THE SUPREME COURT OF INDIA

THE SUPREME COURT OF INDIA

(ORIGINAL CIVIL WRIT JURISDICTION)

Under Art 32 of the Constitution of India

Civil Writ Petition No                 of 2008 [ PIL]

 

 

In the matter of:

SHIVA KANT JHA

A-320 SFS, Sarita Vihar

New Delhi-110 044                                             …. Petitioner-in-person

                                                       V.

1.         UNION OF INDIA

Through The Secretary (Revenue)

North Block, New Delhi

Referendum

 

 2.        Central Board of Direct Taxes

            Through its Chairman

North Block, New Delhi

                                                                                        …. Respondents

 

WRIT PETITION UNDER ART. 32 OF THE CONSTITUTION OF INDIA

(Read with Art 142 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 Writ Petition (PIL):

MOST RESPECTFULLY SHEWETH:

1. That this Writ Petition under Article 32 of the Constitution of India is being filed against the Order of this Hon’ble Court passed on Nov. 28, 2007 [coram: Hon’ble Chief Justice, Hon’ble  Mr. Justice R.V. Raveendran, and Hon’ble Mr. Justice J.M. Panchal]  in the Writ Petition © No. 334 of 2005 (vide Annex ‘A’ at p. 38 ), and the dismissal of the Review Petition No. 143 of 2007 in the said Writ Petition  [ by the aforesaid Hon’ble Judges]  on Feb. 27, 2008  in the Chamber (Annex ‘B at p. 40), after dismissing the Petition Praying an  Open Court Hearing (Ostis apertis) amply justified under the facts and circumstance of the case (vide Annex ‘C’  being the said Review Petition  at p. 41-86 ).

 

2. That as many of the points going to be raised in this Writ Petition have already been developed and examined comprehensively in the Review Petition and the Application for Open Court Hearing,  it is considered appropriate to refer to them to avoid repetition and verbosity, and also to  annex that Review Petition for the full picture of the litigious points.

 

I

Points Summarized at the Outset

3.That for a better comprehension of the issues presented through this Writ Petition, the following propositions, to be developed later, are asserted at the threshold:

                              (i)   For that the impugned Order [ Annex ‘A’], and the Order dated Nov. 28, 2007, are  without jurisdiction as the former sustains what the latter committed. a patent  breach of the mandatory provisions of Art 145 of the Constitution read with Rule Order XXXV of the Supreme Court Rules ; and hence both such orders should be treated non est  under the eyes of law: and thus they  become, ipso jure,  arbitrary and unreasonable in a measure enough to offend Art 14 of the Constitution of India (as expounded in  Ajay Hasia v. Khalid Mujib Sehravardi[1]

                           (ii)  For that  the impugned Order, against which the said Review Petition had been filed,  has the effect of causing/creating unfair and unwarranted discrimination in breach of Art 14 of the Constitution of India (a expounded in  Dalmia’s Case[2]).

(i)   For that  the impugned Order offends Arts. 14 and 19 of the Constitution, as this Hon’ble Court erred in disposing of the Review Petition without granting a hearing  expressly sought by an Application on Grounds one of which was that, as the Review questioned the very Jurisdiction of the Hon’ble Court, the Review Petitioner deserved to be granted a hearing, more so when the Hon’ble Court was considering a new plea going to the very root of this Hon’ble Court’s jurisdiction which issue  was  new; and most vital. [ Annex ‘C’  at p.  86-87      ].

(ii)     For that the impugned Orders were  in breach of the Rules of Natural Justice, which amounts, ipso jure,  as a breach of Art. 14 also.

(iii)          For that  our Constitution has a structured protocol under which all the organs (to say the obvious, Judiciary included) are the creatures of our Constitution with delimited powers, and discharge specific constitutional duties the transgression whereof would be ultra vires the very Basic Structure of our Constitution.

(iv)          For that this Hon’ble Court is abdicating its duty to uphold the Constitution which creates it and mandates it by holding the view in the impugned Order that its decision is above the Constitution ( impliedly suggesting, even if ignores/contravenes/ overrides our Constitution).

(v)     For that  this Hon’ble Court made an apparent mistake of fact, which should have been corrected ex debito justitio itself, by relying on the decision in Rupa’s Case when the point involved in the Writ Petition, against which  the said Review Petition was moved, was not at all even under contemplation/consideration in Rupa’s Case. It is submitted that this Hon’ble Court committed the fallacy of  creatio ex nihiloo [ creation from  nothing ]

(vi)          For that  Rupa deserves to be re-considered and over-ruled as it is in breach of our Fundamental Rights, and goes counter to Art. 32 of the Constitution: and thus by express implication negates one of the most precious features pf our Constitution’s Basic Features.

