179

CHAPTER-S
THEENFORCEMENTOFFUNDAMENTAL
RIGHTS OF THE INDIVIDUAL AGAINST
THE STATE AND PRIVATE BODY

I. Fundamental Rights Against Private bodies

The Private sector undertakings and private corporations, national and

multinational should be treated as "the State" in certain situations, so as to
make them subject to fundamental rights. Here it must be pointed out at the
outset that the guarantee of fundamental rights is essentially a device whereby
the autonomy of an individual is protected from encroachment by those who
have power and capacity to do the same. Since the governing power rests with
the state, possibility of the encroachment has traditionally been from the State.
This is the reason that fundamental rights have bbeen sought and given against
the State. Protection of an individual against another individual is mainly the
concern of ordinaty law to be made and enforced by the state in exercise of its
governing power. But this governing power cannot be so exercised as to dictate
to the individual to .do or not to do certain things in certain spheres of their
life. Within his proctected domain a private party has the freedom of choice,
freedom to act according to his likes and dislikes and even according to his
prejudices and ideosyncracies. This one may do inespective of the fact that
such a selfish or irrational act may harm or even ruin another person or party.
An attitude of sympathy and cooperation towards one's fellow citizens in an
ideal which is not allowed to be achieved by legal coercion beyond a certain
point. This is the essence of personal liberty and nothing to be said hereinafter
is meant to negate this basic postulate.

But in certain circumstances an act of a private party begins to resemble

the act of a public authority and private right begins to look like public power.
This may happen because of, (i) Governmental nexus and assistance to the
private act; or (ii) concentration of economic power; or (iii) the simple fact
 180

that the private party has control over something which is indispensable for
the ordinary living of other individuals. The circumstances may be diverse,
but, the essence of the matter is that it is possible for a private party to exercise
control over the lives and fortunes of others in vital matters and here it is only
reasonable to suggest that in such circumstances the party should be required
to observe the same norms as a public authority. In other words, in those
circumstances the private pm1y should be treated as "the State" and subjected
to the discipline of fundamental rights. The determination of exact
circumstances in which a private party should be treated as a public authority
may be a question of detail which may have to be worked as a public authority
may be a question of detail.which may have to be worked out from case to
case in the context of specific facts present there. It is also possible that there
may be borderline cases where opinions of the judge concerned but also by
prevailing needs and philosophy of the time which are themselves changeable.
But what can be said safely is that now the time has come when the meaning
of the term "the State" in article 12 of the Constitution should be giyen broader
interpretation so as to include those sections of the private sector whose
governing and controlling power over the ordinary multitude in
indistinguishable from that of public authorities properly so called. If this is
not done, the changes contemplated to be brought about by the new economic
policy would make this part of the constitutional law of India look at variance
from the realities of politico - economic life of India in the 21st century.

Since the above change has been advocated with the assumption that
the same can be brought about by judicial innovation, the following submissions
are made with a view to help advancing the interpretation on the subject within
braod parameters of existing doctrinal framework.

First, many areas of the private sector can be covered under the existing
agency and instrumentality test. The six indices of this test mentioned above
which have so far been adumbrated by the court, are actually relevant mainly
in relation to public sector undertakings and it is in the context of these
undertakings that the above guidelines were laid down. But, here the essence
of the matter is that there should be evidence of governmental nexus with the
 181

private activity. This can be in the form of governmental assistance,

collaboration or intetference. The governmental assistance may take the form
of, (i) tax concession, (ii) grant of monopoly; (iii) fmancial assistance; (iv) the
power of eminent domain; or (v) any other way in which meaningful assistance
may be given. Joint ventures or joint ownership of an undettaking will definitely
come in the category of govemmental collaboration. Since some governmental
regulation. This may be indicative of the special importance which the
government gives to that activity. This leads us to take note of another type of
governmental nexus, which may be found even without any governmental
assistance or collaboration. The private sector may undertake activities which
may be of such public and general importance that they are generally allowed
to be undertaken only by the government, and therefore, the principle should
be applied that a private party doing the same job must do it subject to the
same conditions as the government. Here public utilities readily come to mind
as an example. This means that many private sector units can be subjected to
fundamental rights by the agency and instrumentality test itself.

Second, industrial giants, national and multinational corporations can

be held to be " the State" and subjects to fundamental rights on the ground
that the property and business they own enable them to control the lives and
fortunes of a host of people including the employees, distributors, retailors,
consumers and in a way the community itself. Renner pointed out very early
that private law institutions performed public law functions and the need was
to recognise the reality so that power and responsibility could be combined
together. 1 Miller and Friedman have drawn our attention to the same
phenomenon. Millar has said that the need was for protection against the
goveming power and this should be available against every entity or sector
where the goveming power was in fact located2 • Similarly Friedman has pointed
out that now the group power was gaining ascendancy over the state and in

1. Karl Renner, The Institutions ofPrivate Law and Their Social Functions. (1949).
2. ArthurS. Miller, "The Constitutional Law of the Society State", 10 Stan. L. Rev. 620
(1958)
 182

this category he mentions organised industry and labour. 3 He also feels the
need for the rule of law to be consistent with this new reality.

Third, framers of the Indian Constitution have themselves settled the

issue that the need for the guarantee of fundamental rights can be as important
against private parties as against the state. It is a different matter that at the
time of the framing of the Constitution this need was perceived to be limited
only to some kinds of cases. Thus article 15 (2) guarantees that no citizen
shall be discriminated against on the ground of religion, race, caste, sex or
place of birth with regard to "(a) access to shops, public restaurants, hotels
and places of public entertainment, or (b) the use of wells, tanks bathing ghats,
roads and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public." Article 17 declares the
untouchability is abolished and its practice in any form is forbidden. Article
23 prohibits traffic in human beings and beggar and other forms of forced
labour. By article 24 employment of a child below the age of 14 years in any
factory or mine or his engagement in any other hazardous employment is
prohibited. Article 28(3) provides that a person attending an educational
institution recognised by the State or receiving aid out of state funds shall not
be required to participate in any religious instruction without his consent or
that of his guardian in case he happens to be a minor nor shall he be required
to attend any religious worship there without such consent. Lastly, article 29(2)
guarantees that a citizen shall not be denied admission to a state recognised or
state aided educational institution on grounds only of religion, race, caste,
language or any of them.

The above provisions can be said to have been progressive according

to the standards prevailing at the time when the Constitution was framed and
adopted. But our experiences during the last four decades and more have amply
demonstarted that they do not go far enough and in the years to come their
inadequacy will be further felt. Thus article 15(2) prohibits discrimination on

3. W. Friedman, "Corporate Power, Government by Private Groups, and the law" , 57

Colum. L. Rev. 155 (1957).
 183

certain grounds in specified matters. But what is needed is the guarantee of

general right to equality against the private sector when it assumes controlling
power and begins to look like " the State". To take only one example, the
supreme Court in Maruti Udyog, 4 implicity recognised that the manufactures
could not give preferential treatment to a few customers unless they satisfied
the standards of reasonable classification. If so, the same principle should
logically apply to Hindustan Motors and Premier Automobiles and any
distinction based on public sector and private sector dichotomy would be totally
irrational and illogical. Similarly, a person attending a private educational
institution and living in a hostel needs to be given not only the negative right
not to be forced to participate in any worship or religious instruction, a right
which article 28(3) guarantees, but also needs the positive right to practise his
religion in a reasonable manner in that institution without any let or hindrance.
Again, the basic interests of a student are not limited merely to getting admission
without any discrimination, in the institution he can also claim the right of
freedom of expression and association. Indeed, both the teachers and students
can claim their basic right of academic freedom. Though the existing decisions
are not conclusive one way or the other on the issue, 5 it is respecfully submitted
that the elements of state aid, recognition and regulation should be enough to
establish governmental means so as to enable the court to hold that private
educational institutions are "the State".

II. Fundamental Rights in modern democratic thinking

Since the 17th Century, if not earlier, human thinking has been veering
round to the theozy that man has certain essential, basic, natural and inalienable
rights or freedoms and it is the function of the State, in order that human
liberty may be preserved, human personality developed and an effective social
4. Ashok Kumar Mittal V. Maruti Udyog (1986) 2 SCC 293.
5. The relief was granted in Manmohan Singh Jaitla v. Com1m: Union Territory of
Chandigarh, (1984) Supp. S.C.C 540; Francis John v. Director of Education, (1989)
Supp, (2) SCC 598; Master Vibhu Kapoor v. Council of Indian ·School Certificate
Examination, A.I.R. 1985 Del. 142 (F.B). It was refused in Executive Committeee of
Vaish Degree College, Shamli v. Laxmi Narain, (1976) 2 SCC. 58.
 184

and democratic life promoted, to recognise these rights and freedoms and
allows them a free play.

