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Report No. 58

Nature of the remedy under Article 32

4.6. The present position is that if a petitioner makes out a case of violation of his fundamental rights, the grant of the appropriate writ by the Supreme Court under Article 32 is not discretionary, but is a matter of right. In one of the leading cases1 on the subject, Das, C.J., said that neither the existence of an adequate alternative remedy, nor the fact that the petition raised disputed questions of fact, justified the rejection of a petition under Article 32, if it established a prima facie case of actual or threatened violation of fundamental rights. The Chief Justice said that ordinarily, disputed question of fact could be decided on affidavits. In some cases, the court may consider it desirable to allow the parties to put in further affidavits, or may issue a commission, or set down the petition for trial on the evidence, and this had been frequently done on the Original Side of the Calcutta and Bombay High Courts.

1. K.K. Kochunni v. State of Madras, 1956 Supp 2 SCR 316 (326): AIR 1959 SC 334 (336).

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