Author: B.Eeshmitha Ranjani, Dr. B.R. Ambedkar college of law, Andhra University
Edited by: Mansi, University Five Year Law College, University of Rajasthan, Jaipur
A) ABSTRACT / HEADNOTE
Fundamental rights ensure the protection of the people’s interests. Our constitutional makers had adopted fundamental rights from the American Constitution. The constitutional remedies under Article 32 act as a shield for the proper functioning of these fundamental rights. People can directly approach the Supreme Court when their rights under part-III are encroached upon. In this case, the petitioner filed a plea that his fundamental right was breached by a theme the Supreme Court with the power of Article 142. By the said rule, the court has issued orders to furnish him security costs which barred his right to move to the Supreme Court under Article 32. The judges had made keen observations on petitioners’ and respondents’ arguments. So, the court thought that any rule that is contrary to fundamental rights should be held void. Below there was an in-depth explanation of this case.
Keywords: Article 32(1 ), Security for costs, Writ petition, Fundamental rights
B) CASE DETAILS
i) Judgement Cause Title / Case Name: PREMA CHAND GARG V. EXCISE COMMISSIONER, U.P. ALLAHABAD
ii) Case Number: PETITION NO.52 OF 1962
iii) Judgement Date: 6 November 1962
iv) Court: THE SUPREME COURT OF INDIA
v) Quorum / Constitution of Bench: FIVE JUDGE BENCH
vi) Author / Name of Judges: P.B. GANJENDRA GADKAR JUSTICE, SINHA JUSTICE, P. BHUVESHWAR CHIEF JUSTICE, K.N. WANCHOOJUSTICE, K.C. GUPTAJUSTICE, J.C. SHAH JUSTICE.
vii) Citation: 1963 AIR 996
viii) Legal Provisions Involved: ARTICLE 19, 32, 142 (1) AND 145 OF THE INDIAN CONSTITUTION; ORDER 25 RULE 1&2, ORDER 41 RULE 1 OF THE CIVIL PROCEDURE CODE.
C) INTRODUCTION AND BACKGROUND OF JUDGEMENT
Article 32 explains the concept of constitutional remedies, this right is to protect and preserve the fundamental rights of any citizen in India. When any individual rights are violated or misused, then this right comes into the picture. Through these constitutional remedies, one can directly approach the Supreme Court. Along with that under Article 226 a writ petition can placed before the high court too.
HEART AND SOUL OF THE CONSTITUTION-
Dr. B.R. Ambedkar has stated that Article 32 is the “Heart & Soul” of the Constitution. It gives power to every person in India, to question in Supreme Court when there is a violation of anybody’s fundamental rights. There are many Landmark cases such as“Kesvananda Bharati sripadagalvaru Vs. State of Kerala AndAnr, M.C.MehtaAndAnr Vs. Union of India &Ors. (1986), Maneka Gandhi Vs. Union of India (1978)” where writ petitions were filed when fundamental rights of the petitioner are infringed so on. In all these cases supreme Supreme Court’s judgment protects the fundamental rights of Individuals. If any rules violated these rights they were declared by the court as void or invalid. Even Article 13 (2) states that the state should not have any rules or laws in violation of part III of the constitution if made that will be void.
Here in this case, the petitioner stated that his fundamental right to appear in the Supreme Court was violated when the court ordered through the impugned rule to pay security costs. This rule was made with the power vested in the court under Article 142 & Article 145 (f) of the constitution, which explains that the court can impose security costs on the case it is considered necessary. However, the honorable court has given judgment interpreting the significance of preserving the fundamental rights over any other rules even though made with the authority under Article 142. Thus, a petition was allowed by the four judges on the bench, whereas Justice Shahveven had a separate judgment stating tonetoners contention and held that the rule was not void.
D) FACTS OF THE CASE
Prem Chand Garg and 8 Anr., partners of M/s. Industrial Chemical Corporation, Ghaziabad laid down a petition under Article 32 on the matter that orders passed by the excise commissioner, U.P. to furnish payment of security in the sum of Rs. 2,500/- in cash within six weeks. Unable to collect the essential amount, the present petition was filed on March 16, 1962. Here, the petitioner contended that the O.XXXV r.12 Supreme Court Rules, which stated for the payment of security costs was invalid because it opposed the fundamental right to move to the Supreme Court t under article 32(1) of the constitution.
E) LEGAL ISSUES RAISED
- Whether the petitioner’s fundamental right to move to Supreme Court under Article 32 infringed based on the r.12 or not?
