they had gone to Mauritius in 1982 when the Indo-Mauritius DTAC was under negotiation; (d) as the entire admitted factual substratum in the PIL was not considered by circling out the facts in the Assessment of Cox & Kings by overlooking the settled law accurately stated in Mulla [ in his CPC 14^th ed at p 868]; (e) as the sole reasoning for upholding Treaty Shopping is based on three long paragraphs from an interested person’s worthless book, meant for tax haven masqueraders ( which is a mere shabby defence of fiscal vampirism based on no judicial authority) utilized by the Hon’ble Court contrary to the rule of audi alteram partem; (f) as the perspective judicially mandated by McDowell and many other decisions of larger Bench was missed having deleterious effect on the operation of the rule of audi alteram partem and fundamental principles of justice.”

To illustrate how Jurisdiction was wrongly assumed/abdicated, attention was drawn, with utmost humility, to an error going to Jurisdiction emanating from an unfair circling out, without any reason, of the entire factual substratum on which the Assessing Officer under the Income-tax Act, 1961 [vide Writ Petition pp.118-125: P.B. p173-180] had built a well-investigated case in appreciation whereof the Delhi High Court it the penultimate paragraph went to the extent of observing:

“ We would however like to make an observation that the Central Govt. will be well advised to consider the question raised by Shri Shiva Kant Jha who has done a noble job in bring into focus as to how the Govt. of India had been losing crores and crores of rupees by allowing opaque system to operate.”’

It was also the breach of the Rules of Natural Justice as discussed in the Writ Petition pp.118-125.This Petitioner respectfully recalls Lord Hailsham who reminded the judges in his Hamlyn Lectures that the rule “Be you ever so high, the law is above you” applies to the judges as it applies to ministers.(italics supplied)

28.That such a breach of the Rules of Natural Justice cause the violation of Article 14 of our Constitution. This Hon’ble Court, which has produced a rich corpus of justice-oriented jurisprudence, with activist dimensions, would construe the Audi alteram partem creatively to render substantial and substantive justice. Even a conservative judge of the U.S Supreme Court, Justice Felix Frankfurter observed in Caritativo v. California[33]:

“ audi alteram partem ---hear the other side!--- a demand made insistently through the centuries, is now a command, spoken with the voice of the Due Process Clause of the Fourteenth Amendment, against state governments, and every branch of them……whenever any individual, however lowly and unfortunate, asserts his legal claim.”

Goldsmith v. Sperrings Ltd[34] stated an important principle in the context of the Superior Court ( here the Court of Appeal ). Explaining how the judge’s “judicial research” was in breach of the rules of audi alteram partem Bridge,LJ. said:

“ Hence there is a breach of the rule of audi alteram partem which applies alike to issues of law as to issues of fact. In a court of inferior jurisdiction this would be ground for certiorari ; and I do not think that this Court should adopt in its own procedure any lower standards than those it prescribes for others.”

(e) WHAT THE HON’BLE COURT DID ON THE WRIT PETITION:

ISSUES NOT FACED

28 That, on the Writ Petition the course reasonably open to this Hon’ble Court was:

(i) to answer whether it is ever feasible under our Constitution, on a proper interpretation of Articles 12, 13, and 32 [ under the light shed analogically by Articles 53(1); 73; 131; 135; 136(2); 138; 140; 145; 245; 246; 372(1)(2) of our Constitution] under the constitutional frame-work, which subjects all organs to constitutional discipline and obligates imperatively them all to carry out it commands, it is possible even for the Superior Courts to violate or non-protect People’s Fundamental Rights by its Judicial Orders;

(ii) to answer, if answer to the first question in favour of the Petitioner, to a consequent/subsequent question, if on the facts set forth in the Writ Petition there is any breach or non-protection of Fundamental Rights in the impugned Judgment of the Division Bench; and if answers to (a) and (b) go against this Petitioner to consider whether Rupa is right in narrowing down the doctrine of ex debito justitiae to two mechanical and marginal situations of non-notice, and judicial bias,: and if it is possible to set right the blemishes in the impugned Judgment within the universally accepted parameters and frontiers of this doctrine expressing what is integral to Art. 142 of the Constitution of India.

29. That the Hon’ble Court neither answered question (a), nor answered (b), but wrongfully assumed that the question (a) was conclusively answered in Rupa; and totally ignored another pertinent constitutional question raised in (b) supra.

30. That to hold in the Judgment that question (a) was “ exhaustively considered by the Constitution Bench of this Court inn Rupa Hurra” is a manifest mistake by the Hon’ble Court. Never in the past was a straight question ever posed before this Hon’ble Court. In Rupa, instead of answering the referred question, this Hon’ble Court modified it in a manner which was never conducive to answer the question raised by this Writ Petitioner: Whether in the context of our Constitutional provisions a Remedy under Art. 32 could be availed of against the decisions of a judicial decision? The question that the Referral Court framed was:

“Whether the judgment of this Court dated March 10, 1997 in Civil Appeal No. 1843 of 1997 can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be considered by a Constitution Bench of this Court."

But in the Constitution Bench, in Rupa, reframed the question thus:

“whether an aggrieved person is entitled to any relief against a final judgment/order of this Court, after dismissal of review petition, either under Article 32 of the Constitution or otherwise.” [italics supplied]

‘Any’ means, to quote the Shorter Oxford Dictionary, “ a. ---. Some --. No matter which,

or what”. It is submitted that this Hon’ble Court is invited to decide the issue for the first

time as a principle issue wholly material in the decision on the cause agitated before it.

Hence, it follows that the issue raised in the Petitioner’s Writ Petition was under

consideration in Rupa. The observations touching this issue were:

(a) casual obiter, not needed for actual decision; and

(b) even the casual obiter dicta were made in a case decided on

a different point on the Concession of the appearing counsels.

(f) HENCE SOME GREAT QUESTIONS PERTAINING TO THE INTERPRETATION OF OUR CONSTITUTION AROSE

31.That, hence, the issues before the Hon’ble Court were:

(i) the issues of the highest importance, and involved substantial questions of the Constitutional interpretation;

(ii) the issues involving the interpretation of Articles 12, 13, 32, and many other Articles of our Constitution;

(iii) the issues raised in the Writ Petition were wholly res integra or res nova, as this Hon’ble Court never decided these issues ever in any of the Judgments hitherto delivered; [ in fact, these provisions were never examined in any decision except to some extent by Rajagopala Ayyangar J in his dissenting Judgment in Ujjam Bai [AIR 1962 SC 1621 para152 at p. 1678; and the observations in Naresh and Antulay and also Rupa are casual obiter dicta, not needed for actual decision, and were made on the Concessions of the appearing counsels [ Vide for legal perspective and principles: W.P. 73-84; P.B. pp. 128-139; also Krishena v. UoI AIR 1990 SC 1782, CIT v. SEW AIR 1993 SC 43,Municipal Corporation v. Gurnam AIR 1989 SC 38 (paras 10-11) ]; and.

