Prem Chand Garg vs Excise Commissioner, U.P., Allahabad

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Petition No. 52 of 1962

Decision Date: 6 November 1962

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, K.N. Wanchoo, K.C. Das Gupta, J.C. Shah

In the case titled Prem Chand Garg versus Excise Commissioner, Uttar Pradesh, Allahabad, the judgment was delivered on 6 November 1962 by a bench of the Supreme Court of India composed of P. B. Gajendragadkar, Bhuvneshwar P. Sinha, K. N. Wanchoo, K. C. Das Gupta and J. C. Shah. The petitioner, Prem Chand Garg, challenged the respondent, the Excise Commissioner of Uttar Pradesh, Allahabad, on the ground that Rule 12 of Order XXXV of the Supreme Court Rules, which permitted the Court to require a petitioner to furnish security for the costs of the respondent in writ petitions filed under Article 32 of the Constitution, was invalid. The petitioner argued that the rule imposed an unjustifiable obstacle to the fundamental right guaranteed by Article 32 to move the Supreme Court for the enforcement of fundamental rights. The Court examined the validity of the rule in light of Articles 32, 142 (1) and 145 of the Constitution. It held that Rule 12 of Order XXXV is invalid to the extent that it mandates the furnishing of security for the respondent’s costs, because the right to approach the Supreme Court under Article 32 is an absolute right that cannot be limited or qualified on any ground. The Court observed that requiring security would retard the assertion or vindication of the fundamental right and would therefore contravene Article 32. The discretionary nature of the rule was found to be irrelevant to this conclusion. While Article 142 (1) empowers the Supreme Court to pass any order necessary to do complete justice between the parties, the Court clarified that it cannot issue an order that is inconsistent with the fundamental rights protected by Part III of the Constitution. No inconsistency was seen between Article 142 (1) and Article 32, as the former does not confer power to contravene the latter. Similarly, Article 145, which authorises the Supreme Court to make rules, does not empower it to enact provisions that conflict with Article 32. The judgment relied upon several earlier decisions, including Ramesh Thapper v. State of Madras, State of Madras v. V. G. Row, Daryao v. State of Uttar Pradesh, Kavalappara Kottarathil Kochunni Moopil Nayar v. State of Madras, Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and K. M. Nanavati v. State of Bombay, distinguishing the latter where appropriate. The Court, by a majority of Sinha, C. J., Gajendragadkar, Wanchoo and Das Gupta, with Shah concurring, concluded that the rule in question is unconstitutional insofar as it imposes a requirement of security, thereby upholding the unqualified right of a person to move the Supreme Court under Article 32 for the protection of fundamental rights.

The Court observed that the rule in question was not void, because it did not impose a direct restriction on a litigant’s statutory right to approach the Supreme Court. Rather, the rule merely acknowledged the Court’s jurisdiction, in appropriate cases, to require a security from a party. Consequently, the rule was not fundamentally a procedural or practice rule; instead, it concerned the Court’s jurisdiction, which is derived from Article 142 of the Constitution. The Court held that no conflict arose between a rule that simply declares the jurisdiction conferred by Article 142 and the right guaranteed under Article 32. Both constitutional provisions, Article 142 and Article 32(1), must therefore be read harmoniously, and because both are constitutional provisions, one cannot be said to prevail over the other. The Court relied upon the decision in Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha, [1959] Supp. 1 S.C.R. 806. The matter before the Court was Original Jurisdiction Petition No. 52 of 1962, filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel G.S. Pathak, B. Gopalakrishnan and Naunit Lal appeared for the petitioners, while K.S. Hajela and C.P. Lal represented respondents 1 and 2, and the Solicitor‑General of India, C.K. Daphtary, together with B.R.L. Iyengar and R.H. Dhebar, appeared for respondent 3. The judgment dated 6 November 1962 was delivered by Chief Justice Sinha, with Justices Gajendragadkar, Wanchoo and Das Gupta, while Justice Shah gave a separate opinion. Justice Gajendragadkar noted that the petition raised an important question concerning the validity of a rule made by the Supreme Court under its powers from Article 145. The impugned provision was Rule 12 of Order XXXV, which authorises the Court, in proceedings to which the Order applies, to impose such terms as to costs and the giving of security as it deems fit. One such proceeding is a petition under Article 32. The petitioners, Prem Chand Garg and another, partners of M/s Industrial Chemical Corporation, Ghaziabad, had filed Petition No. 348 of 1961 under Article 32, challenging an order of the Excise Commissioner of Uttar Pradesh that refused permission to a distillery to supply power alcohol to the petitioners. The petition was admitted on 12 December 1961, and a rule was directed to be issued to the Excise Commissioner and the State of Uttar Pradesh. At that stage, the Court, invoking Rule 12, required the petitioners to deposit a security of Rs 2,500 in cash within six weeks. Since 1959, such an order has been treated by the Court as a condition precedent to the issuance of a rule nisi against the impleaded respondents. The petitioners found the amount difficult to raise and, on 24 January 1962, applied to the Court for a modification of the security requirement. That application was dismissed, although the petitioners were subsequently granted additional time to deposit the amount by 26 March 1962, an order issued on 15 March 1962.

