Courts – Guardian of Our Liberties : Judicial Orders can Violate Fundamental Rights?

The Constitution of a country is the supreme law. A written Constitution with a Bill of Rights seeks to place certain human rights and fundamental freedoms beyond the reach of ordinary laws. When human rights are incorporated into the municipal law and guaranteed by a written constitution, they are called fundamental rights and are justiciable and enforceable. As the Supreme Court significantly observed in Minerva Mills Ltd. v. Union of India1:

 

All States, whether democratic or authoritarian, purported to govern for the welfare of the people. What distinguishes a democratic State from a totalitarian one is that a free democratic State respects certain basic human rights or fundamental rights and endeavours to achieve its objectives through the discipline of fundamental freedoms.

 

We begin with the concept of “State” in Article 12. The constitutional mandate in many of the provisions in the chapter on fundamental rights is to the State not to violate fundamental rights. The State is prohibited from making laws inconsistent with Part III. Fundamental rights are enforceable against the State whose import has been expanded over a period of time.

 

The protection and enforcement of fundamental rights and freedoms is both the power and duty of the courts and the grant of appropriate remedy is not discretionary but obligatory. Even in England with no Bill of Rights it was said over a century ago:

To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand. (Scott v. Scott2)

 

The judiciary, particularly the Supreme Court, is constituted the guardian of fundamental rights. Consistent with that function and responsibility the Court cannot refuse to entertain cases seeking protection against infringement of fundamental rights. A petition under Article 32 has to be entertained if the existence of a fundamental right and its breach, actual or threatened, is alleged and prima facie established. The position of the High Courts under Article 226 in this regard is no different.

 

Every action of the State, legislative, executive or judicial, if it violates fundamental rights is void. It is well settled that a writ lies against the judiciary in the exercise of its non-judicial functions, administrative or executive like appointments of officials as also legislative like rule making. But it has been held that the judiciary is not included in “State” in Article 12 insofar as it relates to exercise of judicial power and no writ would lie against it. The raison d’être for this is that a judicial decision in an adjudication by a court of competent jurisdiction cannot affect fundamental rights and no writ of certiorari can be issued against a court. The proposition that judicial orders cannot at all violate fundamental rights appears to suffer from some fundamental flaws.

 

Can judicial orders made by a court which is the guardian of our rights and liberties result in breach of fundamental rights and, if so, with what result and remedy? Who watches the watchmen? Can the judiciary in the discharge of judicial functions violate fundamental rights and be amenable to the writ jurisdiction is an issue of seminal importance touching upon the rule of law and our constitutional scheme.

 

In this context it has been held that (i) the judiciary in the discharge of its judicial functions cannot infringe fundamental rights, and (ii) no writ would lie against the judiciary.

 

The majority in Mirajkar3 held that it is singularly inappropriate to assume that judicial decisions can affect fundamental rights; at best it could only be a mistaken or wrong exercise of jurisdiction which can be corrected in appeal or revision but it is not open to be corrected by exercise of writ jurisdiction. On the facts it was held that there was no violation of the fundamental right under Article 19(1)(a), as contended. Assuming that a fundamental right had been violated, it was considered and held that a writ of certiorari was not available against the High Court.

 

Antulay4 is perhaps the only decision where the Court held by a majority that an order of the court, be it administrative or judicial, against the provisions of the Constitution or violative of principles of natural justice can always be remedied ex debito justitiae. Of course this was an appeal by special leave and not a writ petition.

 

There was a powerful dissent by Venkatachaliah, J. where the learned Judge held that the impugned withdrawal of the case from the Special Judge to the High Court had been challenged earlier and upheld by the Supreme Court and it could not again be sought to be undone by a side wind, as it were. There was thus a finding against any such violation; the principle of finality of judgments/orders would apply.

 

In Hurra case5 it was laid down that a judgment may be assailed as a nullity on grounds like violation of natural justice, where the applicant was not a party to the lis or was not notified of the proceedings or where there was reasonable apprehension of bias of the Judge. But even in Hurra5 which innovated the concept of a curative petition and held that a judgment may be impugned as noted above, it was emphatically reiterated that a judicial decision cannot be violative of fundamental rights and no writ would be maintainable against the judiciary on that ground. Further a curative petition is a proceeding after one has exhausted all remedies-appeal, review, et al.