(iii) the issues in the Writ Petition had been raised:

(a) to protect our Constitution from subtle frauds continuously perpetrated

by a an entente cordiale of Collusion and Fraud. The view of this

Petitioner finds support from the opinion of an expert[35];

(b) to seek correction of the impugned Judgment wherein the perception of the Judicial role does not accord with our Constitution. The Hon’ble Davison Bench’s cri de Coeur for the Executive or Parliament for an intervention to prevent the evil of Treaty Shopping is a matter of grave public concern as it is a conjoint product of two manifest judicial mistakes: (i) an abnegation of an inherent judicial function which amounts to virtual abdication of the right judicial role; (ii) a non-perception an inherent contradiction in the convoluted judicial reasoning which makes, on the one hand, an invocation to the Executive or Parliament for action, but, on the other, decides the issue by approving it, which the inevitable effect of what the Division Bench has done as a matter of actual decision. This Judicial Oxymoron & the Judicial Cri De Coeur go against the constitutional role of the Supreme Court[36].

[IV]

GRIEVANCE AGAINST THE HON’BLE COURT’S ORDER OF NOV 28, 2007

[Requiring immediate correction/review & reconsideration]

32.That a careful reading of the Order dated Nov. 28, 2007 passed by the Division Bench of Three Hon’ble Judges (against which this Rectification/Review Petition is filed), this Petitioner is driven to a view that serious manifest errors have crept in the said order causing a grave miscarriage of justice in this PIL of greatest constitutional importance. This Petitioner was free not to initiate this PIL, but having done so, it becomes his duty as a citizen to help this Hon’ble Court to come to right decision within our constitutional parameters; and to pursue all ways permissible under our law and Constitution till he reaches a veritable cul-de-sac.

V

ISHVAROHAM: OUR CONSTITUTION DOES NOT RECOGNIZE IT

The Finality of a Judicial Order ought to yield to the Fundamental Rights

33. That the effect of the judicial observations and order was summarized in the heading of an

article published in The Hindustan Times on Nov. 28, 2007: “Verdict higher than

fundamental right”.

34. That Thomas Hobbes, in his Leviathan, considered Judicature an organ of the State (civitas). He did not refer to legislature as at that time it didn’t exist. In his “The Law of Free Monarchies”, James I held that judicial and executive powers inhered in the King alone who was God’s vice-regent on the earth. This legal position still continues in England: “In the contemplation of the law the Sovereign is always present in the court….”.[38] In England the Superior Courts are answerable, as Holdsworth says, “only to God and the King”[39], and under the Constitution of India the King or the Queen is non-existent, and God is irrelevant in the polity or governance. Its full import becomes clear when certain fundamental principles of the British Constitutional history are taken into account. Holdsworth (History of English Law Vol. 6 page 239) refers to the theoretical possibility of a judgment of a superior Court being a nullity if it had acted coram-non-judice. But who will decide that question if the infirmity stems from an act of the Highest Court itself? He writes perceptively:

“............it follows that a superior Court has jurisdiction to determine its own jurisdiction; and that therefore an erroneous conclusion as to the ambit of its jurisdiction is merely an abuse of its jurisdiction, and not an act outside its jurisdiction ............”

“.........….In the second place, it is grounded upon the fact that, while the judges of the superior Courts are answerable only to God and the King, the judges of the inferior Courts are answerable to the superior courts for any excess of jurisdiction.......”

“Theoretically the judge of a superior Court might be liable if he acted coram non judice; but there is no legal tribunal to enforce that liability. Thus both lines of reasoning led to the same conclusion—the total immunity of the judges of the superior Courts.”

35. That the American Constitution, which provided us with a model of a written constitution with fundamental rights and the borrowings wherefrom are so evident in our Constitution (especially in Art 14), provides an appropriate perspective for comprehending constitutional issues under our Constitution. The Attorney-General, addressing the court in the Five Knights’ Case (one of the state trials of Stuart England) for the Crown asked, “Shall any say, The King cannot do this? No, we may only say, He will not do this.”[40] It was precisely to ensure that in the American system one would be able to say, “The State cannot do this,” that the people in America enacted written Constitution containing basic limitations upon the powers of government[41]. We have done precisely the same under our Const. Art. 14 is much more entitled to the American gloss than Art 21 where juristic transmutation has produced virtually an ersatz version of the American due process “due process” in our country. [On the American position: Constitution of the United States of America 4^th Ed (Congressional Ed.); Shelley v. Kraemer334 US 1 C (1948); Ex p. Virginia (1880) 100 U.S. 339 (347); Bridges v. California (1941) 314 US 252 H.N. 4]

36. In England the Superior Courts are answerable, as Holdsworth says, “Only to God and the King”[42], but we have done away with King or Queen. Then, to whom are our superior courts answerable? Our Constitution knows no Grand Mughal. Here we see Justice presiding at the altar with the words of Gandhari writ large on the emblem of this Hon’ble Court ‘Yatoh Darmah tatoh jayah’. Our superior courts are, on reasonable reflection, answerable to the high institution of Judiciary itself. If a judgment causes gross miscarriage of justice, or it fails to protect and/or sustain fundamental rights, justice can be demanded under Art 32 of the Constitution. In providing such remedies against their own orders the Superior Courts are answerable to themselves as institutions, bound by the very inherent logic of their existence itself to do complete justice.[43] Mathew J, M.L.Sethi’s case, missed the point in following Lord Denman’s dictum in R. v Bolton (1841) 1 Q.B. 66 that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. The view is no longer valid vide.

37. Ujjam Bai relied on Rex v. Boltan, (1841) 1 QB 66 at p. 74 which held that the question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable "at the commencement, not at the conclusion, of the inquiry. de Smith observes that in the Anisminic members of the House of Lords emphatically rejected the idea that the jurisdiction of a tribunal was determinable only at the outset of its inquiry.[44] Naresh and Rupa continue, though without reference, this line of thinking stated by this Court in Ujjam Bai vide para 15p. 1629 of AIR 1962 sc 1621. Lord Denning considered Bolton in O’Reilly v. Mackman [1983] 2 AC 237 at 253 ‘ a black-out against any development of administrative law’. Wade has criticized this case, and has aptly observed:

“But it does not in the least follow that no sort of error made in course of the proceedings can affect jurisdiction. Some questions may arise which the tribunal is incompetent to determine; or some point may be decided in bad faith or in breach of natural justice or on irrelevant grounds, or unreasonably, all of which faults go to jurisdiction and render the proceedings a nullity.”[45]

This new perspective deserves to be acknowledged. Besides, the “principle that a tribunal which has initial jurisdiction to decide a matter does not lose its jurisdiction by coming to a wrong conclusion, whether in law or fact, has no application where it is alleged and established that the Constitution has been violated, for, no tribunal can claim an initial jurisdiction to make a decision which offends the ‘higher law’ of the land.”[46]

38. There are copious internal pointers in the Constitution itself that amply suggest that our Constitution has structured the Court under a set of clear limitations. Freedoms declared by Art. 20, 21and 22 were in terms absolute and were not liable to be tested on the touchstone of reasonableness[47]. Following matters appear to be excluded from the original jurisdiction of the Supreme Court, and are vested in other tribunals:

(i) Certain Disputes specified in the Constitution. Complaints as to interference with inter-State water supplies, referred to the statutory tribunal mentioned in Art. 262 read with s. 11 of the interstate water disputes Act (33 of 1956)

(ii) matters referred to the Finance Commission (Article 280)

(iii) Adjustment of certain expense as between the Union and the States (Article 290)

(iv) A reference to the Supreme Court under Article 143 (2) read with the proviso to Article 131.