 

II

FACTS

Prelude

4.  That this humble Petitioner is aggrieved with the aforementioned Order (dated Nov. 28, 2007) in the Writ Petition No. 334 of 2005 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. The provision of Art 145, in breach whereof the impugned Order was passed, was binding on the Bench  ( Harish Uppal v. UoI AIR 2003 SC 739: “Such a rule would be valid and  binding.”). As the Order dated Feb. 27, 2008   dismisses the Review Petition   No. 143 of 2007, this Order  too is questioned on the ground of causing a  breach of the mandatory provisions of the Constitution of India.

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

(a) This point deserves to be borne in mind that our  Constitution does not foreclose Art 32 Remedy because of Review or Curative [vide pp.    in the Annex ‘C’] are disposed of adversely in a given Case. [This aspect of the matter is examined in the Review Petition  .

(b)   The  Review Petition involved great issues  of the  constitutional  law, till now res

    integra.   The Writ Petition which was dismissed by the impugned Order raised, inter alia, the following 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.

 

    (c ) 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.

6. 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.”

 

7. That it had been submitted in the said 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[3]; Isaacs v Robertson [1984] 3 All ER 140); and such Justice-driven proposition as what Lord Bridge L.J. in Goldsmith v. Sperrings Ltd[4] 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.”[5]

     (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[6]: “…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.”[7]

 (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.

(i)             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.    

                                                                III        

THE PROVINCE OF ART  32:

 

8. 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.[8] The Constitution has given us guaranteed rights: as a matter of inevitable corollary, it grants an effective and guaranteed rights [9] 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’[10]. As the Constitution makes the fundamental right inhere in citizens, the State (and its organs including Judiciary) are subject to the correlative Duty.[11] 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.[12] ‘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”[13].

 

 9. 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[14]  [ 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.

10.   That in the Order dated 28. 11, 2007, against which the aforesaid  Review Petition was  moved, this    Hon’ble Court had 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 14TH 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 4th 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  5th 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[15] (1988) 2 SCC602” Prof.  V.N.Shukla, Constitution of India, (10th 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.

11. The said Writ Petition had been filed against the Judgment of this Hon’ble Court  against the  Judgment, dated October 7, 2003, of the Division Bench of this Hon’ble Court (Coram: Hon’ble Justice Ruma Pal and Hon’ble Justice  B.N. Srikrishna, JJ. )    which had  allowed the Civil Appeal Nos 8161-62 of 2003 arising out of  SLP ( C ) Nos. 20192-20193 of 2002 having the effect of setting aside the judgment and order of the Hon’ble Delhi High Court  which had allowed   Civil Writ Petition (PIL) No.  5646/2000 and Civil Writ Petition No. 2802/2000 having the effect of quashing the Circular No 789 dated 13th April 2000 issued by the Central Board of Direct Taxes in the light of the  law declared by the Hon’ble High Court on a set of points of great constitutional importance, and public interest. But the aforesaid decision of the Division Bench was questioned through the Writ Petition (C ) No. 334 of 2005 [PIL] dismissed by the aforesaid Order of the D.B. of the 3 Hon’ble Judges passed on passed on Nov. 28, 2007, which stands questioned through this Writ Petition. This also may be mentioned that the said Review Petition brought to the notices of the Hon’ble Judges some instances of gross constitutional solecism which unfortunately had crept in the Judgment so questioned.

12. That, on the said  Writ Petition No. 334 (PIL)  of 2005, the only  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.

        13.  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.

 

 14.  That to hold in the Judgment that question (a)  was “ exhaustively considered by the Constitution Bench of this Court in Rupa Hurra” is a manifest  mistake by the Hon’ble Court.         In Rupa, instead of answering the referred question, this Hon’ble Court modified the referred question  in  a manner which deflected this Hon’ble Court from the straight-line of enquiry (whether Remedy under Art. 32 could be granted in case a judicial order violates the Fundamental Rights, or other mandatory constitutional limitations, oe even the Basic Feature of our Constitution), by reframing the referred question in a manner which deprived the referred question the core focus which it deserved. 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.

      15. That it is  humbly submitted that certain amazing things happened in the litigious process in Rupa’s Case:

                        (i) It is not clear why the referred question was reframed when it had the effect of blurring the central focus of the referred question; and it is no less amazing why the counsels maintained silence on this point.