The concept of human rights can be traced to the natural law

philosophers, such as, Locke and Rousseau. The natural law philosophers
philosophized over such inherent human rights and sought to preserve these
rights by propounding the theory of"social contract." 6

According to Locke, man is bmn "with a title of perfect freedom and

an uncontrolled enjoyment of all the rights, and privileges of the Law ofNature"
and he has by nature a power "to preserve his property - that is, his life, liberty,
and estate, against the injuries and attempts of other men." 7

The Declaration of the French Revolution, 1789, which may be regarded

as a concrete political Statement on Human Rights and which was inspired by
the Lockeian philosophy declared :

"The aim of all political association is the conservation of the natural

and inalienable rights of man."

The concept of human rights protects individuals against the excesses

of the State. The concept of human rights represents an attempt to protect the
individual from oppression and injustice. In modern times, it is widely accepted
that the right to liberty is the very essence of a free society and it must be
safeguarded at all times. The idea of guaranteeing certain rights is to ensure
that a person may have a minimum guaranteed freedom.

The underlying idea in entrenching certain basic and Fundamental

Rights is to take them out of the reach of transient political majorities.

It has, therefore, come to be regarded as essential that these rights be

entrenched in such a way that they may not be violated, tampered or intetfered
with by an oppressive government. With this end in view, some written
constitutions guarantee a few rights to the people and forbid governmental

6. Lloyd, Introduction to Jurisprudence, 117-123, 159 (1985)

7. Extracts from Locke two treaties of Government.
 185

organs from interfering with the same. In that case, a guaranteed right can be
limited or taken away only by the elaborate and formal process of constitutional
amendment rather than by ordinary legislation. These rights are characterised
as Fundamental Rights.

The entrenched Fundamental Rights have a dual aspect. From one point
of view, they confer justiciable rights on the people which can be enforced
through the courts against the government . From another point of view, the
Fundamental Rights constitute restrictions and limitations on government
action, whether it is taken by the Centre, or a State or a local government. The
government cannot take any action, administrative or legislative, by w;hich a
Fundamental Rights is infringed.

Entrenchment means that the guaranteed rights cannot be taken away

by an ordinary law. A law curtailing or infringing an entrenched right would
be declared to be unconstitutional. If ever it is deemed necessmy to curtail an
entrenched right, that can only be done by the elaborate and more formal
procedure by way of a constitutional amendment. As the Supreme Court has
obsetved, 8 the purpose of enumerating Fundamental Rights in the Constitution
"is to safeguard the basic human rights from the vicissitudes of political
controversy and to place them beyond the reach of the political parties who,
by virtue of their majority, may come to form the govemment at the Centre or
in the State".

The modem trend of guaranteeing Fundamental Rights to the people

may be traced to the Constitution of the U.S.A. drafted in 1787.

The U.S. Constitution was the ftrst modem Constitution to give concrete
shape to the concept of human rights by putting them in to the Constitution
and making them justiciable and enforceable through the instrumentality of
the courts.

The original U.S Constitution did not contain may Fundamental Rights.

8. Chairman, Rly. Boardv. Chandrima Das, AIR2000 SC 998,997.

 186

There was trenchant criticism of the Constitution on this score. Consequently,

the Bill of Rights came to be incorporated in the Constitution in 1791 in the
form of ten amendments which embody-the Lockeian ideas about the protection
of life, liberty and property. 9

The nature of the Fundamental Rights in the U.S.A. has been described
thus: "The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the reach
of majority and officials, to establish them as legal principles to be applied by
the comts. One's right to life, liberty, and property, to free speech, a free press,
fi"eedom of worship and assembly and other Fundamental Rights may not be
submitted to vote; they depend on the outcome of no elections. " 10

In modem times, the concept of the people's basic rights has been given
a more concrete and universal texture by the Charter of Human Rights enacted
by the United Nations Organisation (U.N.0), 11 and the European Convention
on Human Rights. 12 The principle ot the· Universal Declaration ofHuman Rights
inter alia declares:

Whereas recognition of the inherent dignity and of the equal

and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world.

The General Assembly of the United Nations Organisations adopted

the Universal Declaration of Human Rights on Dec. 10, 1948. This document
has proved to be a mere declaration without any teeth. The Charter has so far
remained merely a formal document without any measures having been taken
to facilitate the realization of the basic freedoms and the human rights which
the document contains.

9. B. Bailyn, Ideological Origins of the American Revolution, (1967)

10. Justice Jackson in West Verginia State Board of Education v. Barnette, 319 U.S. 624.
11. Ian Brownlie, Basic Documents ofHuman Rights (1971)
12. For trends in the present day Africa in the area of human rights, see, D.O Ahic, Neo-
Nigerian Human Rights in Zambia : A Comparative Study with some countries in
Aji-ica and West Indies, 12 J.I.L.I. (1970) at 609.
 187

The concept of Fundamental Rights thus represents a trend in the modern

democratic thinking. The enforcement of human rights is a matter of major
significance to modetn constitutional jmisprudence. The incorporation of
Fundamental Rights as enforceable rights in the modem constitutional
documents of natm·a~ law and natural rights.

For sometimes now a new trend is visible in India viz. to relate the
Fundamental Rights in India to the International Human Rights. While
interpreting the Fundamental Rights provisions in the Indian Constitution, the
Supreme Court has drawn from the International Declarations on Human
Rights, 13 The Supreme Court, for example, has made copious references to
the Universal Declaration of Human Rights, 1948, and observed :

The applicability of the Universal Declaration of Human

Rights and ptinciples thereof may have to be read, if need be,
into the domestic jurisptudence". 14 There is no formal
declaration of people's Fundamental Rights in Britain. The
orthodox doctiine of the Sovereignty of Parliament prevailing
there does not envisage a legal check on the power of
Parliament which is, as a matter of legal theory, free to make
any law even though it abridges, modifies or abolishes any
basic civic right and liberty of the people. The power of the

13. The Supremen Court of India has frequently drawn from the Declaration of Human
Rights to define the scope and content of the Fundamental Rights in India: for example:
Maneka Gandhi v. Union of India, AIR 1978 SC 597; MH. Hoskot v. State of
Maharashtra, AIR 1978 SC 1548; Randhir Singh v. Union of India, AIR 1982 SC
819;D.K Basu v. Union oflndia, AIR 1997 SC 610; Vishaka v. State ofRajasthan AIR
1997 SC 3011; People's Union for Civil Liberties v. Union ofIndia (1997) 1 SCC 759;
Chairman, Rly Board v.Chandrima Das, AIR 2000 SC 988; Madhu Kishwar v. State of
Bihar, AIR 1996 SCat 1869, the Supreiii:e Court referred to the Declarations on "The
Right to Development" adopted by the UN General Assembly on December 4, 1986,
and also to Vienna Conventions on the Elimination of all forms of Discrimination against
women (CEDAW) ratified by the UNO on Dec. 18, 1979.
See also, People's Union for Civil Liberties v. Union oflndia, AIR 1997 SC 568, 575.
14. Chairman, Railway Boardv. Chandrima Das, AIR 2000 SC 988 at 997.
 188

executive is however limited in the sense that it cannot

interfere with the rights of the people without the sanction of
law_IS

There prevails in Britain the concept of Rule of Law which represents,

in short, the thesis that the executive is answerable to the courts for any action
which is contrary to the law of the land. Ru1e oflaw constitutes no legal restraint
on the legislative power of Parliament and thus, cannot be equated to the
concept of Fundamental Rights.

Until1998, the protection of individual freedom in Britain, .therefore,

rested not on any constitutional favouring individual liberty and the Parliament
form of government. British lawyers often questioned the very basis of the
theory of declaring basic civil rights in a constitutional document.

The British Model could not be duplicated elsewhere. The fact remains
that Britain is a small and homogenous nation, having deep-rooted democratic
traditions. But these conditions do not prevail in other countries which are
composed of diverse elements, having no deep-rooted traditions of individual
liberty, and which, therefore, face very different problems from those of Britain.