After examining the point at issue H.M.Seervai comments:

“Therefore if a writ of certiorari lies under Art. 32 for the enforcement of fundamental rights, it must follow that there are some fundamental rights, which can be violated by a judge acting judicially in a court stricto sensu. The referring judgment of Venkatarama Aiyar J. records that it was conceded, and it is submitted rightly, that there were certain Articles of the Constitution specifically directed against the judiciary, e.g. Art. 20 and that a violation by a court of Art. 20 would attract the writ of certiorari under Art. 32.”[48]

Sarkar J Sarkar J in Naresh has highlighted the difference inter se the juristic perspectives of the U.K., and India[49]:

“ 83.The inferior court conceived in English law in this context is a court of limited jurisdiction: 1948-1 KB 195. The origin of this test of an inferior court appears to have been this. In English theory, all judicial power is vested in the King. It was earlier exercised by the Court of King's Bench because the King, initially in person and later in theory sat there. In course of time as the Court in which the King sat, actually or in theory, was not enough to meet the needs of the people, a number of other courts had to be set up. The instruments creating such other courts always defined their jurisdiction. The King, however, retained his right to see that these courts did not encroach upon the royal prerogative of dispensing justice that is entertained cases which were beyond their jurisdiction as limited by the instruments creating them and thereby decided cases which the King had the right to decide. In England the King was the court of universal jurisdiction and he, therefore, issued the writ to the courts of limited jurisdiction to keep them within the limits prescribed for them. The King's prerogative to issue the writ is now vested in the High Court of England by statute. I am referring to this aspect of the matter only for the principle and origin of the rule that a certiorari could be issued only to inferior courts.

84. In our country there is no court of universal jurisdiction in the sense in which the High Court of England is. The jurisdiction of our Supreme Court is prescribed by the Constitution. The Constitution also provides how the jurisdiction of High Courts is to be prescribed. Jurisdiction of other courts is to he found in the statutes setting them up. Thus, in our country all courts are in this sense, courts of limited jurisdiction.”

39. The doctrine of the absolute finality of the decision of this Hon’ble Court is a fossil from the ancient British Jurisprudence where there is no written Constitution with entrenched Fundamental Rights. This doctrine cannot stand under the edict of our Constitution whose creature is even this highest Judiciary. In the U.K. Constitution is a by-product of people’s struggle with the Crown; in India Constitution id the will of ‘We, the People putting all organs under total limitations. Dr Ambedkar who was at the most conscious point in the process of our constitution-making, described Art 32 of the Constitution as “the very soul and the very heart of the Constitution”. Art 136 which provides a discretionary remedy cannot be elevated to the point to be considered the very soul of the Constitution. The soul of the Constitution cannot be subject to the antiquated (and now rejected even in the country of its birth) doctrine of the ‘Finality of a Judicial Order’. Dr Basu has aptly observed: “It is nowhere laid down in the Constitution that Art 32 will be excluded by Art. 136.” No exclusion can be created as such an exercise would be manifestly without jurisdiction.

40. That the Doctrine of the Finality of an Order ( even when dehors a higher law) is a throwback of the jurisprudence of the Christian world where even God turns Fascist to silence Job in the Book of Job of he Old Testament of the Bible: ‘BE SILENT. GOD’S WILL IS BEYOND QUESTION: IT IS FINAL.’ Though in modern times, things are turning different even in the West. Art. 1(3) of the German Constitution states:

“The following basic rights are binding on legislature, executive, and judiciary as directly enforceable law.” (boldness supplied)

Art. 20(2) mentions ‘judiciary’ as one of the specific organs of the state. It says:

‘All State authority emanates from the people. It is being exercised by the people through elections and voting and by specific organs of the legislature, the executive power, and judiciary.”

Art 92 sets up a Court Organization. It vests judicial power in the Judges. Art. 97 declares the Judges independent and subject only to law. Art 98(1) provides for the legal status of judges in the Federation and the States. Art. 98(2) runs as under:

“Where a Federal Judge, in his official capacity or unofficially, infringes the principles of this Constitution or the constitutional order of a State, the Federal Constitutional Court may decide by two-thirds majority, upon the request of the House of Representatives, that the Judge be given a different office or retired. In a case of intentional infringement, his dismissal may be ordered.”

In the U.K., in R.v.Shivpur, the House of Lords departed from the view taken by five Law Lords in Anderton v Ryan only a year back as the House felt that Anderton caused serious distortions in law.Lord Bridge in his principal speech articulated the ground for a reconsideration in an extremely compressed, almost axiomatic statement: “If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected better”. Lord Hailsham very aptly reminded the judges in his Hamlyn Lectures that the rule “Be you ever so high, the law is above you” applies to the judges as it applies to ministers.(italics supplied).And Lord Bridge L.J. said in Goldsmith v. Sperrings Ltd[50] that there was no reason for the superior courts not to stand the test of scrutiny to which is subjected the inferior courts:

“Hence there is a breach of the rule of audi alteram partem which applies alike to issues of law as to issues of fact. In a court of inferior jurisdiction this would be ground for certiorari; and I do not think that this Court should adopt in its own procedure any lower standards than those it prescribes for others.”[51]

Fundamental rights are mandatory directions to all tribunals, including courts stricto sensu, irrespective of the fact that the issues relate to matters going to jurisdiction, or are in exercise of jurisdiction.

41. That but our tradition is different. Not to say of questioning Kings, we have even questioned God who without demur accepted Himself under Dharma. In the Valmikya Ramayana, Bali made the severest criticism of Lord Rama’s conduct in striking him with an arrow from a hide. The Lord took it in the right spirit. He answered Bali comprehensively without slightest resentment. He explained his conduct with clarity, comprehensiveness quoting the high precedents by which even HE too was bound[52] he said:

You might have done what I have done;

Manu in the Smritis has said two slokas

Which the great ones have accepted and followed;

I have acted the way they counseled.

His answer covers a whole Canto of the Valmikya Ramayana. Shri Rama considered Himself bound by the fundamental norms of Rights and Duties as set forth in Manusmriti. He made it clear that even He was working under constitutional limitations. Tulsidas has laconically described Bali’s charges in these two celebrated lines of the Ramacharitmanasa:

Dharma hetu avatarhu gosayin, mara mohi byadh ki nayi.

Main veri Sugriva piyara karan kawan nath mohi mara.

[O Lord! you came to ensure the triumph of dharma, but you have killed me behaving as an ordinary hunter. Tell me the reasons why have you discriminated me from Sugriva.]

42. That Chief Justice John Marshall recognized this position in Marbury v. Madison which he concluded with a fundamental proposition of constitutional government:

“Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions , that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.[53]” [italics used in the text].

It is from the judicial Oath itself that Chief Justice Marshall drew all that which our Art 32 contemplates. “Why otherwise does it direct the judges to take oath to support it [the Constitution]”, Chief Justice Marshall, the greatest Chief Justice of the United States, put a rhetorical question in Marbury v Madison[54]. The United States Supreme Court explicitly ruled in Reid v. Covert that the Bill of Rights cannot be abrogated by greements with foreign powers and that such agreements. Justice Hugo L. Black's opinion for the Court declared:

“The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.”

43. That it is to be noted that the judiciary is considered merely as one of the departments of the State. And this is the view emerging from the following observation in Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha & Ors (Case No.W. P.(civil)1of 2006):

‘That the Constitution is the Supreme lex in this Country

is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ. In the celebrated case of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], this Court found certain basic features of the Constitution that include, besides supremacy of the Constitution, the republican and democratic form of Government, and the separation of powers between the Legislature, the Executive and the Judiciary. The principle of supremacy of the Constitution has been reiterated by this Court post Kesavananda Bharati …..”