The Court granted the petitioners an extension to deposit the required security, setting a new deadline of 26 March 1962. This order was formally issued on 15 March 1962. After receiving the order, the petitioners endeavoured to raise the necessary funds, but their attempts were unsuccessful. Their inability to provide the security prompted them to file the present petition on 24 March 1962. Through this petition, the petitioners argued that the impugned Rule, insofar as it mandates the furnishing of security, exceeds the authority of the Board because it infringes the fundamental right guaranteed to them under Article 32 of the Constitution. Accordingly, the Court was called upon to decide the validity of the Rule on the basis of this application. Article 32(1) declares that every citizen has the right to approach the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution, and sub‑clause (4) stipulates that this right shall not be suspended except as the Constitution expressly provides. There is no doubt that the right to move this Court, as conferred by Article 32, is itself a guaranteed right and enjoys a position of equal prominence in the Constitution as the other provisions that protect citizens’ fundamental rights. The fundamental rights enshrined in Part III, which are made justiciable, constitute one of the most striking and distinctive features of the Indian Constitution. It is true, however, that these rights are not absolute; they must be balanced against the interests of the general public. As the scheme of Article 19 illustrates, the difficult task of assessing the propriety or validity of adjustments made either by legislation or by executive action, where fundamental rights intersect with socioeconomic welfare demands, has been ultimately entrusted to the High Courts and the Supreme Court by the Constitution. In view of this understanding, the framers of the Constitution deemed it appropriate to treat the citizens’ right to approach this Court for the enforcement of their fundamental rights as a fundamental right in its own right. Consequently, the fundamental right to move this Court may be described as the cornerstone of the democratic edifice erected by the Constitution. For this reason, it is natural that this Court, as expressed by Justice Patanjali Sastri, should regard itself “as the protector and guarantor of fundamental rights,” and should proclaim that “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights” (see Ramesh Tlappar Y. v. The State of Madras). In discharging its duties, this Court must adopt the role of “a sentinel on the qui vive” (see State of Madras v. V. G. Row) and must ever consider it a solemn duty to safeguard those fundamental rights zealously and vigilantly (see Daryao v. The State of U. P.). Mr. Pathak, counsel for the petitioners, contends that the

Mr. Pathak argued that the right guaranteed under Article 32(1) is not subject to any exceptions, unlike the rights protected by Article 19. He described the right to approach this Court as an absolute right whose content cannot be limited or impaired on any ground, including the interests of the general public. For this reason he termed the guarantee under Article 32 as “absolutely absolute.” He observed that the breadth and importance of the right are evident from the wording of the article itself, and therefore it is unnecessary and even inappropriate to employ hyperbole or superlatives to stress its significance. Nevertheless, Mr. Pathak acknowledged that the right to move the Court may be validly regulated by procedural rules and regulations that are intended to aid the assertion and vindication of the right and to ensure a fair trial of the matters raised by the petitioners. For example, he accepted that a rule may require a petition filed under Article 32 to be legibly written or typed before filing, that the relevant paper book be prepared in the prescribed manner to facilitate reference in Court, that a notice be issued to the respondent, or that an affidavit be made in the prescribed form. He maintained that such rules are legitimate because they help the Court dispose of the petition on its merits. However, he warned that any rule which retards or obstructs the petitioner’s attempt to assert the fundamental right under Article 32 must be struck down as violative of that article. Specifically, he contended that the impugned rule imposes an obligation on the petitioners to deposit a sum of money in Court as security for the respondent’s costs. Far from assisting the petitioners, this requirement, he said, retards or obstructs the exercise of the fundamental right. If the petitioners are unable to furnish the security, their petition may be dismissed for non‑prosecution, a circumstance that clearly demonstrates the hardship caused by the rule and shows how it contravenes Article 32.

The learned Solicitor‑General, appearing for the Registrar of the Court, put forward a contrasting view. He argued that the rule cannot be said to contravene Article 32 because it is a discretionary rule that vests discretion in this Court to decide whether to order the security or not, according to the circumstances of each case. He conceded that, for some time, it has been the general practice of this Court to order security in Article 32 petitions, although in certain cases, on the petitioner's motion, the amount of security has been reduced or even waived. He further maintained that if the prevailing practice is found to be unsatisfactory or inconsistent with the spirit of the rule, the appropriate remedy is to change the practice, not to strike down the rule itself. He asserted that demanding security from the petitioner is a normal procedural rule recognized by the Civil Procedure Code, relying on the provisions of Order 25 rule 1 and 2 and Order 41 rule 10. He emphasized that, like all judicial proceedings, the trial of a petition under Article 32 must be conducted fairly to both parties, and that, when it appears to the Court that securing the respondent’s costs is in the interest of justice, the Court may order such security.

In several instances, when a petitioner moved the Court, the amount of security that had been ordered was reduced. There have also been occasions in which the Court, after considering the circumstances, chose to dispense with any security requirement altogether. The Solicitor‑General, however, argued that if the existing practice proves unsatisfactory or appears contrary to the spirit of the rule, the appropriate remedy is to amend the practice rather than to attack the rule itself. He maintained that the rule contains no inherent defect and therefore cannot be struck down solely because of occasional misapplication. According to him, in a proper case the Court may demand security from the petitioner because such a demand follows the normal procedural rule recognized by the Civil Procedure Code. He specifically cited Order 25 rules 1 and 2 together with Order 41 rule 10 as the statutory provisions that authorize such an order. The Solicitor‑General further emphasized that, even in proceedings arising under Article 32, the Court must act fairly toward both parties. Consequently, if the Court perceives that securing the respondent’s costs serves the interests of justice, it is within its authority to order such security. He argued that a rule permitting the Court to make a security order in appropriate circumstances does not conflict with Article 32.