                     (ii) The indifference of the learned counsels stand explained only by the fact that once they got some remedy it hardly mattered to the worldly-wise who the great constitutional principle fared.

 (iii) It is amazing how dozens of eminent counsels indulged in ‘Concession’ when the point under consideration was momentous.[16]  A point made out on ‘Concession’ cannot be considered law declared.[17]

                      (iv)  Can a decision of the sort mentioned above be considered complying with the principle to which Salmond refers when he says: “For the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides…”. (fn. 17). Or to quote Brandeis: “For a judge rarely performs his functions adequately unless the case before him is adequately argued.”

             (v)  At best the observations on the propriety of the claim to Remedy under Art 32  in Rupa’s Case are mere obiter dicta. In Ranchhoddas Atmaram v. Union[18] this Hon’ble Court held that the observations in three of its decisions were not binding as “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.”

                (vi)  Much reliance was placed on the observation in Naresh [AIR.1967SC ] without appreciating that those were themselves mere obiter,  that too made on concession[19]

 

IV

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

  15.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[20];

          (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[21].

 

16. That  Art 145 (3) requires a reference to a Bench of 5 Hon’ble Judges in case the issue raised involved  “a substantial  question of law as to the interpretation  of this Constitution”.  The  aforesaid Writ Petition © No. 334 of 2005  did raise such questions.  The concept of “Substantial Question” had been authoritatively explained by this Hon’ble Court in Sir Chunilal v. Mehta & Sons Ltd  (AIR 1962 SC 1314) thus:

       “The proper test for determining  whether a question of law ….is substantial would  …be whether it is of general public importance or whether it directly and substantially  affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Frderal Court or is not free from from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is  a mere question of applying  these principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”

17. That the said Writ Petition © No. 334 of 2005, which was dismissed by the impugned Order  passed on Nov. 28, 2007,  did raise ‘Substantial Questions as to the interpretation of our Constitution:

              (a)  As the constitutional propriety of the grant of Remedy under Art 32 of the Constitution had never been settled till this moment. Casual or obiter observations, totally irrelevant for the actual decisions,  do not decide, hence they settle nothing within the meaning of the word ‘settle’ used by this Hon’ble Court in the para quoted above.

              (b)  As Rupa’s Case had neither decided nor settled  the point raised in the aforesaid Writ Petition, the point raised was wholly res integra, and, thus, constituted a ‘Substantial Question’.

            ©  After analyzing all the relevant decisions, and taking into account all relevant points, our most distinguished 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, Commentry 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 17TH 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 4th 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  5th 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, (10th ed. at p. 26.)

 

The observation that “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.”  has been made in V.G Ramchandran in his Law of Writs  5th ed pp.47- 56 which had been revised by Justice  C.K. Thakker, Judge of the High Court of Gujarat [ as his Lordship, now on the Bench of the Hon’ble Supreme Court, then was ].

18. That this humble Petitioner most humbly submits that he would be failing in his duty as a citizen not to question  such things as these done in the Judgment which was questioned through the said Writ Petition © No. 334 of 2005: [ the points being mentioned are merely illustrative to highlight the fact even they involved Substantial Question of constitutional interpretation]:

 

           (i) 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].

           (ii) The 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[24]  by dubbing it a “hiccup” and “a temporary turbulence” (vide W.P. 110-117: p.b. 165-172), and by arbitrarily ignoring with ridicule the Constitution Bench Decision.

             (iii) That the Judgment which had been questioned through the aforesaid Writ Petition © No. 334 of 2005, failed to undo a grave Fraud on our Constitution[25] to which the Hon’ble Delhi High Court had referred in 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.”

                        AND over all the years thereafter this country is looted by fraudsters, money-launderers, tricksters, criminals of all sorts with our Executive Government as a pathetic onlooker, if not a participis criminis out and out [ raising a most agonizing question: Quis custodiet ipsos custodes?  a Latin phrase from the Roman poet Juvenal:  "Who will guard the guards?" or  "Who shall watch the watchers themselves?"].

         

19. That the point is whether this humble Petitioner is reasonable in his view that the said Writ Petition raised a Substantial Question’ pertaining to the interpretation of our Constitution. This Petitioner must leave this most humbly to the Hon’ble Judges deciding this Writ Petition as they,  undoubtedly, constitute the anthropomorphic concept of Justice Herself.

V

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

 

20. That a careful reading of the Order dated Nov. 28, 2007 passed by the Division Bench of Three Hon’ble Judges (against which the aforesaid Review Petition had been filed), drove this Petitioner to a view that serious manifest errors had crept in the said order causing a grave miscarriage of justice in the  PIL of greatest constitutional importance. This made this Petitioner to mention the following in the said Review Petition to show how the impugned Order Nov. 28, 2007  was  apparently incorrect. To quote:

”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.