44. That Dr Bernard Schwartz writes that when counsel defending conviction would cite legal precedents, ‘Warren would bend his bulk over the bench to ask, “Yes, yes---but were you fair?”’ This Petitioner too would pose a question for judicial consideration. Is it fair:

to tell the Parliament, where the whole Nation is deemed present[55] “You can not, even by the exercise of the Constituent Power, amend the Constitution if it transgresses the judicially created Doctrine of the Basis Structure of the Constitution, but our decision inter partes would be Final and beyond question?”

This Hon’ble Court too has held in several cases that Art 14 of our Constitution stands violated when anything is done which is arbitrary, or unreasonable as Art. 14 of our Constitution is ‘an antithesis of arbitrariness’. Dr D.D. Basu strikes the same note:

“An analogous assumption that a court has the jurisdiction to decide right or wrong is an obsession following from the English notions about the status and functions of the courts. But the position must have changed after the adoption of the written constitution with a Bill of Rights.”[56]

45. That was it not reasonable to grant the remedy under Art 32 of the Constitution, and if no case of any breach of the Fundamental Rights is made out, to throw out the Writ Petition and to impose punitive cost when considered judicially warranted? Why close even a judicial re-look on the grievance? Does not the Fundamental Duty [Art 51A (h)] subject even the Superior Judiciary to certain duty ? Hasn’t Samkar very perceptively observed in his Aparoksanubhuti,:

notpadyate vina jnanam vicarena nyasadhanaih

yatha padarthabhanam hi prakasena vina kvacit.

(Wisdom cannot be obtained except by inquiry, as things of the world cannot be seen without light.)

46. That the Doctrine of the Finality of Judicial Order surely survives where it does not collide with the mandatory provisions of our Fundamental Rights. We believe that the Constitution must prevail. In effect, the Petitioner’s proposition is that the Judicial Order is surely final after the Review or the Curative, but it is so only when it does not conflict with Arts 12, 13, and 32 of the Constitution. It acquires Finality only when the Writ Petition filed under Art. 32 is decided by this Hon’ble Court, holding that the Petitioner no actionable case. Ella Wheeler Wilcox comes to mind who had said in an imperishable words:

“No question is ever settled

Until it is settled right”

47.That this humble Petitioner, assuming the role of representing the Citizenry of this great Republic of India, asserts that the view of this Hon’ble Court holding that the decision of the Supreme Court “which has attained finality” cannot “be subjected to Judicial Review under Art. 32 of the Const. “at the instance of one of the parties to the decision” is evidently per incuriam under our Constitution crying for immediate correction through decision on this Review Petition. It is submitted that the Hon’ble Court’s view is a matter of deep concern to people as is evident from the caption of the article referred in para 33 supra.

VI

Prayer for Hearing to be held Ostiis apertis ( in the Open Court)

48. That this Petitioner questions, on Constitutional grounds, the Jurisdiction of this Hon’ble Court to pass the order, against which this Review Petition is filed.It is submitted that it would be fair that this Petition for Review be considered in the Open Court so that this Petitioner can substantiate his contentions and put forth material to support his assertions of facts and the law. This Jurisdictional question is new, so this deserves to be considered granting this Petitioner an opportunity of being heard Ostiis apertis..

49. That the normal practice of this Hon’ble Court is to consider a Review Petition in Chambers only, but there are good reasons why Justice requires this Case to be heard Ostiis apertis. It is submitted that decision, whether a matter be heard Ostiis apertis, is always Case-specific. This Petitioner respectfully draws this Hon’ble Court’s attention to what Justice Frankfurter said in Craig v Harne ( 331 US 367,392 (1947): “It has not been unknown that judges persist in error to avoid giving the appearance of weakness and vacillation”

VII

50. GROUNDS

I. For that the Judgment/order, against which this Review Petition is moved, is without

Jurisdiction as it is in breach of Art. 145(1) of the Constitution, and ORDER XXXV of the Supreme Court Rules;

II. For that the Order passed on Nov. 28, 2007 dismissing the Writ Petition contravenes the mandatory provisions of Art 145 of the Constitution, and ORDER XXXV of the Supreme Court Rules, 1966 (Applications for Enforcement of Fundamental Rights under Article 32 of the Constitution), which required the matter to be considered for decision only by a Bench consisting of Judges not less than 5 as that Writ Petition raised ‘substantial questions of law as to the interpretation of the Constitution’; and the Hon’ble Court was not considering any ‘interlocutory and miscellaneous applications’ ‘connected with the petition’ (thus leaving the Petition for judicial deliberation as per law).

III. For that the Writ Petition raised at threshold fundamental issues involving the interpretation of our Constitution. As “the ultimate touchstone of constitutionality is the Constitution itself and not what we [court] have said about it” (per Frankfurter J quoted with approval in Bengal Immunity AIR1955 SC 661 at 671 para 13 ), and as our Constitution provides a long and detailed instrument of government ( not leaving to the judiciary the wide discretionary power which was left to the judiciary of the U.S.), and as the intention of the Constitution is to be drawn from the words and expressions of the Constitution, this Petitioner submits that the observations in Rupa’s Case to the effect that Art 32 Remedy can never be available against the decision of the Superior Courts are manifestly negatived by the words of Arts 12, 13 and 32 of our Constitution.

IV. For that the Writ Petition raised very substantial questions pertaining to some most vital aspects of our Constitution hitherto not settled by any decision of this Hon’ble Court; nor has any decision articulated principles governing the points at issue in this Writ Petition. And these vital constitutional questions have acquired great contemporary relevance in this of Economic Globalization wherein the Corporations rule and the Market (Pax Mercatus) has emerged a new mischievous Leviathan.

V. For that the issues, raised at the threshold, were res nova, as till the present this Hon’ble Court never examined in any case such issues as the contested issues. On the correct analysis of the cases discussed by the Court in Rupa it is seen that none of the cases disclosed any ratio to support the Hon’ble Court’s view that the case exhaustively examined and decided the issue that no Remedy could be granted under Art 32 of the Constitution against the decision of the Superior Courts. This humble Petitioner is driven to the view, after a most careful analysis of the cases mentioned in Rupa, that there is nothing in the ratio of those cases to support that view. This conclusion emerges by applying the standard technique for determining the ratio of a case, whether of Professor Wambaugh’s “reversal” test or of Dr Goodhart’s “material facts” test. The effect of the critical examination of the main cases referred in Rupa can be thus set forth:

(a) In Naresh Sridhar v Maharashtra AIR.1967 SC: the present question: whether Article 32 remedy could be provided against the Order/judgment of a Superior Court was not decided as there was no breach of Fundamental Right; their Lordships recused themselves in specific words from consider the larger issues.[57] After an elaborate examination of this decision, H M Seervai comments (Constitutional Law of India p. 399 para 7.116):

“It is submitted that the dissenting judgment of Hidayatullah J. is correct on all the three questions raised in the petitions. It is to be hoped that the large number of obiter dicta in Mirajkar’s Case will hereafter be treated as such by the Supreme Court and rejected, or will be buried by being ‘strictly confined to the facts of that case’”

And all this led this Petitioner to submit: ‘this Hon’ble Court should treat this criticism by an eminent jurist the way the House of Lords treated the article written by Professor Glanville Williams entitled “The Lords and Impossible Attempts, or Quis Custodiet Iposos Custodies? [1986] CLJ 33 which led the House of Lords in R v. Shivpuri to overrule a decision of the House given only a year back.”. Rupa observed incorrectly

‘that in Naresh a “Bench of nine learned Judges of this Court considered the question whether the impugned order violated fundamental rights of the petitioners under Article 19(1)(a) and if so, whether a writ under Article 32 of the Constitution would issue to the High Court. The Bench was unanimous on the point that an order passed by this Court was not amenable to the writ jurisdiction of this Court under Article 32 of the Constitution.”