To support this position, the Solicitor‑General relied upon the provisions of Article 145(1)(f) and, more importantly, upon the wide power vested in the Court by Article 142(1) of the Constitution. He suggested that when interpreting the broad reach of Article 142, the Court should employ a rule of harmonious construction to reconcile those powers with Article 32. The Solicitor‑General observed that if the present controversy were limited to the narrow question of how to construct the impugned rule and whether the prevailing practice is proper, the Court would need to examine the rule’s validity. He added that the Court would also have to consider whether the practice of demanding security without a full examination of the special features of each case renders the practice irregular. Moreover, the issue would extend to whether the rule can survive insofar as it places discretionary authority in the highest Court and limits its use to cases justified by reasons similar to those enumerated in Order 25 rules 1 and 2 and Order 41 rule 10. In this context, two opposing contentions were presented before the Court for its careful consideration of the legal issues involved. Counsel for the petitioner, Mr Pathak, argued that the rule is overly broad and permits an order of security even when the statutory tests in Order 25 rule 1 and Order 41 rule 10 are not satisfied. He maintained that because of this breadth, the rule should be entirely struck down as unconstitutional and void. To support his position, Mr Pathak relied on the Supreme Court’s decisions in Ramesh Thappar v. State of Madras, Chintaman Rao v. State of Madhya Pradesh, and Kameshwar Prasad v. State of Bihar.

The Solicitor‑General contended that the rule should be interpreted narrowly so that this Court could issue orders of security only in proper cases, and on that limited construction the rule’s validity ought to be upheld. He observed that in some instances orders may have been passed without a full examination of the merits of the question, and that such orders might not have been properly passed under the rule; however, he argued that this deficiency does not invalidate the rule itself. To support his position he relied on the decisions of this Court in M.D. Chamarbaugwalla v. The Union of India (1) and Kedar Nath Singh v. State of Bihar (2). As we have already indicated, we would have needed to examine these contentions only if the petitioners had conceded the existence of the power to make an order for security in appropriate cases. Since the existence of that power is itself disputed, we are required to address the broader issue raised by Mr. Pathak. Mr. Pathak submits that even where the provisions of Order 25 and Order 41 ordinarily apply, this Court lacks power to make a security order in a petition under Article 32. He maintains that the only legitimate test is whether the rule aids or assists the assertion or vindication of the fundamental right, or whether it retards or obstructs that assertion. If the rule is found to retard or obstruct the fundamental right by imposing a pecuniary obligation on the petitioner, Mr. Pathak argues that the rule is invalid, there is no authority in this Court to make such a rule under Article 145, and the Court has no jurisdiction to issue such an order under Article 142. This larger question requires determination in the present petition. To support his argument that the Court has no power to make such a rule, Mr. Pathak relied on the decision of this Court in the case of Cape of Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras (3). In that case, Chief Justice Das examined the scope and effect of the provisions of Article 32 and observed that an application made under Article 32 cannot be rejected merely because the petitioner has an alternative remedy available. The learned Chief Justice then addressed whether such an application could be dismissed on the ground that it involved determination of disputed questions of fact, and in answering that question he expressed his conclusion in these words: “But we do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground.”

The Court noted that the earlier judgment had emphatically rejected the view that, on an application filed under Article 32, the Court could refuse to entertain the petition merely because it required determination of disputed questions of fact or for any other reason. The Court quoted the previous decision’s wording: “But we do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground.” Mr. Pathak relied on the final phrase of that sentence and argued that the statement of the learned Chief Justice was categorical, meaning that a petition under Article 32 could never be dismissed on the ground that it involves disputed facts or on any other ground, and that this excluded the ground of non‑payment of security. The Court rejected that argument as unsound. It held that the expression “or on any other ground” could not be extracted from its surrounding context. The context indicated that “any other ground” was intended to refer to grounds similar to those already enumerated in the preceding part of the sentence. To illustrate, the Court cited a petition barred by the principle of res judicata, noting that this Court has held that the doctrine of res judicata applies to petitions under Article 32 (see Daryao v. The State of U.P. (1)). The Court also referred to a situation where a petition under Article 32 would be dismissed on a preliminary ground because it challenges an assessment order made by a taxing authority within its lawful jurisdiction, based solely on a misconstruction of a statutory provision or a notification issued thereunder (see Smt. Ujjam Bai v. The State of Uttar Pradesh (2)). The Court observed that if the words “or on any other ground” were given a literal meaning, they would conflict with these subsequent decisions, which is not the correct interpretation. Consequently, the argument founded on the wording used by the Chief Justice could not be accepted. The Court further cautioned that it would be unfair to assume that the phrase “or on any other ground” implied that, once a petition is filed under Article 32, the Court must disregard considerations such as res judicata or the petition’s competence. Accordingly, the contention that the rule was inconsistent with the decision in the Kochunni Moopil Nayar case must be rejected. The Court then turned to the next issue, namely whether an order requiring security could be said to retard or obstruct the assertion or vindication of a fundamental right under Article 32. For analogy, the Court referred to Order 25 Rule 1 and Order 41 Rule 10, which illustrate the circumstances under which security orders are issued under the Code of Civil Procedure.

Civil Procedure Order 0.25 rule 1 states, among other things, that when the plaintiffs are residents outside India and they do not own any adequate immovable property in India apart from the property that is the subject of the suit, the Court is authorized either on its own initiative or upon the application of any defendant to direct the plaintiffs to deposit security. The same provision allows the Court to pass a similar order when any party to the suit departs from India under circumstances indicating that, with a high probability, that party will not be willing or able to meet the costs of the opposite side when required. The rule further permits the Court to order security when the plaintiff is a woman, provided that the Court is satisfied that she does not possess sufficient immovable property within the country. In parallel, Order 0.41 rule 10 vests the appellate Court with a discretionary power to require the appellant to furnish security for the costs of the appeal, the original suit, or both, when circumstances resembling those described in Order 0.25 rule 1 are present. These provisions collectively create a framework whereby the Court can compel a party who lacks substantial property or who is likely to be absent from the jurisdiction to provide a financial guarantee before the proceeding may continue.

