Prem Chand Garg Vs. Excise
Commissioner, U. P., Allahabad  INSC 301 (6 November 1962)
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1963 AIR 996 1963 SCR Supl. (1) 885
CITATOR INFO :
D 1967 SC 1 (49,50,51,81,100) R 1967 SC 847
(5) RF 1968 SC 888 (12) E 1972 SC 963 (35) RF 1976 SC1750 (3) R 1978 SC 68 (89)
E 1980 SC 808 (4) D 1988 SC1531 (184) D 1991 SC2176 (51) O 1992 SC 248
Supreme Court-Writ Petition Security for
costs of respondent-Rule, validity of-Supreme Court Rules, O.XXXV, r.12Constitution
of India, Arts. 32 and 145.
Rule 12 of O.XXXV Supreme Court Rules
empowers the Supreme Court in writ petitions under Art. 32 to require the
petitioner to furnish security for the costs of the respondent. The petitioner
contended that the rule was invalid as it placed obstructions on the
fundamental right guaranteed under Art. 32, to move the Supreme Court for the
enforcement of fundamental rights.
Held, (per Sinha, C.J., Gajendragadkar,
Wanchoo and Das Gupta, JJ., Shah, J., contra), that r. 12 of O.XXXV Supreme
Court Rules is invalid in so far as it relates to the furnishing of security.
The right to move the Supreme Court under Art. 32 is an absolute right and the
content of this right cannot be circumscribed or impaired on any ground. An
order for furnishing security for the respondent's costs retards the assertion
or vindication of the fundamental right under Art. 32 and contravenes the said
right. The fact that the rule is discretionary does not alter the position.
Though Art. 142(1) empowers the Supreme Court to pass any order to do complete
justice between the parties, the Court cannot make an order inconsistent with
the fundamental rights guaranteed by Part III of the Constitution. No question
of inconsistency between Art.
142.(1) and Art. 32 arises as Art. 142(1)
does not confer any power on the Supreme Court to contravene the provisions of
Art. 32. Nor does Art. 145 which confers power, upon the Supreme Court to make
rules, empower it to contravene the provisions of Art. 32.
Ramesh Thapper v. State of.Madras, [19501 S.
C. R. 394, State of Madras v. V. G. Row,  S. C. R. 597 and Daryao v. of
U. P.,  1 S. C. R. 574, relied on, 886 Kavalappara Kottarathil Kochunni
Moopil Nayar v. State of Madras  Supp. 2 S. C. R. 316, explained.
Pandit M. S. M. Sharma v. Shri Sri Krishna
Sinha,  Supp. 1 S.C.R. 806, K. M. Nanavati v. State of Bombay,  1
S. C. R. 497, distinguished.
Shah,J.-The impugned rules is not void. The
rule does not directly place any restriction upon the right of a litigant to
move the Supreme Court. It merely recognises the jurisdiction of the Court, in
appropriate cases, to make an order demanding security. It is not, in
substance, a rule relating to practice and procedure but it deals primarily
with the jurisdiction of the Court, which has its source in Art. 142 of the
Constitution, No question of conflict arises between the rule which merely declares
the jurisdiction of the Court defined by Art. 142 and the right guaranteed
under Art. 32. The provisions of Art. 142 and Art. 32(1) must be read
harmoniously. Both being provisions in the Constitution, one cannot prevail
over the other.
Pandit M. S. M. Sharma v. Shri sri Krihhna
Sinha,  Supp. 1 S. C. R. 806, relied on.
ORIGINAL JURISDICTION : Petition No. 52 of
Petition under Art. 32 of the Constitution of
India for enforcement of fundamental rights.
G. S. Pathak, B. Gopalakrishnan and Naunit
Lal, for the petitioners.
K. S. Hajela and C. P. Lal, for the
respondents Nos. 1 & 2.
C. K. Daphtary, Solicitor-General of India,
B. R. L.
Iyengar and R. H. Dhebar, for respondent No.
1962. November, 6. The Judgment of Sinha,
C.J., Gajendragadkar, Wanchoo and Das Gupta, JJ., was delivered by
Gajendragadkar, J. Shah, J., delivered a separate judgment.
GAJENDRAGADKAR, J.-This is a petition under
Art. 32 and it raises an interesting and important 887 question about the
validity of one of the Rules made by this Court in exercise of its powers under
Art. 145 of the Constitution. The impugned Rule is Rule 12 in Order XXXV.
It provides that the Court may, in the
proceedings to which they said Order applies, impose such terms as to costs and
as to the giving of security as it thinks fit. One of the proceedings covered
by Order XXXV is a petition under Art.
32. The petitioners Prem Chand Garg, 8 Anr.,
partners of M/s. Industrial Chemical Corporation, Ghaziabad, have filed under
Art. 32 petition No. 348 of 1961 impeaching the validity of the order passed by
the Excise Commissioner refusing permission to the Distillery to supply power
alcohol to the petitioners. This petition was admitted on December 12, 1961 and
a Rule was ordered to be issued to the respondents, the Excise Commissioner of
U.P., Allahabad, and the State of U. P. At the time when the rule was thus
issued, this Court directed under the impugned Rule that the petitioners should
deposit a security of Rs. 2,500/in cash within six weeks. According to the
practice of this Court prevailing since 1959, this order is treated as a
condition precedent for issuing rule Nisi to the impleaded respondents. The
petitioners found it difficult to raise this amount and so, on January 24,
1962, they moved this Court for a modification of the said order as to
security. This application was dismissed, but the petitioners were given
further time to deposit the said amount by March 26, 1962.