 

It is only in Mirajkar3 that the question directly arose whether a judicial order may breach fundamental rights, and if it did, whether as a remedy therefor a writ could issue to a superior court. The majority answered both in the negative-the judiciary cannot in discharging judicial functions infringe fundamental rights and no writ of certiorari will issue to a superior court to remedy the violation, if any. The dissent of Hidayatullah, J. took the opposite view on both counts.

 

There are two aspects of the issue : one, whether a judicial decision can violate fundamental rights and the other, the remedy therefor if it did-whether a writ would lie.

 

It is significant that Mathew, J. hit the nail on the head when he observed in Kesavananda Bharati6 that Hidayatullah, J. in his dissenting judgment in Mirajkar3 rightly took the view that the judiciary is also “State” within the definition of that word in Article 12. He went on to say that convicting and punishing a person twice for an offence by a judgment is equivalent to the “State passing a law in contravention to the rights conferred by Part III” for the purpose of enabling the person to file a petition under Article 32 to quash the judgment.7

 

It is submitted that in all cases, particularly Mirajkar3, the Court’s enquiry started from the wrong end i.e. whether a writ of certiorari would lie to a superior court. The Court conceptualised and defined the wrong having regard to and conditioned by the remedy available to right the wrong. This question of the remedy if there is a wrong is indeed the secondary question; the primary question is whether a judicial order can infringe a fundamental right. The Court seems to have forgotten the maxim that every right has a remedy.

 

Any State action, legislative, administrative or judicial, which violates “due process”, either directly or indirectly, is void. [Basu’s Commentary on the Constitution of India, (7th Edn.) Vol. C, p. 29 – with reference to the position in the USA.] There are many instances. The American Constitution XIV Amendment is similar to our Article 14.

  1. … it has never been suggested that State court action is immunized from the operation of those provisions [XIV Amendment’s prohibitory provisions] simply because the act is that of the judicial branch of the State Government. [Shelley v. Kraemer8]

 

It may be difficult to establish violation of Article 14 or any other provision of Part III by a Judge acting judicially, but if proved it has to be condemned and remedied. Transfer of cases-civil and criminal-which the law permits, withdrawal of cases before a smaller Bench to a larger Bench may be impugned as being arbitrary or violating Article 14 by denying the petitioner a right of appeal available to all other litigants. That would be carrying matters to absurd lengths and making a mockery of the system of administration of justice. Otherwise a litigant could always complain that a Judge heard a particular case for a longer time and his for a shorter duration and denied him equality of opportunity offending Article 14. These are not the kind of violations of fundamental rights that we are discussing, but it is something more substantial.

 

As Seervai points out as an illustration [H.M. Seervai, Constitutional Law of India, 4th Edn., Vol. 1, p. 395], if a Judge denied discretionary orders of a particular kind to members of one community while granting them under similar circumstances to members of another community, it is difficult to see how the court can shy away from its duty of nullifying such action as violation of fundamental right. To suggest that the aggrieved person should exhaust his remedies of appeals and/or revision would mean that the person is denied the fundamental right of having a speedy, effective remedy and the fundamental right and constitutional remedy under Article 32 is rendered a sonnet writ on water. It is not inconceivable that a Judge may commit breach of Articles 14, 15, 17, 19, 20, 21, 22 by his judicial order.

 

It is not uniformity of decisions or even the process of hearing or merely erroneous or mistaken or wrong decisions on constitutional or other legal points that can be said to be violative of fundamental rights. Such challenge must be more solid and meaningful and rest on surer foundations.

 

What may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination. [Stone, C.J. in Snowden v. Hughes9] As Hidayatullah, J. said in his Mirajkar3 dissent:

  1. 122. The power and jurisdiction of this Court [under Article 32] is so narrow that nothing on the merits of a controversy of a civil case can ever come up before it under Article 32. … It is unlikely that this Court will torture cases to fit them into Article 32. It cannot be brought here by pleading breach of fundamental rights. It is only when a Judge directly acts in some collateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient, a case under Article 32 can be made out. … Where a High Court Judge acts collaterally to cause a breach of fundamental right, I am clear that an approach to this Court is open under Article 32.10

 

It is fruitful to refer to the concurring opinion of Frankfurter, J. in Snowden v. Hughes9:

  1. The Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the courts or the executive agencies of a State.11

 

This passage and the one from Stone, C.J. in the same case quoted supra were quoted by S.R. Das, J. in Budhan Choudhry v. State of Bihar12. But there is another passage in the same paragraph in the judgment of Frankfurter, J. (as Seervai points out p. 390) which is directly relevant:

  1. 30. … And if the highest court of a State should candidly deny to one litigant a rule of law which it concededly would apply to all other litigants in similar situations, could it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws?13

 

It is submitted that the two passages in the opinion of Frankfurter, J. taken together seem to lay down the correct principle, though that case did not relate to judicial orders as pointed out by Gajendragadkar, C.J. in Mirajkar3.