- Can any rule made with the power of Article 142 have such an authority to violate fundamental rights?
- Whether the impugned rule retards the assertion or vindication of the fundamental rights of the petitioner?
F) PETITIONER/ APPELLANT’S ARGUMENTS
i) The learned petitioner’s counsel contended that the impugned rule which was subject to furnish the security costs was ultra vires as it curtails the petitioner’s right to move to the supreme court under Article 32(1) of the Indian constitution.
ii) Mr Pathakak representing the petitioner’s counsel, stated the fundamental right Article 32 was an “absolutely absolute” right not having any exceptions unlike the rights guaranteed by Article 19.
iii) To support his contentions, he mentioned the decisions of cases such as Ramesh Thappar v. The State of Madras (1), Chintaman Rao v. The State of Madhya Pradesh, and Kameshwar Prasad v. State of Bihar, explaining the fundamental right to file a writ petition under Article 32 (1) should not be violated using any other rules.
iv) He further stated that, even in the cases where O.25 r. 1 and 2 and O.41 r.10 of c.p.c provisions may commonly apply,the court cannot issue any orders for security costs. And through a test, it should decide by questioning whether the rule assists the assertion or vindication of the fundamental right or does it retard or obstructs it? If it does retard or obstruct the fundamental right of the petitioner by implementing monetary chargers on the petitioner then the rules are said to be bad and, in this case, also this will apply, so the court has no power to make such orders under Article 145 and no jurisdiction make these orders under 142.
G) RESPONDENT’S ARGUMENTS
i. The learned counsel for Respondent has stated that the rule challenged before this court by the petitioner was not invalid as it did not infringe the petitioner’s right. Because the said rule was discretionary. So, according to the circumstances of the case court will impose security costs in those cases where they think it is necessary.
ii. Solicitor general appearing on behalf of the respondent argues that in certain cases security costs can be charged to the petitioner as per the normal rule under O.25 r.1& 2 and O.41 r.10 of the civil procedure code. Same with all the other court courts in this case also the court should treat both the parties in a fair and just manner. If the court decides to impose pecuniary obligation, then the security costs should be paid by the petitioner.
iii. He also suggested adopting the rule of harmonious construction to restore the powers with Article 32 and to determine the broad affection of the provisions Aof rticle 142 & Article 145.
iv. Respondent counsel asked the court to make a comparison between Article 142(1) and Article 194 (3) and interpreted that the powers, privileges and immunities specified by the latter article were not subject to the provision in respect of fundamental rights, same in article 142 also the power specified were subjected to the aforesaid rights and in favor his argument he had relied on the case named Pandit M.SM Sharma vs, Shri Krishna Sina
H) RELATED LEGAL PROVISIONS
“ Constitution of India,1950
Article 32- Remedies for enforcement of rights conferred by this Part
(1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(4)The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”
“Article 142- Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc
(1)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, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2)Subject to the provisions of any law made on this behalf by Parliament, the Supreme Court shall, as respect the whole of the territory of India, have all and every power to make any order to secure the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself”.
“Article 145-Rules of court, etc.
(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from ltimeto time,
(2) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein. ”
Civil Procedure Code,1908
“Order 25 of CPC-
Rule 1: When security for costs may be required from plaintiff
(1)At any stage of a suit, the Court may, either of its motion or on the application of any defendant, Order the plaintiff, for reasons to be recorded to give within the time fixed by it security for the payment of all costs incurred and likely to be incurred by any defendant:
Provided that such an Order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property with India other than the property in suit.
(2) Whoever leaves India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule (1). ”
“Rule 2: Effect of failure to furnish security
(1) In the event of such security not being furnished within the time fixed, the Court shall make an Order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.
(2) Where a suit is dismissed under this rule, the plaintiff may apply for an Order to set the dismissal aside and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to the security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(3) The dismissal shall not be set aside unless notice of such application has been served on the defendant ”
“Order 41 of CPC
Rule 10: Appellate Court may require the appellant to furnish security for costs
(1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterward on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or both ”
I) JUDGEMENT
RATIO DECIDENDI
The judgment of Sinha ( C.J.), Gajendragadkar, Wanchoo and das Gupta JJ., was held as follows when the petitioner filed a petition for impeaching the validity of the order passed by the excise commissioner refusing permission to distillery supply of power alcohol to the petitioner the court considered this petition and rule was ordered by the court to be issued to the respondents. When the rule was issued, the court directed to deposit a security of 2,500/- in cash within six weeks. Since 1959, this order treated as a condition for passing rule Nisi to charge the respondent in the court.