This order was passed on March 15, 1962. The
petitioners then tried to collect the requisite fund, but failed in their
efforts, and that has led to the present petition filed on March 24, 1962. By
this petition, the petitioners contend that the impugned Rule, in so far as it
relates to the giving of security, is ultra vires, because it contravenes the
fundamental right guranteed to the petitioners under Art. 32 of the
Constitution. That is how the question about the validity of the said Rule
falls to be determined on the present application, 888 Article 32 (1) provides
that the. right to move the Supreme Court by the appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed, and sub Art.
(4) lays down that this right shall not be suspended except as otherwise
provided for by this Constitution.
There is no doubt that the right to move this
Court conferred on the citizens of this country by Art. 32 is itself a
guaranteed right-and it holds the same place of pride in the Constitution as do
the other provisions in respect of the citizens' fundamental rights. The
fundamental rights guaranteed by Part III which have been made justiciable,
form the most outstanding and distinguishing feature of the Indian
Constitution. It is true that the said rights arc not absolute and they have to
be adjusted in relation to the interests of the general public. But as the
scheme of Art. 19 illustrates the difficult task of determining the propriety
or the validity of adjustments made either legislatively or by executive action
between the fundamental rights and the demands of socioeconomic welfare has
been ultimately left in charge of the High Courts and the Supreme Court by the
It is in the light of this position that the
Constitution makers thought it advisable to treat the citizens' right to move
this Court for the enforcement of their fundamental rights as being a
fundamental right by itself. The fundamental right to move this Court can,
therefore be appropriately described as the comer-stone of the democratic
edifice raised by the Constitution. That is why it is natural that this Court
should, in the words of Patanjali Sastri, J., regard itself "as the
protector and guarantor of fundamental rights, "and should declare that
"it cannot, consistently with the responsibility laid upon it, refuse to
entertain applications seeking protection against infringements of such
rights" (Vide Ramesh Tlappar Y. The State of Madras). (1) In discharging
the duties assigned to it, this Court has to play (1)  S.C.R. 594, 597.
889 the role "'of a sentinel on the qui
vive" (Vide State of Madras v. V. G. Row) (1), and it must always regard
it as its solemn duty to protect the said fundamental rights zealously and
vigilantly (Vide Daryao v. The State of U. P.) (2). Mr. Pathak for the
petitioners contends that the right guaranteed under Art. 32 (1) is not subject
to any exceptions as are the rights guaranteed by Art. 19. The right to move
this Court is an absolute right and the content of this right cannot be
circumscribed or impaired on any ground, such as the interests of the general
public. It is in this connection that Mr. Pathak preferred to describe the
guaranteed right under Art. 32 as "absolutely absolute".
The key role assigned to the right guaranteed
by Art. 32 and the width of its content are writ large on the face of its
provisions, and so, it is, in our opinion unnecessary and even inappropriate to
employ hyperboles or use superlatives to emphasise its significance or
Mr. Pathak however, conceded that the right
to move this Court can be validly regulated by rules of procedure and
regulations made with a view to aid the assertion and vindication of the right
and to provide for a fair trial of the points raised by the petitioners. For
instance, he agrees that a rule can be made that the petition proposed to be
filed under Art. 32 should be legibly written, or typed, before it is filed, or
that the relevant paper book should be prepared in the prescribed manner in
order to facilitate the reference in Court, or that a notice should be issued to
the respondent, or for the making of the affidavit in the prescribed manner.
These rules, he argues, can be legitimately made because they serve to aid and
facilitate a fair disposal of the petition made by the petitioner on the
merits. If, however, a rule is made which retards or obstructs the petitioner's
.attempt to assert his fundamental right under Art. 32, that rule must be
struck down as being violative of Art. 32. His argument is that the impugned
rule imposes upon the petitioners an obligation to deposit (1) 
S.C.R.597,605. (2)  1 S.C.R. 574, 582.
890 a certain amount in Court as security for
the respondents costs, and far from siding or assisting the petitioners'
assertion of fundamental right, it has the effect of retarding or obstructing
the same. If, as in this case the petitioners are unable to deposit the
security, their petition is liable to be dismissed for non-prosecution.
That clearly illustrates the hardship that
the rule will work, and thus brings out how it contravenes Art. 32.
On the other hand, the learned
Solicitor-General who has appeared for the Registrar of this Court, has argued
that the rule cannot be said to contravene Art. 32 because it is a
discretionary rule and it vests discretion in this Court either to make an
order as to the giving of the security or not to make it, as it may deem fit
according to the circumstances of each case. He conceded that for some time
past., it has been the practice of this Court generally to make ,in order as to
security in Art. 32 petitions, though in some cases, on the motion of the
petitioner, the amount of security has been reduced and sometimes security has
even been dispensed with. But he argues that if the prevailing practice is
found to be unsatisfactory or inconsistent with the spirit of the rule itself,
the remedy is to change the practice; there is, however, no vice in the rule.
In a proper case, security can be demanded from the petitioner because that is
the normal rule of procedure recognised by the Civil Procedure Code. In this
connection' he relied on the provisions of 0.25 r. 1 & 2 and 0.41 r. 10.
Like all judicial trials, even in respect of the trial of the petition filed
under Art. 32, the Court must act fairly by both the parties, and so, if it
appears to the Court that it is in the interest of justice that the costs of
the respondent should be secured, it would be open to the Court to make an
order of security in that behalf and a rule which permits such an order to be
made in a proper case, cannot be said to be inconsistent with Art. 32. In
support of this 891 argument, the Solicitor-General relied upon the provisions
of Art. 145(1)(f) and more particularly on the wide power conferred on this
Court under Art. 142(1) of the Constitution. He also suggested that in determining
the effect of the wide provisions of Art. 142, we ought to adopt the rule of
harmonious construction so as to reconcile the said powers with Art. 32.