(b) Antulay

In Rupa this Court, it is submitted, erred in its view of what constitutes the ratio in A. R. Antulay v. R. S. Nayak and Anr[1]. The material question was thus formulated:

“The main question involved in this appeal, is whether the directions given by this Court on 16th Feb. 1984, as reported in R.S. Nayak v. A.R. Antulay, (1984) 2 SCR 495 at p. 557: (AIR 1984 SC 684 at p. 718) were legally proper. The next question is whether the action and the trial proceedings pursuant to those directions are legal and valid. Lastly, the third consequential question is, can those directions be recalled or set aside or annulled in these proceedings in the manner sought for by the appellant”.

Other observations in Antulay are all obiter open to the same criticism which is deserved

by similar observations in Naresh.

(ii) This Court held in Antulay, with a majority of 6:1, that the directions given by it in 1984 were given without jurisdiction as the directions had the effect of violating Antulay’s fundamental right under Art. 14 of the Constitution of India. The Court granted him remedy ex debito justitiae. In A. R. Antulay. v. R. S. Nayak and Anr remedy sought by the Writ Petitioner was granted by the Court through a direction given ex debito justitiae which removed the petitioner’s grievance fully. For him it hardly mattered whether his grievance was settled by resorting to a writ or order under Art. 32, or by a decision Ex debito justitiae. Hence this Case did not provide an appropriate occasion for exploring law under the white-heat of the forensic process.

(iii) Antulay’s matter which was referred to a Bench of 7 Judges was on appeal. Mukharji articulates the two questions involved in the appeal in para 19 at p. 1542 of AIR 1988 SC 1531. The terms of Articles 12 or 13, or even 32 were nowhere examined in any of the judgment delivered in the case. The Court adopted the tradition of the British Court by setting aside the impugned order by power ex debito justitiae. It is the procedure which is adopted in appropriate cases in the U.K.: vide Isaacs v. Robertson [1984] 3 All ER 140. Rupa has unfairly emasculated even this doctrine by turning it into a discretionary doctrine of judicial grace terribly constricted, shorn of its wide legitimate dimensions. The point is not being pursued here.

(iv) This Court decided Supreme Court Bar Association v. Union of India and M. S. Ahlwat v. State of Haryana with the full consciousness of Antulay ( and by express implication, Naresh) It noticed nothing therein to decline a remedy under Art 32. This Court noticed the frontiers of actual decision (and emanating ratio ) of Antulay with a precision and insight conspicuously absent in Rupa.”

(c ) Other Cases referred in Rupa [Krishna Swami v. Union of India and others (1992 (4) SCC 605); Mohd. Aslam v. Union of India (1996 (2) SCC 749); Khoday Distilleries Ltd. and another v. Registrar General, Supreme Court of India (1996 (3) SCC 114); Gurbachan Singh and another v. Union of India and another (1996 (3) SCC 117);

Babu Singh Bains and others v. Union of India and others (1996 (6) SCC 565) and

P. Ashokan v. Union of India and another AIR 1988 SC 1531] repeat an “ in curiam” dicta without any application of the forensic perspective, illustrating what C K Allen has observed in these words (Allen, Law in the Making p. 263):

“And yet it is remarkable how sometimes a dictum which is based on no authority, or perhaps on a fallacious interpretation of authority, acquires a spurious importance and becomes inveterate by sheer repetition in judgments and textbooks”[58]

(d) And Rupa itself does not decide the present issue. To say that it decides the present issue is to commit the fallacy of petitio principii or ex nihilo ( nothing comes out of nothing). If a wielder of public power asserts this sort of proposition, it can be done only on the sole authority to which Lord Atkin referred in his famous dissent in Liversidge v Anderson[59]:

“I know of only one authority which might justify the suggested method of construction. ‘When I use a word’ Humpty Dumpty said in rather scornful tone, ‘it means just what I chose to mean, neither more nor less’. ‘The question is,’ said Alice ‘Whether you can make words mean different things’. ‘The question is,’ said Hampty Dumpty, ‘who is to be the master ---that is all.”

The submission aforementioned would be borne our from the Petitioner’s short Critique of Rupa set forth in his Brief on record [ for the sake of convenience enclosed as 0 ‘ A’].

VI. For that this Hon’ble Court has granted remedy under Art. 32 in cases like Supreme Court Bar Association v. Union of India and another (1998 (4) SCC 409), and M. S. Ahlwat v. State of Haryana and another (2000 (1) SCC in 8), and also against the decision of the High Court which violated Art 21 in AG. V. Lachima AIR 1986 SC 467 at 468, proving the point made by this Petitioner.

VII That, hence, the view in the Order, against which this Review is filed, that “ the question has been exhaustively considered by the Constitution Bench in Rupa” is ex facie per incuriam.

VIII. That the view that the ‘decision of the S.C “which has attained finality” cannot “be subjected to Judicial Review under Art. 32 of the Const., at the instance of one of the parties to the decision’ suggests:

(a) that a decision of the Supreme Court cannot be questioned by the parties involved but can be questioned by others who are not parties. But if a view of this sort is adopted, it would evidently be in conflict with Art. 14 of the Constitution of India. Persons aggrieved on account of the breach or non-protection of Fundamental Rights constitutes a common class. The classification contemplated by Art. 14 of the Constitution must have a nexus with the objective of Equality. The classification, that the Hon’ble Court contemplates, is not permissible under Art. 14 of the Constitution. The New Doctrine of Art. 14 is founded on the quintessential logic which is laconically stated by this Hon’ble Court in its profound statement that, “an action that is arbitrary, must necessarily involve negation of equality.[60]” Hence, the Judicial observation is discriminatory, and contrary to Art. 14 of the Constitution of India.

(b) The effect of the judicial observation can be stated in plain English thus; under no circumstances it is conceivable that a D.B. of the Hon’ble Supreme Court would ever go counter to the Fundamental Rights. Every decision of the Hon’ble Court would remain beyond questioning as in every case the issue or non-protection of the Fundamental Right would escape judicial scrutiny as after every decision such a scrutiny would be ruled out by the Doctrine of the Finality of Judicial Order.

IX. For that the decision, against which this Review Petition is moved, is in breach/non-protection of Art. 14 of the Constitution of India for reasons including these:

(a) As the Judgment/order, against which the Review Petition is moved, is unreasonable and in breach of Art. 14 of the Constitution as it is without Jurisdiction as it is in breach of Art. 145(1)(c ) of the Constitution read with Rules in Order XXXV framed in exercise of, and within the parameters of the said Article of the Constitution of India.

(b) As the Judgment/order, against which the Review Petition is moved, is unreasonable and in breach of Art. 14 of he Constitution as it fails to protect the nation from the breach of Natural Justice evident in the decision of the D.B decision.

(c) As the Judgment/order, against which the Review Petition is moved, is unreasonable and in breach of Art. 14 of the Constitution as it fails to protect the nation from a strange miscarriage of Justice and the Rules of Natural Justice resulting from the fact that the core issue was decided by relying on an unworthy book written by an interested person, without juristic qualifications, whilst the matter was subjudice,; and that too, it is felt, as a matter of the private research by the Hon’ble Judges.