The Court then examined whether directing a petitioner to furnish security in situations covered by Order 0.25 rule 1 and Order 0.41 rule 10 would, in effect, impede the petitioner’s ability to assert or vindicate a fundamental right under Article 32. The order imposes a monetary obligation on the petitioner, and if the petitioner is unable to comply with that requirement—illustrated by the citation (1) [1959] 2 S.C.R. 316, 335—the petition would inevitably fail. The Court expressed the view that there is no doubt that a security order demanding the respondent’s costs can, in some instances, entirely bar the petitioner, and in every instance it creates a hindrance to the further progress of the petition. The Court observed that such an order does not facilitate a fair hearing in the same manner as procedural directions concerning the preparation of paper books or other steps necessary for the petition. While the Court acknowledged that the order is intended to protect the respondent’s interests and may therefore be regarded as fair in that limited sense, it emphasized that the fairness of the purpose does not alter the reality that the order’s effect is to delay, rather than to assist, the petition. In evaluating the constitutionality of the order or the rule that enables it, the Court held that the noble or just nature of the intended objective is immaterial, citing the principles laid down in State of Bombay v. Bombay Education Society and Punjab Province v. Daulat Singh. Consequently, the Court concluded that an order for security retards the assertion or vindication of the fundamental right under Article 32 and, in that respect, must be held to be inconsistent with that right. The Court also noted, without elaboration, that statistical data on Article 32 petitions filed in this Court over the preceding decade appear to show that the majority of such petitions arise from matters distinct from those involving security orders.

In the matters that came before the Court, the majority of the petitions were filed by citizens who alleged that their fundamental right under Article 19(1)(f) and (g) had been violated. Consequently, questions concerning the effect of State or Union welfare policies on citizens’ property rights were more often examined by the Court than those involving other fundamental rights. The Court observed that infringements of the freedoms of speech and expression, and of assembly, association or union – freedoms that some jurists have described as “preferred freedoms” (1) [1955] 1 S.C.R. 568, 583, (2) (1946) L.R. 73 I.A. 59, 7‑ – had generated far fewer petitions than violations of property rights. While it might be permissible to assume that petitioners who complained of encroachment upon their property could comply with security orders issued under the impugned rule, the Court held that such an assumption was of little relevance. The Court emphasized that if the right to approach the Supreme Court under Article 32 were to be limited or impaired by a security order, the petitioner’s ability to obey that order would not validate the order or the rule that authorized it. Accordingly, the practical considerations raised during the arguments were deemed to have no material bearing on the question of the rule’s validity, its constitutionality, or the existence of the relevant power of the Court under Article 142.

The learned Solicitor‑General contended that the powers granted to the Supreme Court by Article 142 were extremely wide and could not be curtailed by Article 32. He advanced his argument in two parts. First, he submitted that the language of Article 142 was expansive and, being the constitutional charter of the Court’s authority, should be interpreted liberally. The Court noted that this contention was well founded. Article 142(1) states that, in exercising its jurisdiction, the Court may pass such decree or make such order as is necessary to do complete justice in any cause or matter pending before it; further, any decree or order so made shall be enforceable throughout the territory of India in the manner prescribed by any law enacted by Parliament and, until such provision is made, in the manner prescribed by an order of the President. Second, the Solicitor‑General urged a comparison between Article 142(1) and Article 194(3), suggesting that just as the powers, privileges and immunities mentioned in the latter are not subject to the provisions relating to fundamental rights, the power conferred by Article 142(1) should likewise be insulated from those rights. To support this line of reasoning, he relied upon the Court’s earlier decision in Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha (1). The Court recalled that Article 194 deals with the powers, privileges and immunities of State Legislatures and their members, and that Article 194(3) provides …

The provision states that, in all other respects, the powers, privileges and immunities shall be those that the legislature may define by law from time to time, and until such definition is made, they shall be the same as those of the House of Commons of the Parliament of the United Kingdom and of its members and committees at the commencement of this Constitution. Consequently, the effect of this clause is that, until a specific law is enacted, the members of State Legislatures and their committees continue to enjoy the powers that the members of the House of Commons and its committees possessed at the moment this Constitution began to operate. One of the questions that the Court had to consider in Sharma was whether the rights, powers and privileges claimed by members of State Legislatures, derived from the House of Commons, were subject to the test laid down in Article 19. In other words, the Court examined whether, if those rights conflicted with the provisions of Article 19(1), the rights would have to yield to the fundamental rights guaranteed by Article 19(1). The Court held that Article 19(1)(a) and Article 194(3) must be read together, and the only way to reconcile them is to treat Article 19(1)(a) as subject to the latter part of Article 194(3), just as Article 31 has previously been read as subject to Article 265 in earlier decisions. Accordingly, the decision means that when a conflict arises between the rights claimed under the latter part of Article 194(3) and the fundamental rights of citizens under Article 19, the validity of those rights cannot be struck down on the ground that they are inconsistent with Article 19(1)(a). Relying on this decision, the counsel for the government argued that the power conferred on the Court by Article 142(1) is comparable to the privileges claimed by members of State Legislatures under the latter part of Article 194(3), and therefore an order passed by the Court under Article 142(1) could not be challenged for inconsistency with Article 32. The argument assumes that an order for security infringes the fundamental right guaranteed by Article 32 and suggests that Article 142(1) gives the Court jurisdiction to issue such an order. In the Court’s view, this argument is mistaken. To understand why, it is necessary to appreciate the actual holding in Sharma and its consequences. The true holding was that the rights claimable under the latter part of Article 194(3) were not subject to Article 19(1)(a) because those rights were expressly provided by a constitutional provision, namely Article 194(3). It would be impossible to hold that one part of the Constitution is inconsistent with another part.