If the present dispute had been confined to
the narrow question about the construction of the impugned rule and the
propriety or otherwise of the prevailing practice, it would have become
necessary for us to consider whether the rule can be said to be valid and the
practice prevailing irregular inasmuch as in some cases security may perhaps
have been demanded from the petitioner without full examination as to the
special features of the case. In that case, it would have become necessary also
to consider whether the rule cannot be sustained in so far as it vests the
discretion in the highest Court of this country and can be used only in cases
where for reasons like those contemplated by Order 25 r. 1 & 2 and 0.41 r.
10 an order of security is made. In this connection, two rival contentions have
been urged before us. Mr. Pathak argues that the rule is very wide and would
justify the making of an order for security even in cases which do not satisfy
the tests laid down, for instance, by 0.25 r. 1 and 0.41 r. 10 of the Code and
he argues that in such a case, the rule must be struck down as a whole. In support
of his contention Mr. Pathak has relied on the decision of this Court in Ramesh
Thappar v. The State of Madras(1), Chintaman Rao v. The State of Madhya
Pradesh() , and Kameshwar Prasad v. State of Bihar(3). On the other hand, the
Solicitor-General contends that the rule should be so construed as to enable
this Court to make orders of security only in proper cases and on that narrow
construction its validity should be upheld. if, in some cases, orders have been
passe without a full examination of the merits of the question, that (1) 
S.C.R. 594, 597. (2)  S.C.R. 759.
(3)  Supp. 3 S.C.R. 369.
892 may only mean that the said orders may
not have been properly passed under the rule. The exercise 'of the power
conferred on the Court in such cases will not, however, invalidate the rule
itself. In support of this argument, reliance has been placed on the decisions
of this Court in the cases of )?.M.D. Chamarbaugwalla v. The Union of India(1)
and Kedar Nath Singh v. State of Bihar(2).
As we have just indicated, it would have
become necessary for us to examine these contentions if the power to make an
order for security in appropriate cases had been conceded by the petitioners.
But since the existence of the power is disputed, we have to decide the larger
issue raised by Mr.
Pathak. Mr. Pathak argues that even in cases
to which the relevant provisions of 0.25 and 0.41 may ordinarily apply, this
Court has no power to make an order of' security in a petition under Art. 32.
The only test, says Mr. Pathak, which can be legitimately applied in dealing
with the matter is : does the rule aid or assist the assertion or vindication
of the fundamental right, or does it retard or obstruct it ? If the answer to
the question is that the rule retards or obstructs the assertion or vindication
of the fundamental right by imposing a pecuniary obligation on the petitioner,
the rule is bad and there is no authority in this Court to make such a rule
under Art. 145 and there is no jurisdiction in the Court to make such an order
under Art. 142. It is this larger question which calls for our decision in the
In support of his argument that this Court
has no power to make such a rule, Mr. Pathak has relied on the decision of this
Court in the Cape of Kavalappara Kottarathil Kochunni Moopil Nayar V. The State
of Madras(3). In that case, Das, C.J has examined the scope and effect of the
provisions of Art. 32 and has observed that an application made under Art.
32 cannot be rejected on the simple ground that
the petitioner has an alternative remedy open to him., Then (1)  S.C.R.
930. (2)  Supp.2 S.C.R. 769, (3)  2 S.C,R. 316, 335.
893 the learned C.J. addressed himself to the
question as to whether such an application could be dismissed on the ground
that it involves the determination of disputed questions of fact, and in
answering this question in the negative, he has stated his conclusion in these
words : 'But we do not countenance the proposition that, on an application
under Art. 32, this Court may decline to entertain the same on the simple
ground that it involves the determination of disputed questions of fact or on
any other ground." It is on the last clause of the sentence that Mr.
Pathak relics. He contends that the statement of the learned C. J., is
categorical that a petition under Art. 32 cannot be dismissed on the ground
that it involves the decision of disputed questions of fact or on any other
ground, and that excludes the ground of nonpayment of security. We do not think
that this argument is well-founded. The words "or on any other
ground" on which the argument rests, cannot be torn from their context.
The context shows that "any other ground', which the learned C. J., had in
mind must be similar to the ground which he had enumerated before using the
said clause. Take, for instance, the case of a petition which is barred by res
judicata. This Court has held that the principles of res judicata apply to
petitions under Art. 32 (Vide Daryao v. The State of U. P.) (1). Take also the
case where a petition under Art. 32 would be liable to be dismissed on the
preliminary ground that it purports to challenge an order of assessment made by
an authority under a taxing statute which is intra vires, on the sole ground
that it is based on a misconstruction of a provision of the Act or of a
notification issued there under, Vide Smt. Ujjam Bai v. The State of Uttar
Pradesh (2). If the words "or on any other ground" used by Das, C.
J., are literally construed, they would have to be treated as inconsistent with
these subsequent decisions. That, however, is plainly not the true position and
so, the argument based on the said words used by Das, C. J., cannot, in our
opinion, be (1)  1 S.C.R. 574,582.
(2)  1 S.C.R. 778, 894 accepted. It
would, we think, be unfair to assume that in using the words "or on any
other ground" this Court wanted to imply, as Mr. Pathak seems to assume,
that once a petition is made under Art. 32, there is no alternative but to
consider its merits apart from considerations Like res judicata or the
competence of the petition itself.