 

It is noteworthy that a unanimous Constitution Bench in Shivdev Singh v. State of Punjab14 held that the inherent power under Article 226 could be invoked by way of a writ petition to review an order made in an earlier writ petition where the High Court had passed an order to the prejudice of the person filing the fresh writ petition without having heard such person.

 

It is necessary and appropriate at this stage to refer to two other cases which have a bearing on this issue:

 

In Supreme Court Bar Assn. v. Union of India15, the SCBA filed a writ petition under Article 32 seeking a declaration that only the Disciplinary Committee of the Bar Council can impose any punishment on an advocate for professional misconduct and suspend his licence and courts have no such jurisdiction including under Articles 129, 142 or 215. This was a sequel to the Supreme Court in purported exercise of powers under Articles 129 and 142 holding16 an advocate guilty of contempt of court and sentencing him to simple imprisonment for 6 months which sentence was suspended for the time being and further suspending his licence/sanad for 3 years thereby debarring him from practising as an advocate. The Constitution Bench in SCBA15 unanimously held that the Court had no jurisdiction to suspend an advocate’s licence in exercise of powers under Article 129 read with Article 142. This was indeed a case of violation of fundamental right by a judicial order though it was not so contended expressly and the Supreme Court in exercise of its writ jurisdiction granted the relief.

 

In M.S. Ahlawat v. State of Haryana17, the challenge again was by way of a writ petition under Article 32 to an earlier order of the Supreme Court whereunder the petitioner was held guilty of an offence under Section 193 IPC-fabricating false records before the Supreme Court-and convicted and sentenced and he served the sentence. This was based only on the investigation which the Supreme Court had ordered and was without any trial. He was also convicted and sentenced for contempt of court under Article 129 which was not challenged. It was contended that in convicting the petitioner under Section 193 IPC the Court had completely stultified the procedure prescribed under the Code of Criminal Procedure thereby acting contrary to the mandate of Article 21. The Court observed that when a litigant complains of miscarriage of justice by an order of the Court passed without jurisdiction or without following the due procedure and resulting in his incarceration losing valuable liberty for a period with attendant catastrophe descending on his career and life, the Court has no option but to examine the correctness of the contentions. The Court also observed that to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. Accordingly the Court unhesitatingly recalled and set aside the order18 made earlier convicting the petitioner under Section 193 IPC, while upholding the conviction and sentence under Article 129.

 

The Court further held that the order setting aside the conviction would not enable the petitioner to claim any compensation or initiate any proceedings in any court arising out of his conviction except to use the same in any proceeding initiated against him departmentally regarding his service. This was on the basis of an affidavit filed by the petitioner. But such affidavits and undertakings or contracts waiving one’s fundamental rights are void and unenforceable. It is submitted that the Court was clearly not right as far as this part of the order is concerned.

 

It is seen that this was a typical case of breach of a person’s fundamental right by a judicial order of the highest court. It was so contended expressly in a writ petition under Article 32 which was allowed. It would appear that in both these cases the Court was not impeded by procedural technicalities. What, therefore, emerges is that the Supreme Court has granted the appropriate relief without expressly acknowledging violation of fundamental rights by judicial orders. This does not seem to be apt or commendable. Yet curiously even thereafter in Hurra case5 the Supreme Court asserted that a judicial order cannot violate fundamental rights.

 

Interestingly and significantly the Supreme Court in Ram Deo Chauhan v. Bani Kanta Das19, expressly recognised that a judicial order may violate fundamental rights. This was a review in a writ petition under Article 32. It was stated,

 

The assumption … that there can be no violation of a person’s human rights by a judgment of this Court is possibly not correct. … The instances of this Court violating the human rights of citizens may be extremely rare but it cannot be said that such a situation can never happen. We can remind ourselves of the majority judgment of the Constitution Bench in ADM, Jabalpur20.21

 

The order of the Governor under Article 161 commuting the death sentence to life imprisonment which was set aside in the earlier writ petition was restored.