The Court observed that the situation would be quite different if a State Legislature enacted a law concerning the privileges of its members, because such a statute would have to conform to the guarantee of freedom of speech and expression contained in Article 19(1)(a). If any provision of that statute were to conflict with any of the fundamental rights enumerated in Part III of the Constitution, the conflicting provision would be declared unconstitutional and struck down. In the same vein, the Court noted that where Parliament, under the authority of Article 145(1), were to pass a law dealing with petitions filed under Article 32, and if that law in substance duplicated the effect of the provisions of Rule 0.25 r. 1 or Rule 0.41 r. 10, such a law would be invalidated because it would seek to limit the fundamental right guaranteed by Article 32. The Court further held that an order issued either pursuant to the rules framed by the Court itself or under the Court’s jurisdiction granted by Article 142(1) must be treated in the same manner. Keeping this principle in mind, the Court found no difficulty in rejecting the Solicitor‑General’s reliance on Article 142(1). While acknowledging that the Court’s powers under Article 142(1) are indeed very wide and are intended to be exercised in the interest of justice, the Court emphasized that such powers do not permit the Court to make an order that is inconsistent with the fundamental rights protected by Part III of the Constitution. Any order that the Court issues to achieve complete justice between the parties must not only respect those fundamental rights but also must not conflict with the substantive provisions of the applicable statutes. Consequently, the Court concluded that Article 142(1) does not empower the Court to contravene the provisions of Article 32. The Court pointed out that the wide powers conferred on it for doing complete justice enable it, for example, to add parties to the proceedings, admit additional evidence, remand the case, or allow a new point to be raised for the first time. In exercising such powers, the Court is not bound by procedural rules when it is satisfied that a departure from those rules is necessary to achieve complete justice. Turning to the second argument presented by the Solicitor‑General, the Court considered the contention that Articles 142 and 32 should be reconciled through a rule of harmonious construction. The Court noted that, although the powers under Article 142(1) are expansive and may be exercised to achieve complete justice in any case, the Court nevertheless cannot issue an order that is plainly inconsistent with the substantive statutory provisions or with any constitutional guarantee.

Even when exercising the power conferred by Article 142 (1), the Court may not issue an order that is plainly inconsistent with an express statutory provision of substantive law, nor may it issue an order that conflicts with any constitutional provision. Consequently, there is no inherent conflict between Article 142 (1) and Article 32. The Solicitor‑General relied on the decision in K. M. Nanavati v. The State of Bombay. In that case the Court correctly acknowledged that, under Article 142 (1), it possessed the authority to grant bail in matters pending before it, which created an apparent clash between the Court’s power under that article and the power vested in the Governor of the State under Article 161. The existence of such a clash justified the application of the rule of harmonious construction. That rule, however, does not apply to the present matter because a proper construction of Article 142 (1) shows that the Court does not have the power to limit the fundamental right guaranteed by Article 32. Moreover, the very existence of such a power is contested, rendering the present case clearly distinguishable from Nanavati.

The next issue is whether a rule may be made under Article 145 (1) that provides for the court to require security in petitions filed under Article 32 when the court is satisfied that, should the petition fail, the petitioner may be unable to pay the respondent’s costs. The impugned rule is said to be based on the provisions of Article 145 (1) (f). One might assume that the phrase “costs of and incidental to any proceedings in the Court” in clause (f) could be interpreted to include an order for security. Yet, if such an order for security amounts to a violation of Article 32, the Court would lack authority to enact it under Article 145 (1)(f). Rules framed under Article 145 are made pursuant to a delegated legislative power and that power cannot be exercised in a manner that infringes fundamental rights. If the broad language of Article 142 cannot justify a security order in an Article 32 petition, then a rule made under Article 145 likewise cannot empower the court to issue such an order. It should also be noted that frivolous petitions filed under Article 32 can be dismissed at the preliminary hearing stage. Since 1959, petitions under Article 32 have been scheduled for a preliminary hearing, and only after the Court is satisfied that the petitioner has made a prima facie case does it issue a rule nisi against the respondent. Occasionally, the respondent is given notice even at this preliminary stage, and after being heard, a rule is issued on the petition. While it may happen that the respondent is unable to recover costs from the petitioner even if the petition is ultimately dismissed, that circumstance does not justify an order for security, because even indigent citizens or those residing abroad must be able to approach the Court when they believe their fundamental rights have been infringed.

The Court observed that the dismissal of the petition on its merits could not by itself justify the imposition of a security order. The Court reasoned that even persons who are indigent, as well as citizens residing outside the country, must be permitted to approach the Supreme Court when they allege that their fundamental rights have been violated. In the same manner, women who do not own any property must also be allowed to file a petition under Article 32 if they claim that their fundamental rights have been infringed. Referring to the analogy contained in Rule 0.25 r. 1(3), the Court held that no security order could be issued against such individuals because doing so would render the guaranteed right illusory. The Court explained that this principle forms the essence of the fundamental right guaranteed by Article 32, and that any rule which, to the extent that it provides for a security for costs, diminishes that essence must be declared unconstitutional.