(d) As the Judgment/order, against which the Review Petition is moved, is unreasonable and in breach of Art. 14 of he Constitution as it holds the view that whilst those who brought the PIL to the attention of the Court have no remedy because of the Doctrine of the Finality of Order, whereas others can assert such claims by a collateral attack in other proceedings.

XI. For that the Order dated Nov. 27, 2007 (against which this Review Petition is moved) is suffers from many manifest errors as is shown in the tabular analysis of the said Order set forth in para 32 supra.

XII. For that the effect of the decision in the Judgment/order against which this Petition is moved is that it fails to uphold the Constitution by not protecting our Fundamental Rights.

XIII. For that the Order, against which this Review Petition is moved, suffers from apparent and manifest errors on the face of the record; besides there are sufficient reasons for which this Hon’ble Court may now exercise power under Art. 137 of our Constitution in its plenitude.

XIV. For that before this Hon’ble Court’s Order was made this Petitioner couldn’t have raised the question of the Jurisdiction apropos Art 145 of the Constitution, because the Court’s practice is to hear all cases before the Benches of the Judges less than 5. Then two courses are open to the Court: (i) to frame questions and to refer them to the Bench of 5 Judges (as was done in Rupa) for answer; (ii) (where it decides to dismiss the matter ) to refer to the Bench of the 5 Judges, for consideration whether dismissal is justified. In any case the propriety of Jurisdiction is something about which the Court should take a judicial notice. It is the principle to which CIT v. Commonwealth 221 ITR 474 refers when it says: “Even though limitation is not specifically set up as a defence, a barred proceeding has to be dismissed.”

VIII

PRAYERS

51. That under the circumstances aforementioned in this Review Petition, this Petitioner most humbly prays that this Hon’ble Court may be graciously pleased:

(a) to recall the Judgment/order dated Nov. 28, 2007 on the Writ Petition (Civil) No 334 (PIL) of 2005, and to pass an appropriate Order as per the Law and the Constitution as this order is in breach of Art 145 of the Constitution of India read with Order XXXV of the Supreme Court Rules as this Writ Petition has been dismissed by the Bench of 3 Hon’ble Judges when the case raised great questions pertaining of the interpretation of our Constitution which were hitherto not decided: hence, required a consideration rather than dismissal;

(b) to reconsider by way of Review the Judgment/order dated Nov. 28, 2007 on the Writ Petition (Civil) No 334 (PIL) of 2005 for its apparent mistakes, and the factors causing a serious miscarriage of justice;

(c) to refer the matter to a Bench of 5 Hon’ble Judges for decision on the issues involved, or for dismissal of the Writ Petition if the Bench of the 5 Hon’ble Judges agreed to such a suggestion by this Referring Bench, or felt that dismissal of the Petition was fair and just;

(d) to grant a Remedy against the decision questioned in the Writ Petition also on the maxim of Ubi jus ibi remedium so as to restore the legitimate frontiers to the doctrine of ex debito justitiae so that the violations of Fundamental Rights can also be remedied; [As the Constitution makes the fundamental right inhere in citizens, the State (and its organs including Judiciary) are subject to the correlative Duty.[61]]

(d) to pass such order/orders (in terms of the plenitude of the constitutional powers) which the Hon’ble Court considers fit and proper in the interest of justice pro bono publico;

(e) to hear this Review Petition in the open court as the Petitioner has challenged the Hon’ble Court’ jurisdiction bringing about for consideration some vital issues pertaining the Hon’ble Court’s jurisdiction in the context of the Art 145 of the Constitution of India [ this issue can crop up only when the Hon’ble Court has passed the order against which the Review Petition is filed];

(f) to permit this Petitioner to raise such other grounds, with the leave of this Hon’ble Court, which he may deem his duty to raise in course of the proceedings before the Court for the proper conduct of the matter?

Drawn-up and filed by
New Delhi, Jan. 3, 2008 ShivaKant Jha
A Petitioner-in-person

[1] [1984] 3 All ER 935 H.L

[2] All ER Annual Review 1984 Pp. 5

[3] (1977) 1 W.L.R. 487; [1977] 2 ALL ER 566 at 590

[4] at p. 7

[5] The end of the Conclusion of Herbert Harcuse, One Dimensional Man [ Sphere Books Ltd W.C 1 (1964)]

[6] [1986] 2 All ER H.L. 334 Lord Hailsham of St. Marylebone L C ,, lord Elwyn-Jones, Lord Scarman, , Lord Bridge of Harwich and Lord Mackay of Clashfern.

[7] Wade, Administrative Law 7^th ed. p. 38

[8] “No appeal shall lie….(d) from the decision of the High Court or any judge thereof where it is provided by any Act that the decision of any court or judge, the jurisdiction of which or whom is now vested in High Court, is final.”’

[9] Basu, Commentry on the Constitution of India p.316 discussing Art 12.

[10] [1986] 2 All ER H.L. 334 Lord Hailsham of St. Marylebone L C ,, lord Elwyn-Jones, Lord Scarman, , Lord Bridge of Harwich and Lord Mackay of Clashfern.

[11] (1977) 1 W.L.R. 487: [1977] 2 All ER 720 C.A.

[12] ibid p.508

[13]. De Smith, Judicial Review of Administrative Action 4th ed. p. 110-111.

[14]. Ibid p. 113.

[15] H M Seervai, Constitutional Law of India 4^th ed. P. 159

[16] ‘Whenever law giveth any thing, it gives a Remedy for the same.’Tomlins Law Dict. Aiyar, Law Lexicon.

[17] [17] H M Seervai, P. 391

[18] Vide Hohfeld’s table of jural relations. Dias, Jurisprudence p. 24

[19] When power gets coupled with duty : vide Julius v. Bishop of Oxford (1880)5 App. Cas.214,223 Quoted by H. M Seervai , Constitutional Law of India, VOL II 4^TH ed. p. 1494.

[20] CCSU v. Minister for the Civil Service [1984] 3 All ER 935 at 955 H.

[21] Art. XIII

(1) Every citizen has the fundamental right….to move the courts within the Union for the issue a writ of right.

(2) The following are the writs of right, viz.,

(a) The writ of person (habeas corpus) to secure the release of any person in the territories of the Union from unlawful or unjustifiable deprivation of the right of personal liberty;

(b)The writ of enforcement (mandamus) to secure the performance of any specific act by a unit, an officer, a corporation, in discharge of a definite public duty, obligation or requirement with which he is specifically charged by the Constitution or any other law for the time being:

Provided that no writ shall be issued against the President or the Head of any State or any Minister of the Union or a State personally or against any court of law;

©The writ of prohibition in prohibiting any court other than the Supreme Court, or a person or body vested with judicial functions from continuing proceedings in contravention of this Constitution or in excess of jurisdiction vested in it by law;

(d) The writ of direction (certiorari) directing any judge other than a judge of the Supreme Court or any person or body vested with judicial functions to transmit the record of proceedings pending before him or it and involving a question of a right or duty arising under or in respect of the Constitution or any question of law arising on an interpretation thereof for the purpose of quashing the proceeding or referring them to the appropriate tribunal.

(3)….

(4) A final appeal shall lie to the Supreme Court from any decision given by a court in proceedings initiated by the writs.

(5)…

(6)….