S.No

Core Observations in the Judgment  against which is this Petition

Petitioner’s comments    

Vide para/paras in this Petition

1.

Petitioner restricted the prayer to a re-look into Rupa

The Petition sought remedy against the impugned  Judgment. Rupa came in for criticism on account of its per incuriam dicta to the effect that the remedy under Article 32 could not be provided against the decision of the Superior Courts. Assuming  arguendo that this proposition is not revised, an alternative plea was advanced that  Rupa was wrong on the further count that it drew the frontiers of the doctrine of ex debito justitae very unreasonably narrow by going against the established jurisprudence the Anglo-Indian Jurisprudence. The Court had per its order segregated the first point for deliberation with the assistance of the amici curiae. Nov 27, 2007 was  a day for hearing one of the two assertions against Rupa.  In disposing of the whole case even without considering the alternative plea by treating the Writ Petition as a Petition simplicitor  invoking the inherent power of the Court to restore the doctrine of ex debito justiae to its rightful juristic status so that the breach of the Fundamental Rights can be corrected even under this doctrine.

Para 5 supra

2.

The question  has been exhaustively considered by the C.B. in Rupa

The statement is per incuriam as did not decide this issue even indirectly. The unconsidered obiter dicta were on the concession of the counsels of both sides. [See Annex    ‘A’.]

Annex ‘A’

 And para 31 supra

3.

The decision of the S.C can be re-viewed as pointed out in Rupa

It is a trite legal proposition. When a Judgment  is overruled, its precedent value alone is destroyed, without affecting the binding force of the decision inter partes. This Petitioner contended that the Judgment inter partes itself must go if it goes against the Fundamental Rights. Whether this Petitioner has made out such a case, on facts,  is a different issue turning on the merits of his case.

 

4.

The decision can also be re-viewed by a larger Bench.

This is the normal judicial decorum, and is  a rule of law. But in Azadi Bachao, gross indiscretion was committed by departing from the Constitution Bench decision inflicting on it  vituperative. Thus the impugned decision was made without Jurisdiction. What  makes the decision of the larger Bench binding is clearly a rule of law, not a rule practice.[

 A. R. Antulay AIR 1988 SC 1531 & Triveniben v. State of Gujarat AIR 1989 SC 465]

 

5.

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.”

This proposition is right so long a decision does not go  against the Fundamental Rights. To hold otherwise is to turn indifferent to what is the very ‘conscience of the Constitution’. The view of Lord Denman in Rex.v. Boltan (1841) 1 Q B 66 at 74,  which is the conventional justification for this proposition, does not survive to the extent it goes counter to our constitutional provisions and values. In fact it has been rejected in the U.K itself.[26]

Para 33-

infra

6.

Writ Petition dismissed.

The Writ Petition couldn’t have been dismissed by a Bench of 3 Hon’ble Judges. They could have heard the matter, and could have referred to the Bench of 5 Judges for answer [as they have done I so in many other cases]. If they felt that the case was to be dismissed, the only course open to them was to refer the matter to the Bench of 5 Hon’ble Judges.”

 

7.

 

 

 

8

 

 

 

 

 

    21. That the  impugned  Decision of the S.C, holding that “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” was questioned in the Review Petition under the a suggestive heading “ISHVAROHAM: OUR CONSTITUTION DOES NOT RECOGNIZE IT: The Finality of a Judicial Order ought to yield to the Fundamental Rights”. The reference to ISHVAROHAM  was  to the Bhagavad-Gita which considers such assertions ‘demonic’. Our Constitution permits no organ it created to ever say that it is the Supreme’ (The Bhagavad-Gita Chap. XVI. 14). Even the Press reacted: the effect of the judicial observations in the impugned order was summarized in the heading of an article published in The Hindustan Times on Nov. 28, 2007 under a suggestive caption: “Verdict higher than  fundamental right”.

     21A. That  the view of this Hon’ble Court is open to serious criticism on other Grounds too:

               This Hon’ble Court may assert that in inter partes situation its so-called final order is not open to criticism even if goes against a mandatory provision of the Constitution. But will it be able to say so if its decision goes against the obligations under the Uruguay Round Final Act ( well-known as the WTO Treaty)? The clear answer is: NO. Brief reasons are the following:

                                (i) It is a settled principle under international law is that all the organs of the state , including judiciary, are bound  to fulfill the state’s international obligations.[27]

                (ii)  Article XVI (4) of the WTO Treaty  has the effect of making the WTO the highest legislative and judicial body. This Article says:

                “ Each member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the Annexed Agreements.”