The Court further explained that rules framed under Article 145, which regulate the practice and procedure of petitions filed under Article 32, are intended to assist and facilitate an orderly presentation and progress of those petitions until a final decision is rendered. Such procedural rules, the Court stated, do not conflict with Article 32. All proceedings before the Court must follow a recognised pattern that ensures fairness and a satisfactory hearing, and petitions under Article 32 are no exception to this requirement. The Court noted that orders may be issued on the merits of a petition either at an interlocutory stage or after the final decision, and that such orders cannot be challenged on the ground that they violate Article 32. In a proper case, the Court observed, the proceedings threatened against a petitioner may be stayed unconditionally, conditionally, or not at all; a receiver may be appointed over the disputed property; and, if the petition ultimately fails, the petitioner may be ordered to pay the respondent’s costs. The Court emphasized that the validity of all these measures cannot be questioned on the basis that they contravene Article 32.

Nonetheless, the Court warned that if a rule or an order imposes a financial liability on the petitioner at the very moment the petition is filed, and if that liability serves the interests of the respondent, the effect of non‑compliance with such a rule or order would be to terminate the petition altogether. The Court held that this situation would constitute an infringement of the fundamental right guaranteed to citizens to move the Supreme Court under Article 32. Consequently, the Court concluded that Rule 12, which provides for the imposition of a security, is invalid because it creates exactly the type of financial burden described. The Court stressed that a rule whose operation effectively bars a petitioner from proceeding unless a security is furnished defeats the purpose of Article 32, which is to guarantee access to justice for all citizens, irrespective of their financial standing.

The Court then turned to a further aspect of the matter that required incidental reference. It observed that the rule in question was evidently designed to secure the respondent’s costs in a properly established case. The Court examined how the rule would function if interpreted and applied in the manner suggested by the learned Solicitor‑General. The Court noted that, in current practice, an order for security is normally made unless the petitioner specifically requests either a reduction of the amount or a complete waiver of the security. The Court indicated that if the petitioner is

In the Court’s view, when a petitioner possessed sufficient means, requiring him to furnish security did not achieve any essential purpose, because any costs awarded after the final hearing could be recovered by the respondent through other means. Conversely, where the petitioner was lacking means, the Court could not, after granting relief on the petition, exercise its discretion to impose a security requirement, because such an order would defeat the very purpose of securing the respondent’s costs. The Court recognized that if discretion were exercised in favour of impoverished petitioners and security orders were omitted in their cases, no hardship would be inflicted upon them. Nonetheless, the Court held that the remaining discretion under this construction of the rule effectively concerned the right of indigent petitioners to invoke Article 32. Consequently, the Court concluded that the impugned rule, to the extent that it mandated the provision of security, could not be sustained. Accordingly, the petition was allowed, the order dated 12 December 1961 that had directed the petitioners to furnish security of Rs 2,500 was set aside, and no order as to costs was made.

The petitioner had filed petition number 348 of 1961, invoking the jurisdiction of this Court to issue a writ under Article 32 of the Constitution on the ground that certain orders issued by the Excise Commissioner of Uttar Pradesh were invalid. On 12 December 1961, the Court had ordered the respondents—the Excise Commissioner, Uttar Pradesh, Allahabad, and the State of Uttar Pradesh—to require the petitioner to “furnish security in the sum of Rs 2,500 in cash within six weeks for the costs of the respondents.” The petitioner failed to comply with that order and subsequently applied for its modification. That application was dismissed, but at the petitioner’s request the time for furnishing security was extended to 26 March 1962. The petitioner then stated that his efforts to collect the required amount had been unsuccessful and moved this Court to vacate the security order, contending that Rule 12 0. XXXV of the Supreme Court Rules, on the basis of which the order had been made, contravened the fundamental right guaranteed by Article 32(1) of the Constitution. He argued that the rule infringed the right to move this Court. At first glance, the rule did not directly restrict a litigant’s right to approach the Court for relief against infringement of fundamental rights; rather, it authorised the Court, in appropriate cases, to impose on a party—whether by a final or interlocutory order—terms relating to costs, including a requirement to provide security for costs or other purposes, as the Court deemed fit. The Court noted, however, that an order directing the petitioner to furnish security for the respondent’s costs created a potential obstacle to the prosecution of a petition for relief against the alleged infringement of fundamental rights.

The Court examined whether the order directing the petitioner to furnish security, and the authority that issued it, were void on the ground that they interfered with the petitioner's claim of a fundamental‑rights violation. Article 32 of the Constitution, the Court observed, contained two essential provisions. The first clause guaranteed a person the right to approach the Supreme Court by “appropriate proceedings.” Clause (4) made clear that this guarantee could not be suspended except in the manner prescribed by the Constitution. Clause (2) affirmed the Supreme Court’s jurisdiction to issue directions, orders or writs, including the specific writs enumerated for the enforcement of any right conferred by Part III. The Court explained that a democratic Constitution not only acknowledges natural rights inherent to a free citizen but also establishes a machinery to safeguard those rights against invasion. Chapter III of the Constitution enumerated fundamental rights such as equality before the law with a guarantee against discrimination, freedoms of speech, assembly, association, movement and residence, the right to acquire, hold and dispose of property, the right to practice any profession or to carry on an occupation, trade or business, freedom of conscience, the right to practice and propagate religion, and the freedom to manage religious affairs together with cultural and educational rights. After articulating these rights—some positive, some negative, some absolute and some subject to reasonable restrictions—the Constitution rendered any law inconsistent with them, whether pre‑existing or enacted after the Constitution’s commencement, void to the extent of the inconsistency or contravention.