Therefore, the argument that the rule is
inconsistent with the decision in Kochunni Moopil Nayar's(1) case must be
The next question to consider is whether an
order for security can be said to retard or obstruct the assertion or
vindication of a fundamental right under Art. 32. For anology, we may refer to
0. 25 r. 1 and 0. 41 r. 10. These rules give us an idea as to the circumstances
in which orders of security are made under the Code of Civil Procedure. 0, 25
r. 1 provides, inter alia, that if the plaintiffs reside out of India and do
not possess any sufficient immovable property within India other than the
property in suit, the Court may, on its own motion or on the application of any
defendant, order security to be deposited by them. A similar order can be
passed where any party to the suit leaves India under circumstances which would
show that in all probability he will not be forthcoming to pay the costs of his
opponent when called upon to do so. Such an order can also be passed if the
plaintiff happens to be a woman and the Court is satisfied that she does not
possess sufficient immovable property within India. 0.41 r. 10 confers on the
appellate Court discretion to demand from the appellant security for the costs
of the appeal or of the original suit or of both in somewhat similar
Now if an order is made calling upon the
petitioner to furnish security in cases similar to those covered by 0. 25 r. 1
and 0. 41 r. 10, would it not be reasonable to say that the order of security
would retard the assertion or vindication of the fundamental right ? The order
imposes on the petitioner a financial obligation and if he is not able to
comply (1)  2 S.C.R. 316, 335, 895 with the order, his petition would
fail. In our opinion there is no doubt that an order of security for the
respondent's costs would, in some cases effectively bar' and in all cases
amount to a hindrance in, the further progress of the petition. It cannot be
said that the said order aids a fair hearing of the petition like the order
prescribing the manner in which the paper books have to be prepared, or other
steps in connection with the petition have to be taken. It. may be conceded
that the order is intended to protect the interest of the respondent and in
that sense, may be treated as fair; but the fairness of the order or of the
object intended to be achieved by it will not disguise the fact that its effect
is not to aid the petition but to retard it to some extent. In considering the
constitutionality of the order or the rule which permits the order to be made,
the fact that the object intended to be achieved is good, just or
unexceptionable would be immaterial, vide the State of Bombay v. Bombay
Education Society(1), and Punjab Province v. Daulat Singh(2).
Therefore, we do not see how it is possible
to escape the conclusion that the order for security retards the assertion or
vindication of the fundamental right under Art. 32 and in that sense, must be
held to contravene the said right.
It is true that the statistics of the Art. 32
petitions filed in this Court during the last decade may show that the majority
of the petitions are filed by citizens who complain about the contravention of their
fundamental right under Art. 19(1)(f) and (g) and in that sense, the validity
of the impact of the welfare policies of the States or the Union Government on
the property rights of the citizens has more frequently fallen to be considered
by this Court.
Contravention of fundamental rights in
respect of the freedom of speech and expression, and the freedom to form
assemblies, associations or Unions, which some jurists describe as
"preferred freedoms" (1) [1955) 1 S.C.R. 568, 583, (2) (1946) L.R. 73
I.A. 59, 7-, 896 has not given rise to as many petitions as the contravention
of property rights has, and in that sense; it may be permissible to assume that
the petitioners who complain against the infringement of their property rights
may be able to comply with the orders of security passed by the Court under the
impugned rule; but that, in our opinion, is hardly relevant. If the right under
Art. 32 is circumscribed or impaired by such in order, the fact that the
petitioner may be able to comply with the order would not help to make the
order or the rule valid.
Therefore, the practical considerations to
which reference was made during the course of the arguments have no material
bearing in deciding the validity or the constitutionality of the rule or the
existence of the relevant power in this Court under Art. 142.
It is, however, urged by the learned
Solicitor-General that the powers of this Court under Art. 142 are very wide
and cannot be controlled by Art. 32. He has put his argument in two ways. He
urges that the words used in Art. 142 are very wide and since they constitute
the constitutional charter of this Court's powers, they u must be very
This contention is undoubtedly well founded.
Article 142(1) provides that in exercise of its jurisdiction, this Court may
pass such decree or make such order as is necessary for doing complete justice
in any cause or matter pending before it; and it adds that a decree or order so
made shall be enforceable throughout the territory of India in the manner
prescribed by any law made by Parliament and, until provision in that behalf is
so made, in such manner as the President may by order prescribe. The
Solicitor-General wants us to compare Art. 142(1) with Art. 194(3) and he
suggests that just as the powers, privileges and immunities specified by the
latter Article are not subject to the provisions in respect of fundamental
rights, so is the power specified by Art. 142 (1) not subject to the said
rights 897 In support of this argument, Ike has relied on the decision of this
Court in the case of Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha (1). It
may be recalled that Art. 194 deals with the powers, privileges and immunities
of State Legislatures and their members and Art. 194(3) provides that in other
respects, the powers, privileges and immunities shall be such as may from time
to time be defined by the Legislature by law, and until so defined shall' be
those of the House of Commons of the Parliament of the United Kingdom, and of
its members and committees, at the commencement of this Constitution. The
effect of this provision is that until law is made in that behalf, the powers
enjoyed by the members of the House of Commons and its Committees at the
commencement of this Constitution shall continue to be enjoyed by the members
of the State Legislatures and their committees. One of the points which fell to
be considered by this Court in the case of Sharma was whether the rights,
powers and privileges of the members of the House pf Commons which could be
claimed by the members of the State Legislatures had to stand the scrutiny of
the test prescribed by Art. 19. In other words, if it appears that the said
rights were inconsistent with the provisions of Art. 19(1), had the said rights
to yield before the fundamental rights guaranteed by Art.19(1); and this Court
held that Art. 19(1)(a) and Art. 194(3) have to be reconciled and the only way
of reconciling the same is to read Art. 19(1)(a) as subject to the latter part
194(3) just as Art. 31 has been read as
subject to Art. 265 in the earlier decisions of this Court. In other words, the
effect of this decision is that if there is a conflict between the rights
claimed under the latter part of Art.