                 David Korten, after describing the WTO as “the World’s Highest Judicial and Legislative Body”, aptly says[28]:

                                 “A key provision in some 2000 pages of the GATT agreement creating the WTO is buried in paragraph 4 of Art XVI……The ‘annexed Agreements’ include all the multilateral agreements relating to trade in goods and services and intellectual property rights. Once these agreements are ratified by the world’s legislative bodies, any member country can challenge, through the WTO, any law of another country that believes deprives it of benefits it expected to receive from the new trade rules”

                        Our Parliament and Judiciary are now placed under a peremptory command to conform its laws to the WTO obligations. And this unthinkable has happened under the executive act done  under an Opaque System.  And even this Hon’ble Court, as an organ of the State, is bound to “ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the Annexed Agreements”.

 Is our Constitution worse than that Treaty done by the Executive Government under an opaque system?

 

VI

           Additional Argument submitted under ORDER XL (3) of the Supreme Court Rules invoked Art 14 of our Constitution

22. This Petitioner has filed under  ORDER XL (3) of the Supreme Court Rules in the Review Petition  statating that the impugned  Order dated Nov. 28, 2007 had dismissed the Writ Petition  on the  principal ground  once a decision in inter partes situation becomes final after the disposal of the Review Petition and the Curative Petition, no  Remedy under Art. 32 of the Constitution could  be granted in view of the Finality of such an Order. The Hon’ble Court had observed in its Order:

                            “Petitioner argued that all final decisions  of this Court are subject to the remedy  available under Article 32 of the Constitution. 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 the 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 (supra)….. But we do not accept the submission of the petitioner, that the decision of this Court  which has attained finality could be subjected to judicial review under Article 32 of the Constitution, at the instance of  one of the parties to the decision.” 
 
22A. That this Petitioner in the said Additional Argument stated that he had come to know  from credible source that this Hon’ble Court  has issued notices on the Writ Petitions  moved by certain parties, in the non-PIL contexts, after the dismissal of the Review Petition and the Curative Petition in an ‘inter partes situations.

II

AN APOLOGY

23.  This Petitioner in his most  humble way, absolutely without any personal, pecuniary,   professional,  or even an adventurous  interest, has tried to bring to this Hon’ble Court’s certain gross lapses in our public life believing in the ever-inspiring words of the Bhagavadgita:

Atmaiva hy atmano bandhur

Atmaiva ripur atmanah. [29]

 

This is a PIL which this Petitioner was free to initiate, or not to initiate, but once he did in 2000 he has no choice but to pursue pro bono publico till he reaches a cul-de-sac under our Constitution believing, though without much hope, what Ella Wheeler Wilcox  said in Settle  the Questions Right: “No question is ever settled until it is settled right”.  The Petitioner most humbly submits that the issues are extremely important in this phase of roaring Economic Globalization, and have coevally both micro and macro dimensions.[30] We have read about  Lord Nelson’s famous call to the fleet at the battle of Trafalgar:

                      ‘England expects every man to do his duty’

Variating on which it can be said:

                      ‘India expects every man to do his duty’

This Petition is moved, thus, with utmost ubrimma fides.

 

 

              

 

VIII

24.. GROUNDS

      I.  For that the impugned orders, against which this Writ Petition is moved, are without  Jurisdiction as it is in breach of Art. 145(1) of the Constitution, and also ORDER XXXV  of the Supreme Court Rules;

 

II. For that  the impugned  Order passed on Nov. 28, 2007, against which the aforesaid Review Petition had been filed, had  dismissed the Writ Petition © No. 334 of 2005  in contravention of  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 had 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 said Writ Petition © No. 334 of 2005  had 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 against  Arts 12, 13 and 32 of our Constitution. 

 

IV. For that the said Writ Petition© No. 334 of 2005   had 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 entirely  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.[31] 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”[32]

         (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[33]:

                                    “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 [ vide Annex ‘D’ at p. .87- 95].

 

     VI That, hence, in this humble Petitioner’s  view,   the impugned Order in the Writ Petition © No. 334 of 2005  , against which aforementioned  Review Petition had been filed, suffered from manifest  mistakes when it held that the “ the question  has been exhaustively considered by the Constitution Bench  in Rupa” (vide Annex ‘D’ pp. 87-95)

.