Even in Britain, there was an ever growing realisation that guaranteed

civil rights do serve a useful purpose and that Britain should also have a written
Bill ofRights. 16 Britain had accepted the European Charter on Human Rights. 17

15. Lord Atkin in Eshugbayi v. Govt. ofNigeria, 1931 A. C. 662.

16. Hood Philips, Canst. and Adm. Law, 40 438 (1978); also, Reform of the Constitution
(1970); De Smith, Canst. And Adm. Law, 439 (1977); Scarman, English Law- The New
Dimension; Anderson, On Liberty Law and Justice (1978).
On July, 7, 75, a resolution was moved in the House of Commons demanding that En
gland should have a Bill of Rights. There is some opposition as well in academic circles
to having a Bill of Rights; See Yardley, Modern Constitutional Developments : some
reflections. 1975 Pub. Law 197 : Lloyd, Do we need A bill of Rights? M.L.R. 121
(1976) : H.W.R. Wade, Constitutional, Fundamentals, 24-40 (1980).
See also, Report of Select Committee on a Bill of Rights (House of Lords , 1978).
17. There have been some cases in Britain in this area: Waddington v. Miah, (1974) 1
W.L.R. 613 ; R v. Secretary ofState for Home Affairs exp. Bhajan Singh, (1975) 2 All
ER 1081;Bulmer Ltdv. Bollinger, S.A. (1974) 2 AllER 1226.
 189

But this was not good enough because the Charter did not bind Parliament but
could be used only to interpret the local law. The feeling was that law made by
Parliament was in essence law made by the House of Commons. This in
practice, meant that a government having support of a majority in the House
(though it had the support only of a minority of electorate), could often force
through whatever legislation it desired. What was, therefore necessruy was a
Bill of Rights which could curb parliamentary legislative power.
The Australian Constitution, following the traditions of Britain, does
not have a Bill of Rights but guarantees only a few rights, e.g., freedom of
religion. 18
In a federal country, the problem becomes more complicated as there
may be attacks on individual liberty and freedom not only at the Central level,
but even at the State level.
In the modem era, it has become almost a matter of course to prescribe
formally the rights and liberties of the people which are deemed worthy of
protection from government interference. The wide acceptance of the notice
that a formal Bill of Rights is a near necessity in the effective constitutional
government arises, to some extent, from a feeling that mere custom or tradition
alone cannot provide to the Fundamental Rights the same protection as their
importance deserves. "The unique English situation is not simply exportable,
and other nations have generally felt that their governments need the constant
reminder which a Bill of Rights provides, while their people need the
reassurance which it can supply." 19 •
An outstanding example of this trend in Canada can be reffered in this
context To begin with, the Canadian Constitution had only a few guaranteed
Rights. 20 Then, the Canadian Parliament enacted a law laying down basic Rights
of the People. 21

18. S. 116 of the Australian Constitution.

19. Bowie, Studies in Federalism, 567, 601.
20. Ss. 93 and 133 of the British North America Act.
21. See The various articles on the subject in 37 Can. B.R. 1-217 (1959). Also Auburn,
Canadian Bill of Rights and Discriminatory Statutes, 86 LQR 306 (1970); WalterS.
Tranopolsky, The Canadian Bill ofRights (1975).
 190

III. Protection of Fundamental Rights in India

In India, afew good reasons made the enunciation of the Fundamental
Rights in the Constitution rather inevitable. For one thing, the main political
party, the Congress, had for long been demanding these Rights against the
British rule. Dming the British rule in India, hmnan rights were violated by
the tulers on a very wide scale. Therefore, the farmers of the Constitution,
many of whom had suffered long incarceration during the British regime, had
a very positive attitude towards these rights.

Secondly, the Indian society is fragmented into many religious, cultural

and linguistic groups, and it was necessary to declare Fundamental Rights to
give to the people a sense of security and confidence. Then, it was thought
necessary that people should have some Rights which may be enforced against
the government which may become arbitary at times. Though democracy was
being introduced in India, yet democratic traditions were lacking, and there
was a danger that the majority in the legislature may enact laws which may be
oppressive to individuals or minority groups, and such a danger could be
minimised by having a Bill of Rights in ~e Constitution.

The need to have the Fundamental Rights was so very well accepted
on all hands that in the Constituent Assembly, the point was not even considered
whether or not to incorporate such Rights in the Constitution. In fact, the fight
all along was against the restrictions being imposed on them and the effort all
along was to have the Fundamental Rights on as broad and pervasive a basis
as possible. 22

Articles 12 to 35 of the Constitution pertain to Fundamental Rights of

the people. These Rights are reminiscent of some of the provisions of the
Bills of Rights in the U.S Constitution declares the Fundamental Rights in
broad and general terms. But as no rights is absolute, the courts have, in course
of time, spelled out some restrictions and limitations on these Rights. The
Indian Constitution, however, adopts a different approach in so far as some

22. Granville Austin, The Indian Constitution: Cornerstone ofa Nation, 50-113 (1966).
 191

Rights are worded generally; in respect of some Fundamental Rights, the

exceptions and qualifications have been fmmulated and expressed in a
compendious form in the Constitution itself, while in respect of some other
Rights, the Constitution confers power on the Legislature to impose limitations.
The result of this strategy has been that the constitutional provisions pertaining
to Fundamental Rights have become rather detailed and complex.

The framers of the Indian Constitution, learning from the experiences

of the U.S.A., visualized a great many difficulties in enunciating the
Fundamental Rights in general terms and in leaving it to the courts to enforce
them, viz, the Legislature not being in a position to know what view the courts
would take of a particular enactment, the process oflegislation become difficult;
there arises a vast mass of litigation about the validity of the laws and the
judicial opinion is often changing so that law becomes uncertain; the judges
are irremovable and are not elected; they are, therefore, not so sensitive to
public needs in the social or economic sphere as the elected legislators and so
a complete and unqualified veto over legislation could not be left in judicial
hands. 23

IV. The Supreme Court as protector and guarantor of Fundamental

Rights

Supreme Court is the guardian of our Constitution. For the enforcement

of fundamental rights it is most important to discuss about articles 32 and 226.

(i) Article 32

A right without a remedy does not have much substance. The

fundamental Rights guarenteed by the Constitution would have been worth
nothing had the constitution not provided an effective mechanism for their
enforcement.

Art 32 (1) guarantees the right to move the Supreme Court, by

23. B.N. Rau,Indias Constitution in the Making 245.

 192

appropriate proceedings, for the enforcement of the Fundamental Rights

enumerated in the Constitution. Art 32(2) empowers the Supreme Court to
issue appropriate orders ordirections, or writs including writs in the nature of
hebeas corpus, mandamus, prohibition, quo warranto, and certiorari, which
ever may be appropriate, for the enforcement of the petitioner's Fundamental
Rights.

Under Clause (2) of Article 32 the Supreme Court is empowered to

issue appropriate directions, orders or Wiits, including writs in the nature of
habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the
enforcement of any fundamental rights guaranteed by Part III of the
Constitution. By this Article the Supreme Court has been constituted as a
protector and guarantor of fundamental rights conferred by Part III. Once a
citizen has shown that there is infiingement of his fundamental right the comt
cannot refuse to entertain petitions seeking enforcement of fundamental rights. 24
In discharging the duties assigned to protect fundamental rights the Supreme
Comt in the words of Patanjali Sastri, J. has to play a role of a sentinel on the
qui vive. 25 Again, in Daryo v. State ofU.P., 26 the Supreme Court took it as its
solemn duty to protect the fundamental right zealously and vigilantly.

Scope of Clause (2) of Art. 32.- The language used in Art. 32 (2) is
very wide. The power of the Supreme Comt is not confined to issuing only
writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto
27
and certiorat.i, but any direction or order or writ whichever is appropriate to
enforce the fundamental rights, nor it is bound to follow all the procedural
technicalities, attached to it is English law. These rights are all of English
origin. The Supreme Court of India may ~nly issue the above writs but also
directions, order or writs, similar to the above so far as to fit in with any
circumstances peculier to India. The Supreme Court is not bound to follow
the procedm·al techinicalities of English law. However, it has been held that in

24. Romesh Thapper v. State ofMadras, AIR 1950 SC 124 at p. 126.

25. State ofMadras v. VG. Row, AIR 1952 SC 196.
26. AIR 1961 SC 1457 at p. 1461.
27. RashidAhmadv.Municipal Board, Kairana, AIR 1950 SC 163.
 193

granting these writs it will follow the broad and fundamental principles that
28
regulate its exercise in English law. In T. C. Basappa v. T. Nagappa, the
Supreme Court said:

In view of the express provisions in our Constitution we need

not now look back to the early history of the procedural
technicalities of these writs in English law, not feel
oppressed by the difference of change of opinion expressed
in particular cases of Judges, we can make an order or issue a
writ in the nature of cettiorari, in all appropriate cases and
in appropriate manner. So long as we keep to the broad
and fundamental principles that regulate the exercise of
jurisdiction in the matter of granting such writs in English
Law.