194(3) and the fundamental rights of citizens
under Art. 19, the validity of the said rights cannot be impeached on the
ground that they are inconsistent with the provisions of Art. 19(1)(a).
(1)  1 S.C.R. 806, 898 Basing himself
on this decision, the Solicitor General argues that the power conferred on this
Court under Art. .142(1) is comparable to the privileges claimed by the members
of the State Legislatures under the latter part of Art. 194(3), and so, there
can be no question of striking down an order passed by this Court under Art.
142(1) on the ground that it is inconsistent with Art. 32. It would be noticed
that this argument proceeds on the basis that the order for security infringes
the fundamental right guaranteed by Art. 32 and it suggests that under Art.
142(1) this Court has jurisdiction to pass such an order. In our opinion, the
argument thus presented is misconceived. In this connection, it is necessary to
appreciate the actual decision in the case of Sharma and its effect. The actual
decision was that the rights claimable under the latter part of Art. 194(3)
were not subject to Art. 19(1)(a), because the said rights had been expressly
provided for by a Constitutional provision, viz., Art. 194(3), and it would be
impossible to hold that one part of the Constitution is inconsistent with another
part. The position would, however, be entirely different if the State
Legislature was to pass a law in regard to the privileges of its members. Such
a law would obviously have to be consistent with Art. 19(1)(a). If any of the
provisions of such a law were to contravene any of the fundamental rights
guaranteed by Part III, they would be struck down as being unconstitutional.
Similarly, there can be no doubt that if in respect of petitions under Art. 32
a law is made by Parliament as contemplated by Art. 145(1), and such a law, in
substance, corresponds to the provisions of 0.25 r. 1 or 0.41 r. 10, it would
be struck down on the ground that it purports to restrict the fundamental right
guaranteed by Art. 32. The position of an order made either under the rules
framed by this Court or under the jurisdiction of this Court under Art. 142(1)
can be no different. If this aspect of the matter is borne in mind,, there
would be no difficulty in rejecting (1)  1 S.C.R. 806,859-860.
899 the Solicitor-General's argument based on
Art. 142(1). The powers of this Court are no doubt very wide and they are
intended to be and will always be exercised in the interest of justice. But
that is not to say that an order can be made by this Court which is
inconsistent with the fundamental rights guaranteed by Part III of the
Constitution. An order which this Court can make in order to do complete
justice between the parties, must not only be consistent with the fundamental
rights guaranteed by the Constitution, but it cannot even be inconsistent with
the substantive provisions of the relevant statutory laws.
Therefore, we do not think it would be
possible to hold that Art. 142(1) confers upon this Court powers which can
contravene the provisions of Article 32.
In this connection, it may be pertinent to
point out that the wide powers which are given to this Court for doing complete
justice between the parties, can be used by this court for instance, in adding
parties to the proceedings pending before it, or in admitting additional
evidence, or in remanding the case, or in allowing a new point to be taken for
the first time. It is plain that in exercising these and similar other powers,
this Court would not be bound by the relevant provisions of procedure if it is
satisfied that a departure from the said procedure is necessary to do complete
justice between the parties.
That takes us to the second argument urged by
the SolicitorGeneral that Art. 142 and Art. 32 should be reconciled by the
adoption of the rule of harmonious construction. In this connection, we ought
to bear in mind that though the powers conferred on this Court by Art. 142(1)
are very wide, and the same can be exercised for doing complete justice in any
case, as we have already observed, this Court cannot even under Art. 142(1)
make an order plainly inconsistent with the express statutory provisions of
substantive 900 law, much less, inconsistent with any Constitutional
provisions. There can, therefore, be no conflict between Art. 142(1) and Art.
32. In the case of K. M. Nanavati v. The State of Bombay(1) on which the
Solicitor-General relies, it was conceded, and rightly, that under Art. 142(1)
this Court had the power to grant bail in cases brought before it, and so,
there was obviously a conflict between the power vested in this Court under the
said Article and that vested in the Governor of the State under Art. 161.
The possibility of a conflict between these
powers necessitated the application of the rule of harmonious construction. The
said rule can have no application to the present case, because on a fair
construction of Art. 142(1).
This Court has no power to circumscribe the
fundamental right guaranteed under Art. 32. The existence of the said power is
itself in dispute, and so, the present case is clearly distinguishable from the
case of K. M. Nanavati(1).
Let us now consider whether a rule can be
made under Art.
145(1) providing for the making of an order
for furnishing security in cases of petitions under Art. 32 where the Court is
satisfied that in case the petition fails, the petitioner may not be able to
pay the costs of the respondent. The impugned rule is presumably based upon the
provisions of Art. 145(1) (f). It may be assumed that the expression
"costs of and incidental to any proceedings in the Court" used in
clause (f) may cover in order of security ; but if an order for security
amounts to a contravention of Art. 32, there would be no power to make such a
rule under Art.
145(1)(f). After all, rules framed under Art.
145 are in exercise of the delegated power of legislation, and the said power
cannot be exercised so as to affect the fundamental rights. If the wide words
used in Art. 142 cannot justify an order of security, in an Art. 32 petition,
it follows that a rule made under Art. 145 cannot authorise the making of such
an order. We ought to add that cases of frivolous petitions filed (1)  1
901 under Art. 32 can be eliminated at the
preliminary hearing of such petitions. Since 1959, petitions filed under Art.