(7) The Union Legislature shall prescribe by law the jurisdiction of courts, procedure, and all other incidental matters in respect of the constitutional remedies under this article

Vide B. Shiva Rao, The Framing of India’s Constitution Vol II pp79-80

[22] “In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution. ….The directions have been issued without observing the principle of audi alteram partem.” Per Sabyasachi Mukharji J. (for himself, G. L. Oza and S. Natarajan JJ. Majority view) .

[23] The book was published in 2002 under ISBN 90-411-9852-0 Copy Righted 2002. The Writ Petitions [PIL] No.5646/2000 and No.2802/2000 were being pursued before the Hon’ble Delhi High Court during the period while the book was being written. The book was not referred before the Hon’ble Delhi High Court. In fact, it was completed when the Special Leave Petition(C) Nos.22521-22522 of 2002 were under consideration before the Hon’ble Supreme Court.

[24] The High Court in its Judgment observed, per S.B. Sinha C. J. (as his Lordship then was): “The core issue is as to what should be done when on investigation it is found that the assessee is a resident of a third country having only paper existence in Mauritius without any economic impact with a view to take advantage of the double taxation avoidance scheme. No attempt has been made to answer the question on behalf of the Central Govt. inasmuch as it merely stated in the counter that power of the assessing authority under section 4(3) of the treaty has not been taken away By reason of the impugned circular even such a power has been taken away inasmuch as a certificate of residence has been made conclusive. In any event, having regard to the facts and circumstances of the case, only by production of a residential certificate, a assessee cannot be held to be entitled to take benefit of the treaty although it neither pays income tax in India nor in Mauritius. Such an action would be ultra vires the Income tax Act.”

[25] During 2001 he was engaged as an advisor on the plans for development of the global business activities in Mauritius[http://www.Mauritius-finance.com]. He became the First Academic Director in an institute under/associated with the Financial Services Promotion Agency in Mauritius when the FSPA decided to run a course on international tax planning in August 2003. International tax planning, it is admitted, uses knowledge of international taxation to develop, what the advisors of the Offshore companies say, efficient tax structures on cross-boarder transactions which involves Treaty Shopping. The Financial Services Promotion Agency (FSPA) IS A wing of Mauritius administration. Roy Rohotgi was appointed as the first Academic Director with plenary powers. The reviewer of Roy Rohatgi’s “Basic International Taxation ” published in 2002 Kluwer Law International, ISBN 9041198520, 704pp very perceptively observes:

“With this in mind, Rohatgi is at pains to point out that any information he gives should not be used as the basis for providing advice without further consultation and research. The point is well made and taken in the Preface and Chapter One. Thereafter the notes to that effect at the beginning of each chapter are largely superfluous. The reader simply needs to review the chapter of recent developments to be aware of the avalanche of continuous change that would make it dangerous in the extreme to rely solely on a textbook such as this to provide specific technical advice to a client.”

[26] Lord Bridge L.J. in Goldsmith v. Perrings Ltd

[27] (9^th ed ) at p. 43

[28] (1969) 2 Ch. 10 at pp. 16-17

[29] Ajaya Hasia v. Khalid Mujib AIR 1981 SC 487 499; also in Maneka Gandhi v. Union AIR 1978 SC 555 and R.D. Shetty v. Airport Authority AIR 1979 SC 1628

[30] 154 ITR, 148 SC

[31] AIR 1989 SC 465

[32] AIR 1988 SC 1531

[33] 357 U.S 549, 558 (1958)

[34] (1977) 1 W.L.R. 487; [1977] 2 ALL ER 566 at 590

[35] “Let us assume that two states have entered into a bilateral beneficial treaty securing certain benefits and advantages for their nationals only. There is no express or implied provision or suggestion to extend the benefits arising out of such treaty to the nationals of third States. In reality, the nationals of the third states pretending to be national entities of one of the contracting states claim such benefits. Objections are raised to such claims. If one of the Contracting States wants to condone this apparent illegal or unethical practice, how should it go about it. There are two courses open. One either the two states by consent amend the terms of the treaty and provide for by an express term in the treaty and then amend its laws, if the said amendments have financial implications affecting its revenues. But if the executive without amending the laws gives a clarification of the provision of the treaty and the law and by executive fiat condones the manifestly illegal practice and does what was not initially intended by the treaty, it would certainly be a fraud on the Constitution and a colourable exercise of power. This is clearly an attempt to do indirectly what it could not do directly.”

Prof. (Dr) M.L. 9 Ph. D. former Professor & Dean of the University of Calcutta, now Professor & Vice President, Amity Law School, New Delhi

[36] That this Petitioner submits that much light on the points under consideration is shed by

Reg. V. Brown[36]. “Lord Temleman rejected the contention that only Parliament could decide the question by observing that “…..the question must at this stage be decided by this House in its judicial capacity in order to determine whether the convictions of the appellants should be upheld or quashed.” It is submitted that Lord Templeman was clearly right, because no court can say that it will not decide the question actually raised before it but leave to Parliament to deal with the question raised.’[36] And a set of perspective comments on this decision has thus been made by H M Seervai:

“It is submitted that Lord Mustill and Lord Slynn did not realize the consequence of their statement that the question whether sado-masochists’ homosexual activities should be treated as a crime must be left to parliament to decide. If it is to be left to Parliament, it can only be on the basis that Parliament is free to decide whether it should be made a crime or not. But in realty, there is no free choice. It is absurd even to suggest that the British parliament would not treat as crimes these degrading bestial and de-humanizing activities, which are mala in se.This is altogether apart from the fact that while purporting to leave the question to Parliament to decide whether sado-masochistic activities were criminal or not criminal. Lord Mustill and Lord Slynn, far from leaving the decision to Parliament, by allowing the appeal, decided the question in favour of the appellants that these activities were not criminal. This is because that the accused had pleaded guilty after trial judge gave his ruling that consent was not a defence to their activity. This had been confirmed by the Court of Appeal had confirmed this and leave to appeal to the House of Lords was given. In other words, the observation of the dissenting Law Lords that the court was not competent to decide the question raised bfore it fails, because they did in fact decide the question. In view of Lord Mustill’s, and Lord Slynn’s theory that Parliament, and not the courts should decide whether the appellants’ activities were lawful of unlawful, the only order which the two Law Lords could pass consistently with their theory would be: “We pass no order on this appeal because it is for Parliament and not for the House of Lords to decide whether or not the appellants’ activities were lawful or criminal.” But they decided that the appellants’ activities were not unlawful---a reductio ad absurdum of their theory.”

[37] H W R Wade, after examining the the dicta by Lord Denman in Bolton, and by Lord Sumner in Nat Bell comments in his Administrative Law 7^th ED p. 299::

“In their own time and context these statements were unexceptionable; they expressed the traditional doctrine that so long as jurisdiction existed, mere error as such would not destroy it. But it does not in the least follow that no sort of error made in the course of the proceedings can affect jurisdiction. Some questions may arise which the tribunal is incompetent to determine; or some point may be decided in bad faith or in breach of natural justice or on irrelevant grounds, or unreasonably, all of which faults go to jurisdiction and render the proceeding a nullity.”

This comment was endorsed by Lord Mustill in Neill v. North Antrim Magistrates’ Court. [1992] 1 WLR 1220 (HL).