 

It is pertinent to refer to Anjan Kumar Banerjee v. State of W.B.22 where on 20-2-2009 a two-Judge Bench referred to a larger Bench the matter whether breach of fundamental rights is possible by courts-judicial order, whether court is included in “State” under Article 12 and whether a writ petition could be entertained to recall earlier orders of the court on the ground that they violated fundamental rights. But quite unfortunately on 9-10-2012 a three-Judge Bench dismissed23 the case. The questions have remained unanswered.

 

In Ashiq Hussain Faktoo v. Union of India24 (decided on 24-9-2014 by a two-Judge Bench) a writ petition under Article 32 was filed against the Supreme Court judgment25 reversing the judgment of acquittal to that of conviction allegedly based on impermissible confession breaching Article 21. It was ordered that the writ petition be converted into a review petition to be heard in open court on the fundamental principles of review as well as the maxim ex debito justitiae. However, a three-Judge Bench in Ashiq Hussain Faktoo v. Union of India26 (decided on 30-8-2016) held that frantic cries of injustice founded on perceived erroneous application of law or appreciation of facts was not enough to extend the frontiers of the ex debito justitiae jurisdiction, that open court hearing of review petitions in terms of Mohd. Arif27 decision was available as of right only in death sentence cases and the petition was dismissed as not maintainable on the basis of Hurra5 decision. It is submitted that this is unexceptionable.

 

As the Almighty does not share His omniscience and infallibility with the judiciary, it would be naive to suggest that judicial function/order can never result in breach of fundamental rights. Laying down such a legal position is merely shying away from the truth and an illustration of an egocentric exercise of power. It cannot be stated as a proposition that the exercise of judicial/quasi-judicial power by any authority cannot at all result in breach of fundamental rights. Judicial power of the State stricto sensu is exercised by courts. However, it is also exercised in some ways and to some extent by the other wings. The Tribunals and even executive authorities exercise that power. Parliament and State Legislatures in the exercise of their privileges-enforcing the privilege and punishing for its breach-exercise a quasi-judicial power. That may also result in breach of fundamental rights which makes the proceeding suffer from not mere procedural irregularity but substantive illegality or unconstitutionality rendering that exercise of power amenable to review and correction in writ jurisdiction. When such is the legal position, it is incomprehensible as to how and why, when the judiciary discharges judicial function there can never be any violation of fundamental rights. When the exercise of quasi-judicial power can result in violation of fundamental rights, there is no reason why exercise of judicial power stricto sensu cannot breach fundamental rights. This is all the more possible in cases of judicial legislation where decisions of the court may often violate rights, including fundamental rights, of persons not before the court. It is immaterial in this context as to which body or authority or wing exercises that power. There cannot be an artificial exclusion of the judiciary on any fragile ground. That a judicial decision cannot affect fundamental rights appears to be mere ipse dixit without any constitutional or jurisprudential support. It would mean that the judiciary while discharging judicial functions is above the Constitution. The superior judiciary too is a creature of the Constitution. It cannot be placed on a high pedestal removed from and above the Constitution and the law.

 

Basu in his Commentary on the Constitution of India (7th Edn., Vol. A/1, pp. 256-65), also points out how the proposition is flawed. Apart from the fact that the exclusion of a judicial decision emasculates the concept of “State action” as embodied in Article 12, it is not supportable either on juristic principles or on the very text of Article 12 itself. The very foundation of the assumption that Article 12 does not extend to courts does not survive after the decision in Rajasthan Electricity Board28.

 

To say that the application of the fundamental rights has a narrower scope against a judicial decision is different from the radical proposition that the Judiciary is excluded from the definition of “State” in Article 12, so that there cannot be any collateral constitutional remedy against a judicial decision. (p. 257)

 

He further says (p. 261) that the courts too are limited by the Constitution’s mandatory provisions and cannot be allowed to override fundamental rights under the shield that they have, within their jurisdiction, the right to make an erroneous decision. A decision contravening fundamental rights is not merely a wrong decision, but one without jurisdiction and a nullity. It cannot be contended that a court has jurisdiction to violate the Constitution-the higher law by or under which all courts are constituted; a constitutionally invalid decision is void for want of jurisdiction.

 

Such cases of violation of fundamental rights by the judiciary may be few and far between and it may be difficult to delineate their contours with certainty and precision. The court would have to examine and give a finding in each case. But as a proposition it may be constitutional blasphemy.

 

The major premise is that the judiciary too (like any other authority) even in rendering a judicial decision may violate fundamental rights. This can be said to be firmly established from the discussion above. The minor premise is-what is the remedy for such violation?