 

     VII.  That the view in the said impugned  Order  that the ‘decision of the S.C “which has attained finality” could not  “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.[34]” 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. But can this view operate if the decision of this Hon’ble Court is in a given  case not in conformity with the WTO obligations under a treaty done by the Executive Government? This Hon’ble Court is bound under the international law to conform its decision to the obligations undertaken under the Uruguay Final Act [vide para  at p. 21A at pp. 22-23]. How can our Constitution be worse off?

     ( c) Why should the aggrieved in the inter partes situation be prevented from knocking at the doors of their apex Court? Sri Rama allowed Bali to question his Jurisdiction [Valmikiya Ramayan, KishkindhaKand Ch 17, and Sri Rama made a comprehensive reply quoting his supreme constitutional duties on the authority of  Manusmriti [KishkindhaKand Ch 17.slokas 31 &32 ]. But the Hon’ble Court’s view is analogous to God’s fascist commandment to Job in the Book of Job in the Bible.  What could be raison  de ‘tre for such a view? Surely it cannot be because the “Judges are moral persons” suggesting obliquely that others are amoral, if not immoral or anti-moral [The Times of India, April 24, 2008 page 15]. Zeus on the Olympus is above all by the Instrument of Justice (Dike in Greek thought) is even above Him. 

VIII..  For that the decisions which are questioned by this Writ Petition  are, it is most respectfully submitted,  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 had been 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 had been  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.

            © As the Judgment/order, against which the Review Petition had been moved 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 had been 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.

 

IX. For that the Order dated Nov. 27, 2007 (against which this Review Petition had been  moved, which now stands dismissed by the impugned Order)  suffers from  many manifest and fundamental  errors as is  shown in  the tabular analysis of the said Order set forth in para 20 supra, showing, in effect, that the Rule of Law as mandated by our Constitution, is breached.

X.        For that  the effect of the decision in the Judgment/order (against which the Review Petition had been  moved)  is that it fails to uphold the Constitution by not protecting our Fundamental Rights.

XI. For that before this Hon’ble Court’s Order 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.”

XII. For that , as the impugned Order in the  said Writ Petition © No. 334 of 2005   ( the Review against which was dismissed by an  impugned Order also impugned under this Writ Petition) had raised some great  points calling for the interpretation of certain core provisions of our Constitution, and as they have not been considered and decided till this date in any of the decisions of this Hon’ble Court, the said Writ Petition deserved to be considered for grant or refusal of a Remedy under Art. 32  of the Constitution only in strict conformity with  Art 145 read with ORDER  XXXV  of the Supreme Court Rules . .

 

XIII  For that the  Application for Hearing to be held Ostiis apertis ( in the Open Court) in the matter of the Review Petition filed to-day against this Hon’ble Court’s Order of Nov. 28, 2007 was wrongly rejected.This Petitioner questions, on Constitutional grounds, the Jurisdiction of this Hon’ble Court to pass the  order, against which this Review Petition had been  filed. The normal practice of this Hon’ble Court is to consider a Review Petition in Chambers only, but there are good reasons why Justice requireD  this Case to be heard  Ostiis apertis. It was is submitted that decision, whether a matter be heard Ostiis apertis,  is always  Case-specific. Non grant of hearing in the Review proceeding had been upheld by a Constitution Bench of this Court in  P. N. Iswara v. Registrar, Supreme Court of India (AIR 1980 SC 808) as, Krishna Iyer J. pointed out,  a review  application has been preceded by a full hearing  in the open Court. Consequently it was observed that  ‘the objection to hearing the matter behind closed doors lost much of its force.’ This Hon’ble Court may appreciate that the fundamental objection in the Review Petition  to the question of the Jurisdiction of the Division Bench of the Hon’ble 3 Judges, which decided by the impugned Order  the said Writ Petition © No. 334 of 2005, could not have been considered by the Bench as  an Objection could be taken only when the impugned Order was made. In short, the grant of Oral hearing was an obvious requirement of Natural Justice.

XIV. For that the impugned Orders  deserve to be set aside also because this Hon’ble Court can never discriminate  between Petitioners equally placed. *************

It cannot hold a Writ Petition maintainable in one case, but not  maintainable in another case, when in both the cases the Petitions are filed after the dismissal of the Review Petition and the Curative Petition. Art. 14 of our Constitution says precisely what the Bhagavadgita (Ch.IV.18) says,  this Hon’ble Court should be “samadarshin”. [ Samadarshin  means ‘equality in perception’ (“samadarshin”).

