Prem Chand Garg v. Excise Commissioner, U.P.

Supreme Court of India · 6 November 1962 · 5 judges · 1963 AIR 996, 1963 SCR Supl. (1) 885

Rule 12 of Order XXXV of the Supreme Court Rules, so far as it allowed the Court to demand security for the respondent's costs in Article 32 petitions, was invalid as it impaired the right to move the Court.

Facts

The petitioners, partners of a Ghaziabad firm, filed a petition under Article 32 challenging the Excise Commissioner's refusal to permit a distillery to supply them power alcohol. When the rule was issued on 12 December 1961, the Court directed them under Rule 12 of Order XXXV of the Supreme Court Rules to deposit Rs. 2,500 as security for the respondents' costs within six weeks; by the Court's practice since 1959 this was a condition for issuing rule nisi. Their request for modification was dismissed, though time was extended. Unable to raise the amount, they filed a fresh petition under Article 32 contending that the rule, so far as it related to security, violated their fundamental right under Article 32.

Questions before the Court

Whether Rule 12 of Order XXXV of the Supreme Court Rules, so far as it permits an order for security for the respondent's costs in an Article 32 petition, contravenes the fundamental right under Article 32.
Whether the Supreme Court's power under Article 142(1) to do complete justice, or its rule-making power under Article 145, can support such an order or rule.

What the Court held

The right to move the Supreme Court under Article 32 is itself a fundamental right. Rules that aid the orderly presentation and hearing of petitions are valid, but an order for security for the respondent's costs at the threshold retards or obstructs the assertion of the right and therefore contravenes Article 32.
The good or fair object of a rule or order is immaterial to its constitutionality. That petitioners may be able to pay, or that most petitions concern property rights, does not save the rule.
The wide power under Article 142(1) does not permit an order inconsistent with the fundamental rights in Part III, or even with substantive statutory law. There is no conflict calling for harmonious construction between Articles 142(1) and 32.
Rules under Article 145 are made in exercise of delegated legislative power and cannot affect fundamental rights. Rule 12, so far as it relates to security, was struck down and the order for security of Rs. 2,500 set aside.

Why it matters

The judgment treats the right to move the Supreme Court under Article 32 as a fundamental right that the Court's own rules cannot impair, and draws a line between procedural rules that aid a petition and conditions that obstruct it. It also holds that the Court's power under Article 142(1) to do complete justice cannot be used to make an order inconsistent with fundamental rights or with substantive statutory provisions. Shah, J. dissented.

In the Court's words

Copied from the official judgment; each passage links to its page.

“It is in the light of this position that the Constitution-makers thought it advisable to treat the citizens' right to move this Court for the enforcement of their fundamental rights as being a fundamental right by itself. The fundamental right to move this Court can, therefore be appropriately described as the comer-stone of the democratic edifice raised by the Constitution.”

Gajendragadkar, J.Page 3 of the judgment

“But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.”

Gajendragadkar, J.Page 9 of the judgment

“But if a rule or an order imposes a financial liability on the petitioner at the thresh-hold of his petition and that too for the benefit of the respondent, and non-compliance with the said rule or order brings to an end the career of the said petition, that must be held to constitute an infringement of the fundamental right guaranteed to the citizens to move this Court under Art. 32.”

Gajendragadkar, J.Page 11 of the judgment

“After all, rules framed under Art. 145 are in exercise of the delegated power of legislation, and the said power cannot be exercised so as to affect the fundamental rights. If the wide words used in Art. 142 cannot justify an order of security, in an Art. 32 petition, it follows that a rule made under Art. 145 cannot authorise the making of such an order.”

Gajendragadkar, J.Page 10 of the judgment

Provisions interpreted

Article 32, Constitution
Article 142(1), Constitution
Article 145(1)(f), Constitution
Order XXXV, Rule 12, Supreme Court Rules

Related judgments

Explained in Union Carbide Corporation v. Union of India (1991)
Followed in Supreme Court Bar Association v. Union of India (1998)

Case and bench

Parties: Prem Chand Garg v. Excise Commissioner, U. P., Allahabad
Case: Petition No. 52 of 1962 (Original Jurisdiction)
Decided: 6 November 1962
Bench: P.B. Gajendragadkar, Bhuvneshwar P. Sinha (CJ), K.N. Wanchoo, K.C. Das Gupta, J.C. Shah
Opinions: Majority 4:1. Judgment of Sinha, C.J., Gajendragadkar, Wanchoo and Das Gupta, JJ. delivered by Gajendragadkar, J.; Shah, J. dissented, holding the rule valid.

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