Thus, the wording of Article 32 (2) is so elastic that it petmits all

necessary adaptation without legislative sanction from time to time so as to
enable effective enforcement of the fundamental rights. Even if a proper writ
has not been prayed for by the petitioner in a case his application cannot be
•
thrown out. Article 32 petmits large discretion to the Supreme Court to give
the appropriate relief. The court can frame such writs as the exigencies of a
particular case demand.

Art 13 is the key provision as it makes fundamental rights justiciable.

Art 13 confers a power and impose a duty and an obligation on the course to
declare a law void if it is inconsistent with a fundamental rights. This is a
power of great consequence for the courts. The supreme court has figuratively
characterised this role of the judiciary as that of a "sentinel on the qui vive" 29 •
Art 32 confers power on the Supreme Court to enforce the Fundamental Rights.

Art 32 (3) empowers Parliament by law ot empower any other court to

exercise within the limits of its tenitorial jurisdiciton all or any of the powers

28. AIR 1954 SC 440.

29. State ofMadras v. V.G. Row, AIR 1952 SC 196
 194

exercisable by the Supreme Court under Art 32(2). This can however be done
without prejudice to the Supreme Court's powers under Arts. 32 (1) and (2).

According the Art 32(4) the right guaranteed by Art 32 "shall not be
suspended except as otherwise provided for by the Constitution."

Right of access to the Supreme Court under Art. 32 is a fundamental

Rights itself. 30 Art 32 ( 1) provides a very important safeguard for the protection
of the fundamental Rights of the citizens of India. Article 32 provides a
guaranteed, quick and summary remedy for enforcing the Fundamental Rights
because a person can go straight to the Supreme Comt without having to
undergo the dilatory process of proceeding from the lower to the higher court
as he has to do in other ordinary litigation.

The Supreme Court has thus been consituted into the protector and
guarantor of the Fundamental Rights. Commenting on the solemn role entrusted
to itself by Alt. 32, the Supreme Court has observed in Daryao v. State of
Uttar Pradesh: 31

The Fundamental Rights are intended not only to protect

individuals's right but they are based on the high public
policy. Liberty of the individual and the protection of the
Fundamental Rights are the very essence of the democratic
way oflife adotped by the Constitution, and it is the privilege
and the duty of this court to uphold those rights. This court
would naturally refuse to circum scribe them or to curtail
them except as provided by the Constitution itself.
32
The court has emphasized in Romesh Thappar that "this Comt is
thus constituted the protector and guarantor of the Fundamental Rights and it
cannot consistently with the responsible so laid upon it, refuse to entertain

30. Bodhisattwa v. Subhra Chakraborty AIR 1996 SC 922, 926 ; Common Cause, a
Registered Society v. .Union ofIndia, AIR 1999 SCat 3020.
31. AIR 1961 SC 1457 at 1461.
32. Romesh Thappar v. State ofMadras, AIR 1950 SC 124.
 195

applications seeking protection against infringement of such rights."

Under Article 32, the Supreme Comt enjoys a broad discretion in the
matter of framing the writs to suit the exigencies of the particular case and it
would not throw out the application of the petitioner simply on the ground
that the proper writ or direction has not been prayed for. 33 The Comt's power
is not confmed to issuing writs only, it can make any order including even a
declaratory order, or give any direction, as may appear to it to be necessary to
34
give proper relief to the petitioner.

It is meaningless to confer fundamental rights ·without providing and

effective remedy for their enforcement, if and when they are violated. "A
right without a remedy is a legal conundrum of most grotesque Kind." Art 32
confers one of the 'highly cherished rights. ' 35

The pm-pose for which Art. 32 can be invoked is to enforce Fundamental

Rights. Violation of a Fundamental Right is a sine qua non of the exercise of
the right confened by Art. 32. 36

The Supreme Court has described the significance of Art 32 in the

following words in Prem Chand Garg v. Excise Commissioner, UP. 37 (Per
Gajendragadkar, J.):

The Fundamental Right to move this Comt can therefore be

appropriately described as the cornerstone of the democratic
edifice raised by the Constitution. That is why it is natural
that this court should regard itself 'as the protector and
guarantor of Fund mental 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 . .... In discharging the duties

41.
I

33. Chiranjit Lal v. union ofIndia, AIR 1951 SC

34 Kochunni v. State ofMadras, AIR 1959 SC 7z!5, 733.
I
35. The Fertilizer Cmporation case, AIR 1981 SC 344, 347.
36. Federation ofBar Association in Karnataka v. Union ofIndia, AIR 2000 SC 2544.
37. AIR 1963 SC 996.
 196

. assigned to it, this court has to play the role of a 'sentinel of

the qui vive' and it must always regard it as its solemn duty to
protect the said Fundamental Rights 'zealously and
vigilantly'. 38

(ii) Article 32 Enforces Fundamental Rights

As stated above, Art 32 can be invoked only when there is a infringement

of a Fundamental Rights. The Supreme Court has laid emphasis on this aspect
of Art 32 as follows:

It is well-settled that, the jurisdiciton conferred on the Supreme

Courtunder Alt 32 is an important and integral part of the
Indian Constitution but violation of a Fundamental Right is
the sine qua non for seeking enforcement of those rights by
the Supreme Court. In order to establish the violation of a
fundamental Right the court has to consider the direct and
inevitable consequences of the action which is sought to be
enforced. 39

In order to enforce a Fundamental right, judicial review of

administrative, legislative and governmental action or non-action is pennissible.
But, AI13 2 cannot be invoked simply to adjudge the validity of any legislation
or an administrative action unless it adversely affects petitioner's Fundamental
Rights. 40

The Supreme Court under Art. 32 ( 1) can, while considering a petition

for the enforcement of a Fundamental Rights, declare an Act to the ultra vires,
or beyond the competence of the enacting legislature, if it adversely affects a
Fundamental Right.

Where an enactment, as soon as it comes into force, affects the

38 .. Ibid, at 999.
39. Hindi Hitrashak Samiti v. Union ofIndia, AIR 1990 SC 851 .
40. Shantabai v. State ofMaharashtra, AIR 1958 SC 532.
 197

Fundamental Rights of a person by its very terms and without any further over
act being done, the person prejudicially affected is entitled immediately to
invoke Art. 32 and get a declaration as to the invalidity of the impugned Act. 41

(iii) Alternative Remedy

Article 32 is in itself a Fundamental Right and, therefore, the existence

of an alternative remedy is no bar to the Supreme Court entertaning a petition
under Article 32 for the enforcement of a Fundamental Right.

When once the Court is satisfied that the petitioner's Fundamental Right
has been infringed it is not only its right but also its duty to afford relief to the
petitioner, and he need not establish either that he has no other adequate remedy,
or that he has exhausted all remedies provided by law, but has not obtained
proper redress. When the petitioner establishes infringement of his Fundamental
Right, the Court has no discretion but to issue an appropriate writ in his favour. 42

In K.K. Kochuni v. State of Madras, 43 the Court held that Article 32

itself being a fundamental right the Court will give relief notwithstanding the
existence of an altetnative remedy. The Court's power under Article 32 (2) is
wide enough to order the taking of evidence, if necessary on disputed questions
of fact, and to give appropriate relief to the petitioner by issuing the writ or
order so as to suit the exigencies of the case.

(iv) Article 32 v. Article 226

No action lies in the Supreme Court under Art. 32 unless there is an

infringement of a Fundamental Right. 44 As the Supreme Court has emphasized
: "The violation of a Fundamental Right is the sine qua non of the exercise of
the right conferred by Art. 32" 45

41. Kochunni, KK v. State ofMadras, AIR 1959 SC 725.

42. Daryadv. State of Uttar Pradesh, AIR 1961 SC 1457.
43. AIR 1959 SC 725.
44. Andhra Industrial Works v. ChiefController ofImports, AIR 1974 SC 1539
45. The Fertilizer Corp. case.
 198

Art. 32 differs from Art. 226 in that whereas Art. 32 can be invoked
only for the enforcement of Fundamental Rights, Art 226 can be invoked not
only for the enforcement of Fundamental Rights but for 'any other purpose'
as well. This means that the Supreme Comt's power under art. 32 is restricted
as compared with the power of a High Court under Art. 226 for if an
administrative action does not affect a Fundamental Right, then it can be
challenged only in the High Court under Art. 226, and not in the Supreme
Court under Art. 3 2

The words "for any other purpose" found in Art 226 (but not in Art.
32), enable a High Court to take cognizance of any matter even if no
Fundamental Right is involved.