 

 

IX

25. PRAYERS

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

(a) to  grant an appropriate remedy under Article 32 of the Constitution of India to set aside  the Judgment/order  dated Nov. 28, 2007 in the Writ Petition        (Civil)   No 334 (PIL) of 2005, as it was made  in breach of  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 deserved a consideration by a Constitution Bench, rather than an outright  dismissal as done; and hence the impugned orders are in breach of Article 14 of the Constitution;

 

                        (b)  to hold  that as  the right question is “whether the Judiciary is “the State” as defined in Art. 12?” [as if  it is so, it must conform, ipso jure,  to fundamental right conferred by Part III of our Constitution as it  is nowhere laid down in the Constitution that the remedy under Art. 32 is excluded by Art 137 or Art 137 of the Constitution[35] ], this Petitioner can invoke remedy under Article 32 of the Constitution against the impugned orders;

                                                  (c ) to declare, as this great constitutional issue has not been decided by this Hon’ble in any of its decisions hitherto delivered (thus is wholly res integra),  that in appropriate cases, it is possible to grant remedy under Article 32 of the Constitution even against the Superior Courts created to be at work under the Constitution of India;

                      

     (d) to refer the matter to a Bench of 5 Hon’ble Judges for  decision on the issues involved, or   even for dismissal of the Writ Petition © No. 334 of 2005   if the Bench of the 5 Hon’ble Judges  agreed to such a suggestion by this Referring Bench;

 

    (e) 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.[36]]

                 (f) to hold that the rejection of this Petitioner’s request, to hear the Review Petition in in the open court, was unjust and unfair as the Petitioner had 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: hence non grant of hearing Ostis apertis not only goes counter to Art 14, but to the whole grain of our Jurisprudence, even the Basic Structure of our Constitution;

                (g)  to hold that this Hon’ble Court cannot violate Art 14 by treating  identical constitutional questions  in different ways in different cases;

 

                (h)  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; and

              (i)  to permit this Petitioner to raise such other Prayers, with the leave of this Hon’ble Court, which he may deem his duty, wholly and exclusively pro bono publico,  to raise in course of the proceedings before the Court for the proper conduct of the matter? 

 

 

Certificate:

 This is to certify that this Petitioner had not  in the past  raised  matter, which was decided,  in  any other Writ Petition for judicial decision, and, and as such, was ever decided.

                                                                Drawn-up and filed by

New Delhi, August     ,   2008                                             Shiva Kant Jha

                                                                                A Petitioner-in-person

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



[1] AIR 1981 SC 487 :  “ It was for the first time in E. P. Ayyappa v. State of Tamil Nadu, (1974) 2 SCR 348: (AIR 1974 SC 555), that this Court laid bare a new dimension of Article 14 and pointed out that that Article has highly activist magnitude and it embodies a guarantee against arbitrariness… From a positivistic point of view equality is antithetic to arbitrariness.’" …… “Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.”

 

[2]  Shri Ramakrishna Dalmia v. Justice S R Tendolkar  1958 SC 538

[3]  [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.

[4] (1977) 1 W.L.R. 487: [1977] 2 All ER 720 C.A.

[5]  ibid  p.508

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

            [7].          Ibid p. 113.

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

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

[10] [10] H M Seervai, P. 391

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

[12] 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 4TH ed. p. 1494.   

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

[14] 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

[15] “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) .

[16] Rupa says:

           “15. In fairness to the learned counsel for the parties, we record that all of them at the close of the hearing of these cases conceded that the jurisdiction of this Court under Art. 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this Court after exhausting the remedy of review under Art.137 of the Constitution read with O. XL, R. 1 of the Supreme Court Rules, 1966.”

 

[17] To the extent the judicial determination in Rupa’s Case is founded on the counsels’ “concession”, it cannot, on established juristic principle, be treated as an authority for the propositions formulated therein. Salmond thus states the correct legal position:

 “For the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides…In course of his judgment, however, a judge may let fall various observations not precisely relevant to the issue before him…. Here of course, since the issue is not one that arises between the parties, full argument by counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision[17].”[           Salmond, Jurisprudence 12th ed.]

 

 In London Hospital v. I.R.C [(1976) 1 W.L.R. 613] Lord Brightman J. observed:

 “In conclusion I think it is desirable that I should make a brief reference to Baldry v. Feintuck. Counsel for the Medical College sought to rely on that case for the proposition that a Students Union is prima facie charitable. It is true that the motion proceeded on the footing that the Students’ Union in that case was a charity. The contrary, however, was never argued. The point went by concession. I accepted the concession because I thought it correct. But a case that proceeds on the basis of a proposition that is not tested by argument is not of much value as an authority for the validity of that proposition. Baldry v. Feintuck has not, therefore, assisted me in reaching my conclusion”[ italics supplied]

“Concession” is “something you agree to do or else someone else do or have, especially to end an argument or conflict.” [Collins Cobuild English Language Dictionary]. An issue of great constitutional importance of the sort under judicial consideration should have been argued to full stretch. The concession by the counsels appears amazingly wrong. They failed in persuading the Court to charter the full realm of the doctrine of Ex debito justitiae.