The Court noted that a person whose fundamental rights were infringed by legislative or executive action could seek relief through ordinary civil courts by instituting appropriate proceedings. Nevertheless, the Constitution also empowered the High Courts and the Supreme Court to issue writs for the protection of those fundamental rights and expressly guaranteed, under Article 32(1), the right to move the Supreme Court for their enforcement. Consequently, the right to approach the Supreme Court to enforce fundamental rights was itself a fundamental right. Any law that was repugnant to the effective exercise of this right, to the extent of inconsistency or contravention, would be void. The Court then addressed whether the right must be so unfettered that any restriction—direct or indirect—would render the impinging law void. Counsel for the petitioner, using hyperbolic language, argued that the right was “absolutely absolute” and that even a law that did not directly restrict the right but allowed the Court to impose a restriction on its exercise should be deemed void. The Court, however, cautioned that the guaranteed right was not wholly unqualified or unrestricted.

Article 32(1) guaranteed a right to move the Supreme Court, but it specified that the move must be made by “appropriate proceedings”. Accordingly, the provision itself placed a limitation on the exercise of the right. “Appropriate proceedings” included the procedural requirements concerning the form of the petition, the conditions for lodging it, and compliance with reasonable directions that would ensure the smooth conduct of matters before the Court. The power to make rules of practice and procedure for the Court, read together with the guarantee in Article 32(1), therefore authorised the imposition of procedural restrictions that were necessary for the orderly progress of a petition seeking relief for a breach of a fundamental right. Counsel for the petitioner argued that the right to move the Court for enforcement of a fundamental right was absolute and that any Court rule requiring a petition to be filed legibly, to be type‑written or lithographed, to be accompanied by a translation of documents not in English, to include affidavits, to bear court‑fee and process‑fee for service of notice, or any similar requirement should be held invalid because such rules, in the counsel’s view, obstructed the exercise of the right and imposed significant financial obligations. The Court rejected this extravagant view of an absolute right. It held that the contention that the right is wholly unfettered was not tenable and was not sustained. Instead, the Court recognised that the guarantee under Article 32(1) could be regulated by general or ad hoc directions that aided and facilitated a fair and orderly disposal of the case.

The Constitution, the Court observed, guaranteed the right to move the Supreme Court in order to claim redress against an alleged infringement of a fundamental right. The Supreme Court was the custodian of the fundamental rights enshrined in the Constitution, and it would be a failure of duty to refuse to entertain a petition for enforcement of a fundamental right or to decline to adjudicate such a petition. The Court could not direct a litigant to obtain relief from a civil court or any other remedy where a prima facie infringement of a fundamental right was made out. However, once a petition was entertained, the Court remained bound to treat the parties equally. The petitioner claiming infringement of a fundamental right was entitled to have the petition heard and disposed of according to law, but the petitioner was not entitled to any special privileges beyond those available to any other litigant before the Court. The Court required that the parties’ claims be supported by evidence, that witnesses in support be produced before the Court or examined on commission, and that if a party died or became legally unable to continue, a representative of that party be brought on record. If the pleadings were improper, they could be struck off or amended, and where the issue had already been decided, the rule of res judicata would apply.

In order for a party’s representative to be recognized in the proceeding, that representative must be placed on the record. If the pleadings are defective, the Court may strike them out or allow them to be amended. Moreover, when the dispute being raised has already been finally decided by a competent authority, the doctrine of res judicata applies and the claim cannot be relitigated. The Court observed that the procedural steps for trying and adjudicating a dispute that does not involve the enforcement of a fundamental right are, in substance, the same as those applicable to a petition filed under Chapter III for enforcement of a fundamental right. An order directing the petitioner to provide security for the respondent’s costs, or for any other purpose, is a procedural order. Such an order only becomes impermissible if it effectively amounts to a denial of the petitioner’s right to move before the Court; otherwise, the Court saw no basis for insisting on a special rule that would create an exception for proceedings involving fundamental rights.

The Court noted that the impugned rule does not require that a security order be made automatically. The rule merely acknowledges that the Court, in appropriate cases, has the jurisdiction to demand security; it does not prescribe the exact stage at which the order must be issued. The jurisdiction is expressed in very general terms and is to be exercised only when the Court deems it necessary to achieve justice in the proceeding. Recently, a practice has developed whereby, when a rule is issued in a petition for enforcement of a fundamental right, the Court is asked to decide at the outset whether the petitioner should furnish security for the respondent’s costs. The Court then considers the matter and, if satisfied that such an order is necessary, directs the petitioner to furnish security. However, the Court also observed that orders of this kind are frequently recalled or modified in view of the overall justice of the case.

The Court further explained that although the practice of addressing the security question at the very initial stage may be reconsidered, the rule itself does not mandate that approach. In a suitable case, the Court may, of its own motion, issue an order for security at the beginning of the proceeding, later in the process, or in response to a request from the respondent. All such orders are exercised as part of the Court’s jurisdiction, taking into account the circumstances and the requirement of complete justice between the parties. In assessing the nature of this jurisdiction, reference must be made to Article 142 of the Constitution, which provides, in its first clause, that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” The Court concluded that this constitutional jurisdiction unquestionably includes the power to order security where it is deemed appropriate.