32 are set down for a preliminary hearing and
it is only after the Court is satisfied that a prima facie case has been made
out by the petitioner that a rule Nisi is ordered to be issued against the
respondent. In order to decide this question, sometimes notice is issued to the
respondent even at the preliminary hearing and it is after hearing the
respondent that a rule is issued on the petition. It may be that in some cases,
the respondent may not be able to recover its costs from the petitioner even if
the petition is dismissed on the merits. But that, in our opinion, cannot
justify the making of an order for security, because even impecunious citizens,
or citizens living abroad, must be entitled to move this Court if they feel
that their fundamental rights have been contravened. Similarly, women who own
no property would be entitled to move this Court in case their fundamental
rights are contravened, and following the anology of 0.25 r. 1(3), no order for
security can be made against them, because that would make their right
illusory. That obviously is the content of the fundamental right guaranteed
under Art. 32, and since the impugned rule, in so far as it relates to security
for costs, impairs the content of that right, it must be struck down as being
unconstitutional. Rules framed under Art. 145 which govern the practice and
procedure in respect of the petitions under Art. 32 with the object of aiding
and facilitating the orderly course of their presentation and further progress
until their decision, cannot be said to contravene Art. 32.
All proceedings in Court must be orderly and
must follow the well recognised pattern usually adopted for a fair and
satisfactory hearing; petitions under Art. 32 are no exception in that behalf.
Besides, orders can be passed on the merits of the petitions either at an
interlocutory stage or after their final decision., and no objection can be
taken against such orders on the ground that they contravene Art. 32. In a
proper 902 case, proceedings threatened against the petitioners' may be stayed
unconditionally or on condition or may not be stayed, or a Receiver may be
appointed in respect of the property in dispute, or at the end of the final
hearing if the petition fails, the petitioner may be ordered to pay the costs
of the respondent. All these are matters whose validity cannot be challenged on
the ground that they contravene Art. 32. But if a rule or an order imposes a
financial liability on the petitioner at the thresh-hold of his petition and
that too for the benefit of the respondent, and non-compliance with the said
rule or order brings to an end the career of the said petition, that must be
held to constitute an infringement of the fundamental right guaranteed to the
citizens to move this Court under Art. 32. That is why we think Rule 12 in
respect of the imposing of security is invalid.
There is another aspect of the matter to
which reference must incidentally be made. The rule is obviously intended to
secure the costs of the respondent in a proper case. Let us see how this rule
will work if it is interpreted and acted upon in the manner suggested by the
learned Solicitor General. In practice, at present, an order of security is
normally made unless a request is made by the petitioner either for the
reduction of the amount or for dispensing with the security altogether. If the
petitioner is not impecunious, an order for security will not serve any
essential purpose, because if the costs are awarded against him after the final
hearing, the respondent may be able to secure his costs. If, however, the
petitioner is impecunious, the Court may not, after granting a rule on the
petition, in its discretion, pass an order of security and in that sense, the
very object of securing the respondent's costs would not be served. It is true
that if the discretion is exercised by the Court in favour of impecunious
petitioners and orders for security are not passed in their cases, no hardship
will be caused to them.
But it seems to us 903 that what would be
left to the discretion of the Court on this construction of the rule, is really
a matter of the right of impecunious petitioners under Art. 32. That is why we
think that the impugned rule in so far as it relates to the giving of security
cannot be sustained.
In the result, the petition is allowed and
the order passed against the petitioners on December 12, 1961, calling upon
them to furnish security of Rs. 2,500/is set aside. There would be no order as
SHAH, J.-The petitioner filed petition No.
348 of 1961 invoking jurisdiction of this Court to issue a writ under Art. 32
of the Constitution on the plea that certain orders passed by the Excise
Commissioner, U.P. were invalid. The petitioner was directed on December 12,
1961 when rule was ordered to issue to the respondents-Excise Commissioner,
U.P. Allahabad, and the State of Uttar Pradesh to "furnish security in the
sum of Rs. 2,500/in cash within six weeks for the costs of the
respondents". The petitioner failed to comply with the order, and moved
this Court for modification thereof. This application was dismissed, but at the
request of the petitioner time for furnishing security was extended till March
26, 1962. Stating that his efforts to collect the requisite amount were
unsuccessful, the petitioner presented this petition and prayed that the order
requiring him to furnish security in the sum of Rs. 2,500/be vacated because R.
12 0. XXXV of the Supreme Court Rules under which presumably the order was
made, contravened the fundamental right guranteed by Art. 32(1) of the
The petitioner contends that the rule
infringes the fundamental right to move this Court guaranteed by Art. 32 (1) of
the Constitution. Prima facie, by the rule no restriction is placed directly
upon the 904 right of a litigant to move this Court for relief against
infringement of fundamental rights. The rule merely envisages exercise of
jurisdiction of this Court in appropriate cases to impose upon a party under an
order final or interlocutory-such terms as to costs, and to security for costs
or for other purposes, as the Court thinks fit. Undoubtedly an order directing
the petitioner to furnish security for the costs of the respondent raises some
obstacle to the prosecution of a petition for relief against infringement of
fundamental rights claimed by the petitioner. Are the order, and the authority
in exercise of which the order is made on that account void ? Article 32
substantially makes two provisions. By the first clause it guarantees the right
to move the Supreme Court by appropriate proceedings. As a corollary thereof by
cl. (4) it is provided that the guarantee under cl. (1) shall not be suspended
except as provided by the Constitution. Clause (2) declares the jurisdiction of
the Court to issue directions, orders or writs including certain specified
writs for enforcement of any of the rights conferred by Part 111. A truly
democratic Constitution recognizes not only certain important natural rights
which are the attributes of a free citizen, but also sets up adequate machinery
for protection against invasion of those rights. Our Constitution has in Ch.