 

Whether a judicial order can violate fundamental rights does not and cannot depend upon what, if any, is the remedy for such violation. The existence of a constitutionally guaranteed fundamental right cannot and does not depend on the technicalities of its enforcement and the availability of a remedy. Remedy, if not readily visible or available, would have to be innovated and the fundamental right enforced.

 

The root principle of law married to justice is ubi jus ibi remedium, as stated in Shiv Shankar Dal Mills v. State of Haryana29, that is, where there is a right there is a remedy. It is not the other way round. Hence violation of a right must necessarily have a remedy. Now, as has been noted, that the judiciary may, in exercise of judicial powers, commit a breach of fundamental rights, such breach cannot go unredressed. Therefore the issue of whether a writ of certiorari will go to a court is really immaterial and need not detain us. That is looking at the problem from the wrong end.

 

In Pinochet case30 the House of Lords set aside its decision (R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte31). So did our Supreme Court in SCBA15 and Ahlawat17. In Hurra5 the Supreme Court held that the decision of the Court may be assailed and set aside. How that is to be done-in what proceedings and in what manner-is altogether different. Strangely and unfortunately the Supreme Court has examined the whole issue from the wrong end, from the point of view of the remedy, whether it can be effectively granted. In so doing the Court missed the cardinal principle that where there is a right and it is infringed there ought to be a remedy.

 

Article 32 guarantees protection and enforcement of fundamental rights and invests the Supreme Court with power to issue appropriate directions, orders or writs for the said purpose including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Under Article 226 the High Courts are invested with the same power for the enforcement of fundamental rights and for any other purpose. It is well settled that in India we do not have to be bogged down by the technicalities of English prerogative writs and the expression “writs in the nature of” has enlarged the jurisdiction and made it more comprehensive. It is equally settled right from 1950 itself that the powers conferred on the Supreme Court under Article 32 are much wider and not confined to issuing prerogative writs only (Rashid Ahmed v. Municipal Board, Kairana32, SCC at p. 227, para 14 : AIR at p. 165). Any construction introducing unnecessary procedural restrictions defeats the very purpose of Articles 32 and 226 (Dwarka Nath v. ITO33, AIR at p. 84-85).

 

In M.C. Mehta v. Union of India (Shriram-Oleum Gas)34, the Constitution Bench unanimously laid down:

  1. 7. … this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of fundamental right and under Article 32(2) 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. … Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32.35

What is said of the Supreme Court under Article 32 would apply pro tanto to the High Courts under Article 226.

 

To start with the deficiencies of the English prerogative writ of certiorari to curtail or deny protection of the guaranteed right under Article 32 is to put the cart before the horse. In the light of this, and even otherwise, examining whether a writ of certiorari can issue to a court to remedy the infringement of a fundamental right is both unnecessary and inappropriate. Enforcement is not the real test of the existence of a right or its violation.

 

Fundamental rights are guaranteed and any action infringing fundamental rights is void. The right to have the fundamental rights enforced is itself a fundamental right. Article 32 deals with remedies for enforcement of fundamental rights as is clear from its heading. Article 226 is no different. It is trite that the existence of a right is the foundation for invoking the writ jurisdiction. The perceptive remarks of Mathew, J., though extra curial, are illuminating:

 

The realization that Article 226 is concerned with remedies, and not rights, is the beginning of wisdom in constitutional law.36

 

He further states that hence if a person has a right, he would be entitled to enforce that right by a suit on the basis ubi jus ibi remedium even if the remedy by way of a writ is not available. The scope of declaratory actions being wide enough, the relief against breach of fundamental rights would be available.

 

Therefore the relief against violation of fundamental rights by a judicial order, even of the highest court, can be obtained in a regular civil suit in the court of first instance. Such is also the position laid down by the Privy Council in Secy. of State v. Mask & Company37 that even if the jurisdiction of the civil courts is excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. When that was the position prior to the Constitution, then with fundamental rights guaranteed now the case for the courts to intervene would be even stronger. What can be done and secured in a suit in a civil court can also be secured in proceedings under Article 226 before the High Court. The only specialty about Article 32 is that it is itself a fundamental right. All these proceedings under Article 32 or 226 or a civil suit under Section 9 of the Civil Procedure Code are different remedies. The relief may take varied forms and may be moulded to meet the exigencies. Theoretically this appears to be the unassailable position. If there are any practical problems, that is another matter.

 

It is submitted that it would not be necessary to issue a writ of certiorari to quash the offending judicial order which violates fundamental right. It would be enough if there is a declaration to the effect that the order is null and void.