[38] O. Hood Phillips’ Constitutional and Administrative Law 7^th ed 371

[39] Holdsworth (History of English Law Vol. 6 page 239)

[40] 3 Howell’s State Trials 45 (1627)

[41] Bernard Schwartz, Some Makers of American Law Tagore Law Lectures p. 37

[42] It is this line of thinking which made Prof. Holdsworth to recognize the theoretical impossibility of a judgment of a superior Court being a nullity, even if it had acted coram-non-judice, as “there is no legal tribunal to enforce that liability.” History of English Law Vol. 6 page 239

[43] --Hood Phillips’ Constitutional and Adminis. Law p.371; - Holdsworth, Hist. of English Law Vol 6 p. 238; --for Indian tradition: Valmikiya Ramayan WP p. para

[44] De Smith, Judicial Review of Administrative Action 4^th ed p. 113.

[45] Wade, Administrative Law 7^TH ed. p.299

[46] Basu, Commentry A/1 (1996) p. 269; Seervai, Const. Law pp 724-5 para10.47; Bridges v. California (1941) 314 US 252 Headnote 4]

[47]. AIR 1967 SC 1, 38.

[48]. Seervai, Constitutional Law Vol I p. 394.

[49] A.1967 SC 1

[50] [1977] 2 All ER 566 at 590 CA

[51] ibid p.508

[52]

[53] Corsi and Lippman,Constitutional Law: A Political Science Casebook p.5].

[54] . In Marbury, the Chief Justice Marshall said:

“From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose on them, if they were to be used as the instrument, and the knowing instruments, for violating what they swear to support!”… Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If such were the real state of things, this is worse than solemn mockery. To prescribe, or to take oath, becomes equally a crime.”

[55] Sir Thomas Smith said on Parliament in 1565 :

“And, to be short, all that ever the people of Rome might do either in Centuratis comitiis or tributes, the same may be done by Parliament of England which representeth and hath thepower of the whole realm, both the head and body. For every Englishman is intended to be there present, either in person or by procuration and attorneys , of what preeminence, state, dignity, or quality soever he be, from the prince ( be he king or queen) to the lowest person in England. And the consent of the Parliament is taken to be every man’s consent” [quoted from De Republica Anglorum 48-9 in G. R. Elton, The Tudor Constitution p. 235].

[56]. D.D.Basu, Commentry on the Constitution of India Vol A/1.

[57] “ (i)In fact the majority judgment and the concurring judgments, expressly limit their decision to the violation of fundamental rights under Art 19(1) [vide para 16 at p. 7; para 18 at p. 8 of AIR 1967 SC 1]. As the Court held that Gowda’s fundamental right under Art 19(1) had not been breached, there was no occasion to consider the consequent and subsequent question whether it is amenable to jurisdiction of this Court under Art 32 of the Constitution. “The majority view that a writ did not lie, is clearly obiter because the point did not call for decision on the finding that fundamental rights were not violated. But apart from being obiter, these observations are unfortunate, because the majority judgment and concurring judgments expressly confined themselves to the violation of Art 19 and did not consider whether it could never have been intended that fundamental rights directed to judiciary could be set at naught by the judiciary and the party affected by such violation should be left to the expensive procedure and hazard of successive appeals or driven to appeal to the discretionary power of the Supreme Court under Art 136.”[ H.M. Seervai, Const Law4^th ed p. 396]

(ii) It would be unwise to think that Naresh decided what this Court in Rupa thinks it decided. The decision in Naresh did not even refer to Articles 12 and 13 of the Constitution, nor it examined the terms of Art 32. The observations are at best casual dicta. This Court itself observed in Naresh: “ Obiter observations and discussion of problems not directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them: but this requirement becomes almost compulsive when the Court is dealing with constitutional matters.” [para 16 at p. 7].

In Ranchhoddas Atmaram v Union this Court held that the observations in three of its decisions, were not binding because :the question was never required to be decided in any of the cases and could not, therefore have been, or be treated as decided by this Court.” AIR 1961 SC 935 at 937 para 10.

(iii) It is submitted that unless the High Courts or Division Benches of this Court were clearly excluded from the writ jurisdiction of the Supreme Court, the provisions of Art. 14, 20, 21, and 22 show that an appropriate writ would be available against the action of a judge who violated the rights contained in these Articles.

(iv) This Court in Naresh was misled by a passage in Halsbury (Vol. 11 pp 129-30) to say erroneously:

“The ultimate proposition is set out in the terms: "Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction". These observations would indicate that in England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari.”

Unfortunately the attention of this Court was not drawn by any one of the eminent counsels to the Supplement to Halsbury (1965) which showed that the statement quoted above was not correct and that a writ to quash the decision of an inferior court did lie, vide H M Seervai, Const Law pp 396-97. It is regrettable that the statement made as early as Jan. 1963 in Vol. 3 (p.519) of the Fourth Edition of Dr. Basu’s Commentry on the Const. , citing two decisions of 1959-60, was not brought to the notice of the Court in Naresh’s Case.

(v) In Naresh, Gajendragadkar CJI formulated a constitutionally untenable proposition, though, of course, obiter:

“But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art. 19 (1).What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more.

This view courted the following comment from Dr D. D. Basu:

“ But, apart from the fact that the exclusion of a judicial decision emasculates the concept of ‘State action’ as embodied in Art 12, it is not supportable either on juristic principles or on the very text of Art 12 itself; and the minority judgment of Hidayatullah, J. is preferable.”

The Commentator analysed the proposition by Gajendragadkar CJI and set forth detailed

reasons to show that the judicial view is unsound [ Basu, Commentry /1 (1996) pp 259-261.This led the learned Author to conclude at p. 262:

“ Once we reach the conclusion that a judicial decision which contravenes a fundamental right is without jurisdiction and void, there would remain no other reason why such a void decision of an inferior court Court cannot be quashed by a collateral proceeding under Art 32, apart from appeal”

(vi) It is not relevant to consider whether the court is a court of record or not, because the county courts in England are by statute constituted courts of record Halsbury Vol 9, p 346 and fn(i). The courts of record are those whose acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony, and which have power to fine or imprison for contempt. (Black’s Law Dict.;3 Bl. Comm. 24). The concept has no relevance in the context of the issue under consideration.

(vii) Nowhere this Court in Naresh articulated an appropriate decision for which Rupa considers it an authority. The question to ask is whether the High Courts are inferior courts vis-vis the Supreme Court for the purposes of issuing writs of certiorari and other appropriate writs under Art 32. Dean Pound. Said: “ Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude.” --H M Seervai, Const Law 4^th ed p 398 para 7.114

(viii)The reference made in the majority judgment to Daryao v UP which applied the doctrine of res judicata to petitions under Art 32 is based on considerations much different from those relevant to the question under consideration.

-- H M Seervai, Const Law 4^th ed pp. 398-399 para 7.115

(ix) In Naresh, Mr. Setalvad has conceded that if a Court of competent jurisdiction makes an order in a proceeding before it, and the order is inter partes, its validity cannot be challenged by invoking the jurisdiction of this Court under Art 32.[57] Like Rupa, this issue in Naresh had been decided on the counsel’s concession, hence is exposed to same criticism which has been made vide para 10 supra.”

[58] Allen, Law in the Making p. 263

[59] (1942) A.C. 206,at 245

[60] Ajaya Hasia v. Khalid Mujib AIR 1981 SC 487 499; also in Maneka Gandhi v. Union AIR 1978 SC 555 and R.D. Shetty v. Airport Authority AIR 1979 SC 1628

[61] Vide Hohfeld’s table of jural relations. Dias, Jurisprudence p. 24

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