III enumerated certain fundamental rights such as equality before the law, with
the concomitant guarantee against discrimination, right of freedom of speech,
assembly, association, movement and residence, right to acquire, hold and
dispose of property and to practice any profession or to carry on occupation,
trade or business, freedom of conscience and the right to practice and
propagate religion, freedom to manage religious affairs and cultural and
educational 'rights. After enunciating the rights some in terms positive, some
in negative, exercisable absolutely or subject to reasonable restrictions the
Constitution has rendered all laws 905 inconsistent therewith if preexisting,
or made in contravention, thereof if enacted after the commencement of the
Constitution, void to the extent of the inconsistency or contravention. For
relief against infringement of these rights by action legislative or executive
by the State, recourse may undoubtedly be had to the ordinary Courts by
institution of civil proceedings for appropriate relief.
But the Constitution has conferred upon the
High Courts and the Supreme Court power to issue writs for the protection of
those fundamental rights, and the Constitution has guaranteed by Art. 32(1) the
right to move this Court for enforcement of those rights. The right to move
this Court for enforcement of the fundamental rights is therefore itself made a
fundamental right. Law which is repugnant to the effective exercise of the
right to move this Court in enforcement of the rights described in Ch. III
therefore to the extent of inconsistency or contravention would be void.
Is it that the exercise of the right is to be
so unfettered, that any law which imposes any restriction in any form whatever
against the exercise of that right direct or indirect must be regarded as void
? Counsel for the petitioner using the language of hyperbole submitted that the
right was "absolutely absolute", and even a law which by itself does
not place any restriction upon the exercise of the right but which contemplates
the exercise of the jurisdiction of this Court to impose restriction upon the
exercise of the right, must be regarded. as void.
But the right guaranteed is not wholly unfettered
or unrestricted as claimed. Art. 32(1) guarantees a right to move by
"'appropriate proceedings" : there is therefore in the Article itself
limitation upon the exercise of the right. Appropriate proceedings would
include the procedure relating to form, conditions of lodgement of petitions,
and compliance with a reasonable directions imposed which would conduce to the
smooth conduct of proceeding in this Court, 906 Power to make rules for
practice and procedure of this Court read with the guarantee under Art. 32(1)
to move by appropriate proceedings implies the power to impose procedural
restrictions conducive to the orderly progress of the petition for relief for
breach of a fundamental right.
The argument of counsel of the petitioner
that the right to move this Court for enforcement of a fundamental right is
absolute, may involve the plea that rules of the Court which require a petition
to be filed, legibly written, typewritten or lithographed, submission of
translation of documents not in the English language, presentation of
affidavits, payment of court-fee on the petition and process fee for service of
notice upon the parties concerned and similar rules would be invalid, for all
these rules in a sense obstruct, the exercise of the right, and impose
financial obligations which are not insignificant. But this rather extravagant
view of the absolute character of the right to move this Court was very
properly not attempted to be sustained. It was conceded that the right
conferred by Art. 32(1) to move this Court may be regulated by all such
directions general or ad hoc which serve to aid and facilitate a fair disposal
of the case, according to an orderly procedure.
What the Constitution has guaranteed is the
right to move this Court i.e. the right to claim redress against an alleged
infringement of a fundamental right. This Court is doubtless made the custodian
of the fundamental rights guaranteed by the Constitution and we would be
failing in our duty if we were to refuse to entertain a petition for
enforcement of a fundamental right or to decline to adjudicate upon the same.
We cannot direct, the litigant to seek relief by recourse to a Civil Court or
other remedy where prima .,facie an infringement of the fundamental right is
made out, but that is not to say that, after the petition is entertained the
Court, is 907 not bound to hold the scales even between the litigating parties.
The party complaining of infringement of a fundamental right has undoubtedly
the right to demand that his petition shall be entertained and heard and
disposed of according to. law, but in the investigation of the claim to relief
the petitioner is not entitled to any higher privileges than any other litigant
would be entitled to in respect of a lis which is brought up for adjudicating
before this Court. The claim of the parties must be supported by evidence,
witnesses in support must be brought before the Court or examined on
commission; if the party dies or ceases legally, to exist representative of the
party should be brought on record, if the pleadings arc not proper they. may be
struck off or amended and if the claim sought to be litigated has been
previously adjudicated upon the rule of res judicata would apply. The procedure
for trial and adjudication of a claim which does not involve enforcement of a
fundamental right is in substance the same as in the case of a petition for
enforcement of a right under Ch. III.
An order for security for costs of the
respondent or for other purposes is a procedural order, and unless imposition
of an order for furnishing security may be regarded as amounting substantially
to a denial of the right to move, this Court, the insistence of a special rule
warranting an exception in proceedings for enforcement of fundamental rights
cannot be appreciated. It may be observed that the impugned rule does not
contemplate that the order is to be made as a matter of course. It merely
recognises the jurisdiction of the Court in appropriate cases to demand
security; it does not prescribe or even indicate the stage at which this order
has to be made. The jurisdiction of the Court is declared in the most general
terms and is to be exercised only when the Court thinks it necessary in order
to do justice in the proceeding.
Undoubtedly a practice has grown up lately
that when rule is issued in petition for enforcement 908 of a fundamental
right, the Court is requested to consider whether the petitioner should furnish
security for the costs of the respondent. The matter is then judicially
considered and an order requiring the petitioner to furnish security if the
Court is satisfied about the necessity of passing such an order is made. But
even orders so passed are often recalled and modified having regard to the
justice of the case. The practice of considering the question at the initial
stage-of issuing the rule may require to be altered, but there is nothing in
the rule which requires that practice to be followed. In an appropriate case
the Court may make an order suo motu at the threshold of the proceeding, or at
any time in another, on the request made by the respondent. All such orders are
in the exercise of the jurisdiction of the Court, having regard to the
circumstances and for doing complete justice between the parties.