In this case, the Court observed that the rule under challenge merely set out a part of the Court’s jurisdiction that was granted by Article 142 of the Constitution. The expression “as it thinks fit,” according to the Court, meant that when the Court considered it necessary for the purpose of doing complete justice in the matter before it, the Court could issue an order requiring the furnishing of security. The Court held that it was unnecessary to examine whether, under the delegated legislative power of Article 145(1), the Court could make a rule demanding security for costs from a litigating party, even if such a rule might appear to limit the exercise of the fundamental right guaranteed by Article 32. The Court emphasized that the impugned rule was not essentially a rule of practice and procedure; rather, it pertained chiefly to the Court’s jurisdiction, a jurisdiction that derived its source from Article 142.

The Court then considered whether a petitioner could claim immunity from an order to provide security for costs, or for any other purpose, simply because the petitioner had commenced proceedings under Article 32(1) of the Constitution, even though the Court might consider such an order necessary to achieve complete justice. The Court explained that the rule did not prescribe that an order for security must be made automatically; instead, it merely recognized the Court’s authority to issue an order demanding security in appropriate cases, without specifying the precise stage at which such an order should be made. Assuming that an order issued in a particular case might be erroneous, the Court held that the constitutional jurisdiction under Article 142 to make orders essential for complete justice remained unaffected. The Court could not accept the proposition that, when dealing with a claim for relief concerning the infringement of a fundamental right under Article 32, the Constitution‑based power to demand security for the respondent’s costs could not be exercised, even if the Court was convinced that such an order was overwhelmingly warranted. The Court noted that it was common for litigants, while raising pleas of constitutional invalidity of statutes or executive actions affecting fundamental rights, to also allege bad faith, arbitrariness, misuse of power for ulterior motives, and similar improper conduct. No recognised procedure existed to separate the investigation of such allegations of misconduct from the purely interpretative issues. Consequently, the Court was obliged to hear the entire case, addressing both the validity of the statutes or executive actions and the allegations of improper conduct, before finally adjudicating the petitioner’s claim. The Court further warned that if, because of the nature of the proceedings, it were barred from ordering an applicant for redress to furnish security before the applicant could exercise his constitutional privilege, the Court would cease to function as a court of justice and would become an instrument of oppression.

In the view expressed, if the Court were required to prosecute the claimant’s suit without permitting the petitioner to furnish security for costs, the Court would cease to act as a forum of justice and would rather become an instrument of oppression. The rule that was challenged is only declaratory of the jurisdiction conferred on the Supreme Court by Article 142 of the Constitution; consequently, no conflict arises between statutes enacted by the State and the guaranteed right under Article 32(1) to approach this Court through appropriate proceedings to enforce fundamental rights. Therefore, the constitutional provisions embodied in Article 142 and Article 32(1) must be interpreted in a harmonious manner. On one side, the Constitution guarantees a litigant the right to invoke this Court by way of an appropriate proceeding for the enforcement of a fundamental right. On the other side, the same Court possesses jurisdiction to issue any order that it deems necessary in the interests of justice, including, even in unsuitable cases, an order requiring the petitioner to pay costs. There is no justification for assuming that the exercise of the Court’s jurisdiction must be subordinate to the exercise of the litigant’s right to approach the Court. Article 32(1) appears in Chapter III, where the right to approach the Court is itself declared a fundamental right, while Article 142 is situated in Part V, which deals with the Union judiciary. Nevertheless, because both provisions are components of the same constitutional document, Chapter III does not enjoy a special sanctity that would allow its provisions to automatically prevail over those in other parts.

In the case of Pandi M.S.M. Sharma v. Shri Sri Krishna, this Court examined whether Article 194, which governs the powers, privileges and immunities of State Legislatures and their members, was subordinate to the fundamental right of freedom of speech guaranteed by Article 19(1)(a). The petitioner argued that the rights, powers and privileges of members of the House of Commons in England, which could be claimed by State Legislature members under Article 194, must still satisfy the reasonableness test set out in Article 19(2), and that in any inconsistency the latter must yield to the fundamental right protected by Article 19(1). The Court held that Articles 19(1)(a) and 194 must be read harmoniously, and the appropriate method of reconciliation is to consider the general provision of Article 19(1)(a) as subject to Article 194, in the same way that Article 31 is read as subject to Article 265. However, the general character of a provision is not the sole criterion for interpretation. Sections (1) and (2) of Article 13 declare any law, whether existing before the Constitution or enacted thereafter, to be void if it is inconsistent with, or takes away or abridges, any fundamental right. Consequently, the exercise of legislative power that is derived from constitutional provisions is unquestionably subject to the constraints of Article 13(2). Nevertheless, one part of the Constitution cannot nullify another part; both must be read together and harmonized. Thus, when read in this manner, the guarantee of the right to approach this Court through appropriate proceedings for the enforcement of fundamental rights cannot

The Court observed that a statutory provision could not be permitted to encroach upon the jurisdiction of the Court where such encroachment was necessary for the purpose of doing complete justice. In other words, the legislature could not withdraw from the Court a power that was essential for the Courts to fulfil their constitutional duty to grant full and effective relief. Accordingly, even in a proceeding instituted under Article 32 (1) of the Constitution, the Court retained full competence to pass any order that it considered appropriate for the ends of justice, and that competence included the authority to direct the respondent to furnish security for the costs that might be awarded against it. The Court further examined the rule that had been challenged on the ground that it purported to limit the Court’s power to impose conditions relating to the grant of security. After consideration, the Court held that the impugned rule, which expressly set out the jurisdiction of the Court to prescribe terms for giving security, was not void and therefore remained valid. Acting in accordance with the opinion expressed by the majority of the judges, the Court allowed the writ petition and consequently set aside the earlier order that had required the petitioners to furnish security in the amount of two thousand five hundred rupees. The Court also made clear that no order as to costs would be made in the present matter.