It may, however, be pointed out that there have been a few exceptional
cases where the Supreme Court has entertained writ petitions under Art. 32
although no question of Fundamental Right was involved. This approach of
the Court is justifiable on the ground that in these cases questions of great
constitutional significance were raised ; there was no formn except the Supreme
Court where these questions could be authoritatively decided, and there was
no other mechanism, exceptArt.32 to bring such matters within the cognizance
of the Supreme Court. This matters inter alia are:

46
(i) misuse of the ordinance - making power by the State of Bihar;

(ii) appointment of the Judges of the High Court and the Supreme Court; 47
48
(iii) issues related with the procedure to remove a Supreme Court Judge.

Reference may be made here to Tamil Nadu Cauvery NVV NU P Sangam

v. Union of lndia. 49 The society moved a writ petition under Art. 32 in the
Supreme Court for a direction to the Government of India to refer the cauvety
water dispute to a tribunal. The petition remained pending in the Court for

46. D.C. Wadhwa v. State ofBihar, AIR 1987 SC 579.

47. Supreme Court Advocates- on- Record Ass. v. Union ofIndia, AIR 1994 SC 268.
48. Sarojii Ramaswami v. Union ofIndia, AIR 1992 SC 2219.
49. AIR 1990 SC 316.
 199

more than seven years. An objection was raised against the maintainabil~ of
the petition. Rejecting the objection, the Comt ruled that to throw out the petition
after seven years by accepting the objection against its maintainability "would
be ignoring the actual state of affairs, would be too technical an approach and
in our view would be wholly unfair and unjust".

(v) Inter-Relationship between Articles 32 and 226

In the matter of enforcement of Fundamental Rights, the High Courts

under Art. 226, and the Supreme Court under Art. 32, enjoy concurrent
jurisdiction.

A question has been raised whether a petitioner seeking to enforce his

Fundamental Rights can go straight to the Supreme Court under Art. 32, or
should be first go to a High Comtunder Alt. 226. As early as 1950, in Romesh
50
Thapper, the Supreme Court ruled that such a petitioner can come straight
to the Supreme Comt without going ot the High Court first. The Comt stated
that unlike Art. 226, Art. 32 confers a Fundamental Right on the individual
and imposes an obligation on the Supreme Court which it must discharge
when a person complains of infringement of a Fundamental Right. Alt. 32
provides a guaranteed remedy for the enforcement of the Fundamental Rights
and constitutes the Supreme Comt as the "guarantor and protector of
Fundamental Rights." This proposition has been reiterated by the Supreme
51
Court in a number of cases.

This is continued to be the position til11987 when a two judge Bench

of the Supreme Court ruled in Kanubhai, 52 that a petitioner complaining of
infraction of his fundamental Right should approach the High Court first rather
than the Supreme Court in the first instance, the reason given for this view
was that there was a huge backlog of cases pending before the Supreme Comt.

50. Ramesh Thappar v. State ofMadras, AIR 1950 SC 124 .

51. State ofMadras v V.G. Row, AIR 1952 SC 196; KK Kochunni v. State ofMadras,
AIR 1959 SC 725; Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
52. Kanubhai Brahmbhattv. State ofGujarat, AIR 1987 SC 1159.
 200

In the case of Andi Mukta Sadguru Shree Muktajee vandas Swami

Suvarna Jayanti Mahotsav Smarak Trust & Ors v. V. R. Rudani & Ors. 53 the
Court held:

Article 226 confers wide powers on the High Courts to issue

writs in the nature of prerogative writs .. This is a striking
departure from the English law. Under Article 226, writs can
be is sud to "any persons or authority", the term "authority"
used in the context, must receive a liberal meaning unlike the
term in Article 12 which is relevant only for the purpose of
enforcement of fundamental rights under Article 32. Article
226 confers powers on the High Courts to issue writs for
enforcement of the fundamental rights as well as non-
fundamental tights. The words "any person or authority" used
in Article 226 are, therefore, not to be confined only to
statutory authoripes and instrumentalities of the State. They
may cover any other person or body performing public duty.
The form of the body concerned is not very much relevant.
What is relevnt is the nature of the duty imposed on the body.
The duty must be judged in the light of positive obligation
owned by the person or authority to the affected party, no
matter by what means the duty is imposed. If a positive
obligation exists mandamus cannot be denied54 .

Thus, it is clear that when a private body exercises its public functions
even if it is not a State, the aggrived person has a remedy not only under the
ordinary law but also under the Constitution, by way of a writ petition under
Article 226. Therefore merely because a non-governmental body exercises
some public duty that by itself would not suffice to make such a State for the
purpose of Article 12.

53. AIR 1989 SC 1607.

54. Andi Mukta Sadguru Shree Muktajee vandas Swami Suvama Jayanti Mahotsav Smarak
Trust &Ors v. VR.Rudani & Ors., AIR 1989 SC 1607, quotedinZee Tele Films Ltd. v.
Union ofIndia, AIR 2005 SC 2677 at 2691.
 201

It should be noted that there can be no two views about the fact that the
Constitution of this country is a living organism and it is the duty of Courts to
interpret the same to fulfil the needs and aspirations of the people depending
on the needs of the time. In Article 12 the term "other authorities" was
introduced at the time of framing of the Constitution with a limited objective
of granting judicial review of actions of such authorities which are created
under the Statute and which discharge State functions. However, because of
the need of the day this Court in Rajasthan State Electricity BoarcJ5 5 andSkhdev
Singh56 noticing the socio-econimic policy of the country thought it fit to expend
the .definition of the tetm "other authorities" to include bodies other then
statutory bodies. This development oflaw by judicial interpretation culminated
in the judgment of the 7-Judge Bench in the case of Pradeep Kumar Biswas 57 •
It is to be noted that in the meantime the socio-economic policy of the
Government of India has changed58 and the State is today distancing itself
from commercial acticities and concentrating on govetnance rather than on
business. Therefore, the situation prevailling at the time of Sukhdev Singh 59 is
not in existance at least for the time being, hence there seems to be no need to
further expand the scope of "other authorities" in Article 12 by judicial
interpretation at least for the time being. It should also be borne in mind that.
in a democracy there is a dividing line between a State enterprise and a non-
State enterprise, which is distinct and the judiciary should not be an instrument
to erase the said dividing line unless, of course, the circumstances of the day
require it to do so.

Since it is the view expressed by a two Judge Bench, it can not be

regarded as an authmitative pronouncement on an important constitutional
. issue, viz., inter relationship between Arts. 32 and 226. Such a vital
pronouncement could be made only by the Constitution Bench consisting at

55. AIR 1967 SC 1857.

56. AIR 1975 SC 1331.
57. c2o02) 5 sec 111.
58. See Balco Employees' Union (Regd) v. Union ofIndia & Ors. (2002) 2 SCC 333.
59. AIR 1975 SC 1331.
 202

least of five Judges, especially, when the long established position is sought to
be overtmned.

The ruling in Kanubhai seeks to negate what the Supreme Court has
itself said in a number of cases during the last four decades emphasizing upon
the significance of Art. 32, and the role assigned to it thereunder. 60

Even otherwise, on merit, this view will make Art. 32 redundant for
after having gone to the High Court first under Art~ 226, the petitioner would
then come to the Supreme Court by way of appeal and not under Art. 32,
because of the principle of res judicata, when a litigant approaches the Supreme
Court, the matter is decided by the Court fmally. But· if he approaches the
High Court, the petition is first decided by a single judge, an appeal then lies
to the division bench, and, thereafter, an appeal may be taken to the Supreme
Court. In fact, this may cause more delay and prove costier to the petitioner
than a writ petition directly under Art. 32. In effect, the Kanubhai tuling
devalues the significance not only of the Fundamental Rights but of the
Supreme Court itself. This could never have been the intention of the framers
of the Constitution.

In practice, it seems that the Kanubhai pronouncement has had no effect

on the existing practice and the writ petitions continue to be filed in the Supreme
Court under Art. 32 without first going to the High Court under Art. 226.