 

            [18].         AIR 1961 SC 935.

[19]   “52. In this connection, it is necessary to refer to another aspect of the matter and that has relation to the nature and extent of this Court's jurisdiction to issue writs of certiorari under Art 32 (2). Mr. Setalvad has conceded that if a Court of competent jurisdiction makes an order in a proceeding before it, and the older is inter partes, its validity cannot be challenged by invoking the jurisdiction of this Court under Art 32, though the said order may affect the aggrieved party's fundamental rights.”

[20]               “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

 

 

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

 Reg. V. Brown[21]. “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.’[21] 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.”

 

 

[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] 154 ITR, 148 SC

               [25]  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 give 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 Upadhyaya, Vice President, Amity Law School President, Amity Law School Former Dean, Faculty of Law:Calcutta University and Jabalpur University:Director, Central India Law Institute, Jabalpur:UGC Visiting Professor,National Law School of India University, Bangalore

[26] 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 7th 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).

 

[27] In Guincho Case (1984) ILR, 78 , p. 355, the European Court of Human Rights held that delays in national courts proceedings as a result  of constitutional changes could only in exceptional circumstances  constitute a justification for non-compliance with the state’s human rights obligations.[27] After a masterly analysis Oppenheim mentions that even in exercise of judicial functions the judiciary is one of the organs of the state. He observes:

        “……If the courts or other appropriate tribunals of a state refuse to entertain proceedings for the redress of injury suffered by an alien, or if the proceedings are subject to undue delay, or if there are serious inadequacies in the administration of justice, or if there occurs an obvious and malicious act of  misapplication of the law by the courts which is injurious to a foreign state or its nationals, there will be a ‘denial of justice’ for which the state is responsible  (quite apart from the effect which such circumstances might have for the application of the local remedies rule). The state’s responsibility will at least require it to take necessary action to secure proper conduct on the part of the court, and may extend to the payment of damages for the injury suffered as a result of the denial of justice.”[27]

 

                                              Oppenheim’s Internationa Law 9th ed PEACE p. 85, and pp. 543-44

 

[28] David Korten, When Corporations Rule the World p. 174

[29]   “……. for the Self alone is the friend of  the self and the  Self alone is the enemy of  the self.” The Bhagavadgita  VI. 5 ( Dr. S. Radhakrishnan’s  Translations)

 

[30]    It is clear from the trends and tendencies of our day that Market is planting its kiss on all the institutions spawned by the political realm. It has enchanted the executive to become market-friendly. Its persuaders have not left outside their spell even Judiciary. Richard Posner speaks of the Constitution as an Economic document, and proposals have been made to refashion constitutional law to make it a comprehensive protection of free markets, whether through new interpretation or new amendment, such as a balanced-budget amendment.[30] We are bidden to take into account the impact of legal institutions and rules on markets, and to undertake an economic analysis of law. Even the role of the State is defined in terms of our deference to the market. The Chicago University and the Yale Law School are the centres for the study of law and economics wherein economics dominates legal discourse. Homo juridicus is becoming homo economicus. Public policy of the State is manipulated to come to terms with the ideas of the mainstream neoclassical economics. The triumphal march of the Market, taking all institutions for granted as its minions, has generated forces which are taking us fast towards the Sponsored State.”

                                                        Shiva Kant Jha, Judicial Role in the Globalised Economy p. 2

 

 

[31]         “ (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 Law4th 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 4th 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 4th 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.[31] 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.”

 

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

[33] (1942) A.C. 206,at 245

[34]     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

[35] Dr D.D. Basu has rightly stated in his Commentary on the Constitution of India p.316 discussing Art 12.[35]:

                             “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’.

This is so because the proceedings under Art 32 and those under Art 136 materially differ on certain vital points: to state a few with utmost brevity:

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

(ii)        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 at the discretion of anybody, not even of the guardian of the Constitution or its acknowledged upholder.

(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.

(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 guan teed; however, the Supreme Court will not enforce that right if the petitioner under Art. 32(1) has availed of remedy provided under Art 137 or that granted under the judicially  devised Curative Procedure.”

 

 

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

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