In considering the nature of the jurisdiction
exercise by the Court reference must be made to Art. 142 of the Constitution
which in so far as it is material in this case provides by the first clause
that "the Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in any
cause or matter pending before it x x x x x x ". The jurisdiction of the
Court so described undoubtedly embraces power to make an order requiring
security in appropriate cases, and the impugned rule does no more than
enunciate a facet of the jurisdiction of this Court which is conferred by Art.
142. The expression "as it thinks fit' must in the context in which it
occurs mean that where the Court deems it necessary for doing complete justice
in the cause or matter pending before it, the Court may make the order as to
giving of security.
It is not necessary to consider whether in
exercise of the delegated power of legislation conferred 909 by Art. 145 (1) it
is open to this Court to make a rule requiring security for costs from a
litigating party which may apparently place a restriction upon 'the exercise of
the fundamental right under Art. 32. The impugned rule is not in substance a
rule relating to practice and procedure, but deals primarily with the jurisdiction
of the Court, which has its source in Art. 142.
Can the petitioner claim immunity from an
order for furnishing security for costs or for other purposes merely because he
has commenced a proceeding tinder Art. 32 (1) of the Constitution, even if the
Court is of the opinion that it is necessary in doing complete justice to make
the order? The impugned rule does not contemplate that the order is to be made
as a matter of course. It merely recognises the jurisdiction of the Court in
appropriate cases to make. an order demanding security. It also does not
prescribe the stage at which the order is to be made.
Assuming that an order made in a given case
may be erroneous the jurisdiction of the Court conferred by the Constitution
under Art. 142 to make such orders as may be necessary for doing complete
justice is not on that account affected. I am unable to countenance the
proposition that in dealing with a claim for relief for infringement of a
fundamental right in a petition under Art. 32 the power which is inherent in
its constitution to demand security for costs of the respondent cannot be
exercised, even if the Court is satisfied that such an order is preeminently
called for. It frequently happens that mixed up with pleas of constitutional
invalidity of statutes or executive acts having an impact upon fundamental
rights, allegations of bad faith, arbitrariness, exercise of power for ulterior
purposes and similar allegations are made by litigants resorting to this Court,
and there is no recognised procedure by which investigation of such allegations
of improper conduct may be 910 disentangled from those to be dealt with on a
strictly interpretational plane. The Court has, therefore, to hear the entire
case dealing both with the validity of the statutes or executive acts and the
allegations of improper conduct before it can finally, adjudicate upon the
claim made by the petitioner. If because of the nature of the proceeding
brought before it, the Court is precluded from ordering even in appropriate cases
an applicant for redress to furnish security before exercising his privilege of
prosecuting his claim, the Court would be acting not as a Court of justice but
as an instrument of oppression.
The impugned rule being merely declaratory of
the jurisdiction which is defined by Art. 142 of the Constitution no question
of conflict between law made by the State, and the guarantee of right to move
this Court under Art. 32(1) by appropriate proceedings for enforcement of
fundamental rights arises. The provisions of the Constitution contained in Art.
142 and Art. 32(1) must be read harmoniously. On the one hand there is the
guaranteed right in favour of the litigant by an appropriate proceeding to move
this Court for enforcement of a fundamental right, on the other there is the
jurisdiction vested in this Court to pass all such orders as may be necessary
in the interests of justice such orders including inappropriate cases an order
for payment of costs by the petitioner. There is no warrant for assuming that
the exercise of this jurisdiction has to be subordinated to the exercise of the
right to move this Court. Article 32(1) is included in Ch. III and the right to
move this Court is itself made a fundamental right, whereas Art. 142 falls in
Part V dealing with Union Judiciary. But these being parts of a Constitutional
document no special sanctity attaches to the provisions contained in Ch. III so
as to prevail over the other provisions. In Pandi M.S.M. Sharma v. Shri Sri
Krishna this Court had to consider whether Art. 194 dealing with the powers,
privileges and immunities of (1)  1 S.C.R. 806.
911 the State Legislatures and of their
members was subordinate to fundamental right of speech under Art. 19(1)(a) of
the Constitution. The petitioner in that case urged that rights, powers and
privileges of the members of the House of Commons in England which could be
claimed by the members of the State Legislatures by virtue of Art. 194 had
still to stand the test of reasonableness prescribed by Art. 19(2), and to the
extent of inconsistency the right had to yield before the fundamental right
guaranteed by Art. 19(1). It was held by the Court that Art. 19(1)(a) and Art.
194 have to be harmoniously interpreted and the only method of reconciling the
two is to read the general provision of Art.
19(1)(a) as subject to Art. 194 just as Art.
31 is read as subject to Art. 265. Generality of the provision is not however
the sole criterion. Clause (1) and (2) of Art. 13 render laws either
preexisting or enacted since the Constitution, void if they are inconsistent
with or take away or abridge any fundamental rights. Exercise of legislative
authority under powers derived from the Constitution is undoubtedly hit by Art.
13(2). But one part of the Constitution cannot render nugatory another part :
the two must be read together and harmonized.
So read, the gurantee of the right to move this Court by appropriate
proceedings, for enforcement of fundamental rights cannot be permitted to
encroach upon the jurisdiction of the Court, where exercise thereof is
necessary for doing complete justice. Therefore even in a proceeding under Art.
32(1), this Court is competent to make all such orders as it deems proper
including an order for security for costs of the respondent.
The impugned rule which enunciates the
jurisdiction of the Court to impose terms as to giving of-' security is not
By COURT : In accordance with the opinion of
the majority the writ petition is allowed and the order 912 calling upon the
petitioners to furnish security of Rs. 2,500/is set aside. There will be no
order as to costs.