(vi) Broad Canvas of Article 32

Art. 32 being a Fundamental Right itself, it cannot be diluted or whittled

down by any law. Art. 32 can be invoked even when a law declares a particular
administrative action as fmal. 61

The powers of the Supreme Comt under Art. 32 are plenary and not

60. State ofMadras v. V.G. Rao, AIR 1952 SC 196; K. Kochunni v. State ofMadras, AIR
1959 sc 725.
61. Gopalan v. State ofMadras, AIR 1950 SC 27; Prem Chand v. Excise Commisioner.
AIR 1963 SC 996.
 203

fettered by any legal constraints. If in exercise of those powers, the court

commits a mistake, the court has plenary power to correct the mistake. 62

That Art. 3 2 bestows the Supreme Court with great powers is illustrated
by the following case. In Khatri v. State of Bihar, 63 several petitioners flied
writ petitions under Art. 21 on the allegation that they were blinded by the
police while they were in its custody. The question arose whether the Court
could order production of certain reports submitted by the CID to the State
Government claimed that this material was protected by Ss. 162 and 172 of
the Cr. P.C. Rejecting the contention, the Comt said that the proceedings under
Art. 3 2 are neither an 'inquiry' nor a 'trial' for an offence. Neither the Supreme
Court is a criminal Court while hearing a writ petition nor are the petitioners
accused persons and so these sections of the Cr. P. C. are not applicable to the
Court's writ jurisdiction under Att. 32.

(vii) Procedure Under Article 32

In Bandhua Mukti Morcha, 64 the Apex Court has clarified that

procedurally, under Art. 32, it is not bound to follow the ordinary adversary
procedure and may adopt such procedures may be effective for the enforcement
of the Fundamental Rights. When a writ petition was moved on behalf of
some workmen that they were being held in bondage, the court appointed two
persons as commissioners to make report on the petitioners' condition. It was
argued that their repmt had no evidentiary value since what was stated therein
was based only exparte evidence which had not been tested by cross-
examination. The court held the argmnent not well-founded and rejected it, as
it was based upon a total misconception of the true nature of a preceeding
under Art. 32.

Art 32(2) confers power on the Court is its widest terms. "It is not

62. S. Nagarajv. State oJKarnataka, (1993) Supp. (4) SCC 595; Common Cause, a Regd.
Society v. Union ofIndia, AIR 1995 SC 2979, 3025.
63. AIR 1981 SC 1068
64. AIR 1984 SC 802
 204

confmed to issuing the high prerogative writs", but "it is much wider and
includes within its matrix power of issue any directions, order or wdts which
may be appropdate for enforcement of the Fundamental Rights in question". 65

The Constitution is silent as to the procedure to be followed by the

CoUtt in exercising its power under Art. 32(2) because the Constitution- makers
were anxious not to allow.any procedural technicalities to stand in the way of
enforcement of Fundamental Rights and they never intended to fetter the
Court's discretion to evolve a procedure appropdate in the circumstances of a
given case to enable it to exercise its power to enforce a Fundamental Right.

Whatever procedure is necessary to fulfil that purpose is permissible to

the Court. It is not at all obligatory for the Court to follow adversruial procedure.
No such restriction ought to be imposed on the Court. In such a system a poor
person is always at a disadvantage against a Iich person. When the poor come
to the Court for enforcement of their Fundamental Rights, it is necessary to
deprut from the adversadal procedure and evolve a new procedure so as to
enable such people to bdng the necessary material before the Court so as to
secure enforcement of their lights. In the words of Bhagwati, J. :

We have therefore to abandon the laissez faire approach in

the judicial process particularly where it involves a question
of enforcement of Fundamental Rights meaningful for the
large masses of people .... If we want the Fundamental Rights
to become a living reality and the Supreme Court to become
a real sentinel on the qui vive, we must free ourselves from
the shackle of out dated and outmoded assumptions and bdng
to bear on the subject fresh outlook and original
unconventional thinking. 66

Accordingly, the Court has accepted even a letter addressed to the Court

65. AIR 1984 SC 814.

66. AIR 1984 SCat 815-16
 205

as an "appropriate" proceeding and has taken congnizance of the matter raised

therein. The letter need not be in any particular form. 67

The poor cannot produce relevant material before the Court in support
of their case. Even when a case is brought on their behalf by a citizen acting
pro bono publico, it would be almost impossible for him to gather the relevant
material and place it before the court. If the court adopts a passive attitude and
declines to intervene in the absence of relevent materials, "the Fundamental
Rights would remain merely a teasing illusion so far as the poor and
disadvantaged sections of the community are concerned. " 68

That is why the court appoints commissioners to gather facts and data
in regard to a complaint of branch of a Fundamental Right made on behalf of
the weaker sections of the society. The commissioners' report furnishes prima
facie evidence of the facts and data. The court appoints as commissioners
such persons as would cany out the assignment objectively and imprutially
without any predilection or prejudice. Any party can dispute the facts or data
stated in the commissioner's report. It is entirely for the court to consider what
weight ought to be attached to the facts mentioned in the report. The High
Courts can also follow a similru· procedure in exercise of their jurisdiction
under Art. 226.

(viii) Article 32 cannot be Restricted by Legislation

Art. 32 being a Fundamental Right cannot be diluted by any legislation.

Section 14 of the Preventive Detention Act, 1950, prevented the detenu, on
pain ofpresecution, from disclosing to any comt the grounds of his detention
communicated to him by the detainig authority. The provision was held
unconstitutional as it rendered negatory the exercise of the Supreme Court's
power under Art. 32 for unless the court could examine the grounds on which

67. Bandhua Mukti Morcha v. Union ofIndia, AIR 1984 SC 802, 813-14; MC. Mehta v.
Union ofIndia, AIR SC 1086, 1090; Pratul Kumar Singh v. State ofOrrissa, AIR 1989
sc 1783.
68. AIR 1984 SCat 516.
 206

the detention order had been based, it could not decide whether detenu's
Fundamental Rights under Arts. 21 and 22 had been infringed or not. 69

A similar point was raised in Express Newspapers v. Union ofIndia in

another way. 70 The Working Journalists Act, 1955, constituted a wage board
for fixing the rates of wages of working journalists. The Act was challenged
on the ground that it made no provision requiring the wage board to give
reasons for its decision. It was argued that this rendered the petitioner's right
to approach the Supreme Court for enforcement of his Fundamental Rights
negatory because, in the absence of reasons, the Court would not be able to
investigate the valid prohibited the wage board from giving reasons for its
decision, as that would have rendered Alt. 32 negatory. But as there was no
such provision and it was left to the board's discretion to give reasons for its
decision or not, Art. 32 was not infringed in any manner whatsoever.

In Prem Chand v. Excise Commr., 71 the Supreme Court struck down

one of its own rules, (0.35, R.l2) which required fumishig of security to
move the court under Art. 32, as it retarded the assertion or vindication of the
Fundamental Right under Art. 32. The rule imposed a fmancial obligation on
the petitioner, and if he did not comply with it, his petition would fail.

The Court also took the positin in Prem Chand that fiunishing of security
discriminated against the poor sections of the society, and that Art. 32 cannot
be encumbered by rules which favoured the rich with access to justice. But a
rule aiding and facilitating the orderly presentation of petitions under Art. 32
cannot be regarded as unconstitutional as contravening Art. 32. A rule requiring
security for filing a petition for review of an order made earlier by the court
dismissing an Art. 32 petition is valid as it does not restrict Art. 32 in any
way. 72

69. Gopalan v. State ofMadras, AIR 1950 SC 27; Lachhman Das v. State ofPunjab, AIR
1963 sc 222.
70. AIR 1958 SC 578.
71. AIR 1963 SC 996.
72. Lala Ram v. Supreme Courtoflndia, AIR 1967 C 847.
 207

The Supreme Court has again asserted recently that its power and
jurisdiction under Art. 32 cannot be curtailed by any law. In exercising its
power under Art. 32, the Court can direct anybody to make any inquiry. All
authorities in the country are bound by the directions of the Comt and have to
act in aid of the Court.

In Paramjit, 73 the Supreme Court directed the National Human Rights

Commission to make an inquiry into a specific matter. Under the Act
establishing the Commission, it cannot inquire into any matter which is more
than one year old. But the Supreme Comt ruled that the Commission could
inquire into the referr-ed matter even though it was older than one year because
the Commission would be functioning sui generis under the direction issued
by the Court under Art. 32 and not under its own constituent statute.