But the petitioner unable to collect the requisite amount, then filed the present petition contending the impugned rule to furnish the security costs was ‘ultra vires’ as it violated the fundamental right i.e., the right to move to the Supreme Court under Article 32(1). This right has a very pivotal role that (4) in Article 32 mentioned that this right shall not be suspended except as provided by the constitution. It is a guaranteed right to the citizens of India. The right to move the Supreme Court is such a right that it cannot be circumscribed or impaired on any ground. In the case Vide state of Madras Vs. V.G. Row it was held that the court must act in the role “Of a sentinel on the quit vive” and in Vide Daryao Vs. The State of U.P., the court must regard its dignified duty to safeguard fundamental rights zealously and vigilantly.
As said by the petitioner even though in the case where there court can implement O.25 r. 1&2 and O.41 r.1 of the civil procedure code it was contended that the court should figure out in which case security costs can be furnished from the petitioner, a test was proposed by petitioner which was, to question whether the rule aid or assist the assertion or vindication of the fundamental right or does retard or obstructs it? It was figured out that if that particular rule was placing a pecuniary obligation on the person, then the following rule should be considered to be invalid, here in this statement court observed that the impugned rule didn’t aid or assist the assertion or vindication of the fundamental right of the petitioner under article 32, keeping in view these points the court had said that the impugned rule is declared to be void in the present petition.
In support petitioner’s oner argument, he relied on the case Cape of Kavalappara Kottarathil KochunniMoopil Nayar V. The State of Madras to explain the wide scope and effect of Article 32. Although the court has the discretionary power to impose security costs in the cases as it may deem fit, it cannot issue security costs infringing the fundamental rights under Article 32 of the Constitution. Articles 142(1) and 145 have given the Supreme Court power to pass any order to do justice to both parties to the case. However, the apex court cannot make rules or orders contrary to the Fundamental right guaranteed under Article 32.
Also, the court observed the past decade’s statistical data of the petitions filed by the people under Article 32, mostly when their fundamental right under Article 19 (1) (f)& (g) was violated. The respondent represented by the solicitor general had argued that the court under Article 142 has very wide and discretionary power to do justice to both parties. The court can impose security costs on the parties which, it thinks is necessary. And to view Articles 142 and 194 with the rule of harmonious construction. He relied on cases such as Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha and others &K.M. Nanavati vs. State of Bombay. But the court observed if any rule imposing financial liability thresholding the petitioner and benefiting the respondent, such rule should be struck down so, keeping this view, the court has declared Rule 12 to be invalid. Setting aside the order to furnish the security costs of 2,500/- on the petition was allowed at last.
Now a separate judgement was declared Shah J,held thats contended by the petitioner counsel the court order to furnish the security costs under the impugned rule does oppose his right to approach the Supreme Court under Article 32 (1) when there was encroachment of his fundamental right. Besides, Article 142 confers the power to issue any decree or order and make rules in certain cases where court believes it was necessary to do proper justice for both the parties. As said before;to do justice, court has power to imposed security costs, this will not amount to violation of the fundamental rights of the petitioner. According to case refer Pandit M.SM Sharma vs, Shri Krishna Sinha it was that article 142 and Article 32 should be read with harmony.
J) CONCLUSION& COMMENTS
The constitutional remedies were providing protection for the people to a major extent when their fundamental rights were curtailed. Article 32 is really an “Absolutely absolute” right as stated by the petitioner. Whereas, in the judgment of Justice Shah, we can observe he held that the impugned rule was not void , because the honourable court having discretionary power under Article 142, it will impose security costs only when the court thinks it was necessary.
K) REFERENCES
a.Important Cases Referred
i) ‘Ramesh Thappar vs The State Of Madras (1950) AIR 124’.
ii) Shri Chintaman Rao & Another vs The State Of Madhya Pradesh (1958) AIR 118.
iii) Kameshwar Prasad And Others vs The State Of Bihar And Another (1962) AIR 1166.
iv)State Of Madras vs V.G. Row.Union Of India & State (1952) AIR 196 .
v)Daryao And Others vs The State Of U. P. And Others (1961) AIR 1457.
vi)Kavalappara Kottarathil Kochuni And … vs The State Of Madras And Others (1960) AIR 1080.
vii)Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha And Others AIR 1166.
b. Important Statutes Referred
i) The Constitution Of India
ii) Civil procedure code,1908
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