 

As pointed out in Wade and Forsyth, Administrative Law (10th Edn., p. 529) dealing with declaratory orders:

 

A mandatory order is often used as an adjunct to a quashing order. … But either remedy may be used by itself. … If a mandatory order is granted without a quashing order, the necessary implication is that the defective decision is a nullity, for it is only on this assumption that a mandatory order can operate. A simple mandatory order does the work of a quashing order automatically.

 

If this is so in England without a written Constitution and a Bill of Rights and the historical technicalities of prerogative writs, what to say of India-with guaranteed fundamental rights with the right to enforce those fundamental rights itself being a fundamental right that is guaranteed. The Court may make a declaratory order that what is complained of has breached fundamental right(s) and cannot be allowed to remain.

 

It is needless to say that all this is, of course, subject to the finality of judgments/orders. What is necessary is that a challenge on this ground has to be examined and a decision given, it is not that successive or repeated challenges can be raised till one succeeds.

 

It is, therefore, submitted that the postulate that a judicial order cannot at all violate fundamental right(s) and there is no remedy in writ jurisdiction for such violation, if any, is wholly unsupportable. Even when the position has been diluted by the Court granting relief in some cases, the ghost of Mirajkar3 seems to haunt us and its incantation continues to be repeated. Mirajkar3 being overruled and buried in the dustbin of history would serve the law and the nation better. The vindication of fundamental rights against their breach by whomsoever is not a confrontation but it is really the protection of the integrity of the Constitution, a solemn exultation of the Constitution which is the judiciary’s and particularly the Supreme Court’s constitutional obligation.

 

The exercise of the power of judicial review by issue of appropriate writs, especially when it concerns protection and enforcement of fundamental rights has to be robust. It is of utmost importance that, as Chandrachud, J. said, “[in] the last analysis the people for whom the Constitution is meant, should not turn their faces away from it in disillusionment for fear that justice is a will-o’-the wisp.” (State of Rajasthan v. Union of India38.)


*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 3 SCC J-44

* Advocate. Author, Working of the Constitution : Checks and Balances (1st Edn. 2014, Eastern Book Company) and Revising Author, V.G. Ramachandran’s Law of Writs [7th Edn. 2021 (In Press), Eastern Book Company].

1(1980) 3 SCC 625.

2[1913] A.C. 417, p. 477 (HL).

3Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

4A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.

5Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

6Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

7Id, pp. 877-78, paras 1703-04.

81948 SCC OnLine US SC 59, para 30 : 92 L.Ed 1161 : 334 US 1 (1948).

91944 SCC OnLine US SC 18 : 88 L Ed 497 : 321 US 1 (1944), p. 16.

10Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, p. 34, para 122.

11Snowden v. Hughes, 1944 SCC OnLine US SC 18, para 30 : 88 L Ed 497 : 321 US 1 (1944).

12AIR 1955 SC 191.

13Snowden case, 1944 SCC OnLine US SC 18, para 30.

14AIR 1963 SC 1909.

15(1998) 4 SCC 409.

16Vinay Chandra Mishra, In re, (1995) 2 SCC 584.

17(2000) 1 SCC 278.

18Afzal v. State of Haryana, (1996) 7 SCC 397.

19(2010) 14 SCC 209, p. 224.

20ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

21Ram Deo Chauhan case, (2010) 14 SCC 209, p. 224, paras 50-52.

22(2014) 1 SCC 697.

23Anjan Kumar Banerjee v. State of W.B., WP (C) 49 of 2009, order dated 9-10-2012 (SC).

24(2016) 9 SCC 746.

25CBI v. Ashiq Hussain Faktoo, (2003) 3 SCC 166.

26(2016) 9 SCC 739.

27Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737.

28Rajasthan SEB v. Mohan Lal, AIR 1967 SC 1857.

29(1980) 2 SCC 437.

30R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No.2), [2000] 1 A.C. 119 : (1999) 2 WLR 272 (HL).

31[2000] 1 A.C. 61 : (1998) 3 WLR 1456 (HL).

321950 SCR 566 : AIR 1950 SC 163.

33AIR 1966 SC 81.

34(1987) 1 SCC 395.

35Id, pp. 407-08, para 7.

36K.K. Mathew, Democracy, Equality and Freedom, Eastern Book Company, (1978), p. 21, fn 46.

371940 SCC OnLine PC 10 : AIR 1940 PC 105.

38(1977) 3 SCC 592, p. 646, para 134.

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