By and large the Supreme Comt has used its jurisdiction under Alt. 32
in a creative manner.

(ix) Quasi - Judicial Bodies

The Supreme Court has diluted the efficacy of Art. 32 as a technique to

challenge a dicision by a quasi-judicial body. In Ujjam Bai v. State of Uttar
Pradesh, 74 the court has held that an assessment of sales tax by a quasi-judicial
authority, acting within its jurisdiction and under an intra vires law, could not
be challenged under Art. 32 on the ground that it has misconstrued or
misinterpreted the law, because no breach of any Fundamental Right was
involved in such a situation. Such an en-or can be corr-ected by way of appeal
to the Supreme Court.

Art. 32 is , however, available when a Fundamental Right is violated -

(1) by a quasi-judicial authority acting under an ultra vires law; or
(2) when the assessing authority seeks to impose a tax against a constitutional
prohibition; 75 or demands to tax not leviable under any valid law; or
73. Paramjit Kaur v. State ofPunjab, AIR 1999 SC 34.
74. AIR 1962 SC 1621.
75. FirmMehtabMajidv. State oJMadras, AIR 1963 SC 928.
 208

(3) where the stature is intra vires but the authority acts under it without
jurisdiction, or wrongly assumes jurisdiction: 76 or
(4) where the action taken is procedurally ultra vires, for example, when
principles of natural justice are infiinged. 77

The Government of India, by a statutmy order, applied the Sea Customs

and other relevant Act ofPondicherry, saving "all things done or omitted to be
done November 1, 1954" from the mischief of the Acts being applied. The
petitioner had placed orders for impose before, but received the consignments
after, the said date, and the Customs Collector seized them and imposed a
heavy penalty on him. The petitioner challenged the Collector's order under
Art. 32 alleging infringment of Art. 19(1) (g) on the ground that the Collector
was acting without jurisdiction. Rejecting the petition, the Supreme Court
held by a majority that in seizing the consignments, the Collector was acting
within jurisdiction and was discharging a quasi-judicial function. Although
he might either be taking a wrong view of the facts, or misconstJ.uing the
statutory order in question, yet in none of these situtations could the Court
interfere under Art. 32, in the latter event because of the ruling in the Ujjam
Bai case. 78

In STC v. Mysore, 79 the Ujjam Bai case were held inapplicable and an
assessment of sales tax on inter-State sale of cement was quashed under Art.
32. Under the Constitution, a State can not tax an interstate sale. It was argued
that the taxing officer was acting in a quasi -judicial capacity; he had
jurisdiction to decide whether a particular sale was inter-State or not, and any
error committed by him in deciding that question falling within his jurisdiction
would not offend any Fundamental Right as had been held in the Ujjam Bai
case.

76. S.T.C. v. Mysore, AIR 1963 SC 558.

77. Coffee Boardv. Jt. Commercial Tax Officer, AIR 1971 SC 870.
78. Pioneer Traders v. ChiefController ofImports and Exports, AIR 1963 SC 734
79. AIR 1963 SC 548.
 209

A writ petition was moved in the Supreme Court under Art. 32 on the
ground that the licensing authority misapplied the Imports and Exports Control
Act. The Court dismissed the same on the ground that a petition under Att. 32
is not competent to challenge any erroneous decision of an authority. Invoking
the authority of Ujjam Bai, the court tuled that a wrong application of the law
would not amount to a violation of Fundamental Rights. If the provisions of
the law would not amount to a violation of Fundamental Rights whether the
authority was right or wrong on facts. Att erroneous decision does not violate
Fundamental Rights. 80

The. above mentioned cases bring out the difficulties of challenging

quasi-judicial decisions on the ground of infringement ofFundamental Rights
through Art. 32 petitions. The law has become rather technical. It is always a
difficult question to decide whether an authority is acting without jurisdiction,
or within jurisdiction but taking a wrong view of facts or law. Art. 3 2 is
available in the ftrst case but not in the second. Similarly, if a quasi-judicial
authority acting within jurisdiction, misinterprets a constitutional provision,
rather than an ordinary law, Art. 32 may be available in the ftrst case but not in
the second. Similarly if a quasi-judicial authority acting within jurisdiction,
misinterprets a constitutional provision, rather than an ordinary law, Art. 32
may be available . On the whole, therefore, it is hazardous task to challenge a
quasi-judicial decision under Article 226 which is broader in scope than Article
32. This position, in a way, appeats to be anomalous for, while Article 32 is a
guaranteed right, Article 226 is not so.

(x) Questions of Fact

The Court has power to decide disputed questions of fact arising in a
writ petition if it so desires. This was very clearly stated by the CoUlt in
81
Kochunni, where the Court observed:
But we do to countenance the proposition that, on an

80. J. Fernandez & Company v. Dy. ChiefController Imports and Exports, AIR 1975 SC
1208.
81. K.K. Kochunni Moopil Nayar v. State ofMadras, AIR 1959 SC 725.
 210

application under .Alt. 32, this Court may decline to entertain

the same on the simple ground that it involves the
determination 9f disputed questions of fact or on any other
ground. If we were to accede to the aforesaid contention of
learned counsel; we would be failing in our duty as the
custodian and protector of the Fundamental Rights ..... Further,
questions of fact can and very often are dealt with on affidavits.

This statement was made in 1959. Since then the attitude of the Comt
has stiffened on this question and, ordinarily, the Court does not now go into
disputed questions of fact. 82 in a writ petition. The reason for this judicial
stance is that disputed questions of fact can be decided properly by examining
the pleadings raised by the parties and by taking evidence and such a course is
not possible in a summary proceeding like that of a writ petition under .Att.32.

(xi) Againsf whom a writ can be issued ?

By and large Fundamental Rights are enforceable against the state. The
term 'State'' has been defmed in .Alt. 12 which has already been discussed
earlier. There are a few fundamental Rights, such as, under .Atts. 17, 21, 23 or
24 which are ~so available against private persons. In case of violation of any
such right, the comt can make appropriate orders against violation of such
rights by private persons. 83

The protection available under .Atticle 21 is available against 'the state'.

InAjay !fasia84, the Court held that the expression 'Other Authorities included
an "instrumentality" or 'agency" of the government. Now the term "state"
included even a company registered under the Indian Companies Act or a
I

82. Major Sodhi v. Union ofIndia, AIR 1991 SC 1617; Daljit Singh Dalal v. Union of
India, AIR 1997 SC 1367.

83. Peoples Union for Democratic Rights v. Union ofIndia, AIR 1982 SC 1473, 1490-91,
Vishaka v. State ofRajasthan, AIR 1997 SC 3011.

84. Ajay Hasia v. KhalidMujib, AIR 1981 SC 487.

 211

society registered under the Societies Registration Act 85 • The above

development will be applicable to Article 21 86 .

The basic question which arises arises in this regard is : against whom
the protection of Article 21 is available? This question was considered by the
Court in Gopalan 887 case, where the Court held that the protection was available
only against the State. Justice Patanjali Sastri opined that the constitutional
safeguards were directed against the State and its organs 88 • The Court preferred
the English doctrine of immunity against unlawful executive interference.
Article 21, according to Justice Mahajan, "gives complete immunity against
the exercise of despotic power by the executive". It further gives immunity
against invalid laws which contravene the Constitution89 . However, in the
opinion ofDas, J., Article 21 puts a check on the legislature as well90 .

Bhagwati, J., followed the expansive approach of Gopalan, in the Habeas

Corpus 91 • The learned judge opined:

Article 21 operates not merely as restriction on executive action

against deprivation of personal liberty without authority of
law, but also enacts a check on the legislature92 •

A similar view was followed by the learned judge in Eachan Singh93 • In this
case the learned judge, following Maneka, observe:

Article 21 affords protection not only against executive action

but also against legislation94 .

85. Ibid.
86. Dwivedi, B.P. The Changing Dimension of Personal Liberty in India, Wadhwa &
Company, Allahabad, 1998 at 72.
87. Gopalan v. State ofMadras, AIR 1950 SC 27.
88. Ibid at 74.
89. Ibid at 84, Per Mahajan, J.
90. Ibid at 109, Per Das, J.
91. A.D.M Jabalpur v. S. Kant Sukla, AIR 1976 SC 1207.
92. Ibid at 1363.
93. Eachan Singh v. State ofPunjab, AIR 1982 SC 1325.
94. Ibid at 1340.
 212

Now it is well settled that the protection of Article 21 is available against

the executive and the legislature as well. Is the protection of Article 21 available
against the judiciary? It may be noted that the 'judiciary' is not expressly
mentioned within the definition of the 'State' under Article 12. However, there
are a few fundamental rights in pa.tt III which afford protection against the
Judiciary as wel/95 • In Eachan Singh96 • Bhagwati, J., dissenting, opined that a
law vesting 'uncontrolled and unregulated discretion in the court whether to
award death sentence or life imprisonment' would fall foul of Atticle 21 97 .
Thus, a judgment of the court awarding death sentence was treated as violative
of Article 21.

In Antulay v. R.S. Nayak98 . The basic question framed by Sabyasachi

Mukharji, J., was whether the earlier directions given by the Supreme Comt
transferring the case of the appellant for trial from the Comt of special Judge
to the High Court was violative.

Fundamental rights are generally available against State. However, some

of the socio-economic rights guaranteed under part III of the Indian Constitution
a.t·e available against private individuals also 99 . The question whether Article
21 is available against private acts, for the first time, reached before the Supreme
Court in Gopalan s100 case where the court was of the opinion that it was a

95. For example, Articles 20 (2) and (3), 22 (I); See also, Naresh Sridhar Mirajkar v. State
ofMaharashtra, AIR 1967 SC 1, 28-29 per Hidayatullah J.
96. Eachan Singh v. State ofPunjab, AIR 1982 SC 1325.
97. Ibid at 1384.
98. AIR 1988 SC 1531.
99. For example, Articles 15(2), 17, 23 and 24.
lOO.Gopalan v. State ofMadras, AIR 1950 SC 27, See also, P.D. Shamdasani v. Central
Bank ofIndia Ltd, AIR 1952 SC 59, 60, which was a case under Articles 19(1) (f) and
31(1), Patanjali Sastri, C.J., Speaking for the Bench of five Judges, observed; There is
no express reference to the State in Article 21. But could it be suggested on that account
that Article was intened to afford protection to life and personal liberty against violation
by private individuals? TI1e words "except by procedure established by law" plainly
exclude such a suggestion.
 213

misconception to think that the constitutional safeguards are directed against

individuals. Justice Patanjali Sastri held that the protection against violation
of the rights by individuals must be sought in the ordinary law101 . The question
of violation of Article 21 by private action pointedly came up before the
Supreme Court in Vidya Vermas 102 case.

A significant development took place in India by the enactment of the

Protection of Human Rights Act, 1993, by Parliament. The Act defines the
'human rights' to mean the 'the rights relating to life, liberty, equality and
dignity of the individuaF 03 • Further, it includes the above rights guaranteed by
the Constitution as well as embodied in the International Covenant on
Economic, Social and Cultural Rights.

InMC. Mehta s104, case a significant question came up; whether a private
corporation could come within the ambit of Article 12 and thus be subjected to
the limitations of fundamental rights. The Court did not make a definite
pronouncement on the issue ofthe State but it subjected the private corporation
to the limitations of Article 21. Thus in view of the humanist approach to
personal liberty the question as to who is the violator whether the 'State' or
'Private individual' itself loses its relevance. In Sheela Barse v. Secretary,
Children Aid Society 105 the children Aid society, Bombay, a registered society
was treated as the 'state' within the meaning of Article 12 and required to
satisfy the requirement of Article 21. A large mass of private educational
institutions have cropped up to provide for many disciplines including scientific,
technical and medical education. The question arose in Mohini Jain s106 case
was whether a private educational institution by state recognition would be

101. Ibid at 74.

102. Vidya verma v. Shiv Narain, AIR 1956 SC 108.
103. Sec. 2 (d), the Protection of Human Rights Act, 1993, (emphasis added)
104. MC. Mehta v. Union ofIndia, AIR 1987 SC 1086.
105. AIR 1987 SC 656
106. Mohini Jain v. State ofKarnataka, AIR 1992 SC 1858.
 214

included under Article 12. Justice Kuldip Singh upheld the right to education
and then observed:

The State is under an obligation to establish educational

institutions to enable the citizens to enjoy the said right. The
state may discharge its obligation through State owned or sate
recognized educational institutions. When the State
government grants recognition to the private educational
institutions it crates an agency to fulfil its constitutional
obligation under the constitution107 •

In Unni Krishnan 108, the court following Ajay Hasia 109, found it
impossible to hold that a private educational institution either by recognition
or affiliation to the University could ever be called an instrumentality of state.
It is submitted that the view expressed in Mohini Jain s case is more in
consonance with the criteria laid down in Ajay Hasia case. Thus the prime
concern of the court, it is submitted, has been to protect the right to personal
liberty of the individual either extending the scope of Article 12 to include a
private body into the definition of the State or to extend the protection even to
the private acts 110 •

(xii) Who can apply?

Art. 32 does not prescribe the persons or classes of persons who can
invoke the Supreme Court's jurisdiction for the redressal of their grievances.
The matter of 'standing' this lies within the realm of the Supreme Court.

The general principle is that a person whose Fundamental Right has

been infringed has locus standi to move the Supreme CoUit under Art. 32 for

107. Ibid at 1866 (emphasis added).

108. Unni Krishnan v. State ofA.P., AIR 1993 SC 2178, at 2206,per Mohan, J.
109. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
110. Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645, 674.
 215
(
the enforcement of his right. A person where Fundamental Right is affected
has standing to file a petition under Art. 32

The legal right to be enforced under Art. 32 must ordinarily be the

right of the petitioner himself. As rights are different and inherent in different
legal entities, it is not competent to a person to seek to enforce the rights of
another except when the law permits him to do so.m This pdnciple emanates
from the theory that the remedies and rights are correlative and, therefore,
only a person whose own right is in jeopardy is entitled to seek a remedy.

Since a corporation has a distinct legal personality of its own, with

rights and duties separate from those of its individual members, a shareholder
cannot complain against a law which affects the Fundamental Right of the
corporation except to the extent that it infringes his own Fundamental Right
as wel1 112•

A well-known exception to this principle, however, is a petition for a

writ of habeas corpus which can be made not only by the person who is
mprisoned or detained but by any person provided he is not a complete stranger,
for liberating a person from an illegal imp1isonment. 113

(xiii) Relief under Article 32

The phraseology of Art. 32 (2) is very broad. Thereunder the Supreme

Court is authorized to issue orders, directions, or writs, "including" writs, " in
the nature of' mandamus, certiorari, prohibition, quo warranto and habeas
corpus.

Under Alt. 32, the Supreme Court may issue not only the specified
writs but also make any order, or given any directions as it may consider
approptiate in the circumstances of the case to give proper relief to the

Ill. G. C. College, Silchar v. Gauhati University, AIR 1973 SC 761; S. Sinha v. S. La! &
Co., AIR 1973 SC 2720.
112. Chiranjit La! v. Union ofIndia, AIR 1951 SC 41.
113. Sunil Batra v. Delhi Administration (II), AIR 1980 SC 1579.
 216

petitioner. The Court can grant declaration or injunction as well if that be the
114
proper relief.
The Court can mould relief to meet the exigencies of the specific
circumstances. 115
What is the appropriate remedy to be given to the petitioner for the
enforcement of his Fundamental Rights in a matter for the Court to decide. In
the words of the Court: 116
The jurisdiction enjoyed by this Court under Art. 32 is very
wide as this court, while conceding a petition for the
enforcement of any of the Fundamental Rights .... , can declare
an Act to be ultra vires or beyound the competence of the
legislature.

The power of the Supreme Court is not restricted to the five writs
specifically mentioned in Art. 32 (2). This is because of two reasons, viz:

(1) The power of the Court is 'inclusive';

(2) The Court has power to issue writs "in the nature of' the specified five
writs.
This means that the Court has flexibility in the matter of issuing writs.
The Court has explained the position in M C. Mehta v. Union ofIndia 111.
. .. This Comt under Art. 32 ( 1) is free to devise any procedure
appropriate for the particular purpose of the proceedings
namely, enforcement of a Fundamental Right and under Art.
32 (1) the Court has the implicit power to issue whatever
direction, order or writ is necessary in a given case, including
all incidental or ancillary power necessary to secure
enforcement of the Fundamental Right.

114. K K Kochunni v. State ofPunjab, AIR 1959 SC 725; P.J Irani v. State ofMadras,
AIR 1961 SC 1731
115. Golaknath v. State ofPunjab, AIR 1967 SC 1643.
116. Bodhisattwa v. Subha Chakraborty, AIR 1996 SC 922, 926
117. AIR 1987 SC 1086, 1091.