INTRODUCTION

According to Dr. B.R. Ambedkar, Article 32 is the “Heart & Soul” of the Constitution. It allows anyone in India to file a question before the Supreme Court over any infringement on someone else’s fundamental rights. The ruling of the Supreme Court frequently upholds an individual’s fundamental rights. The court ruled that any regulations that infringed upon these rights were null and void. Even Article 13(2) prohibits the state from enacting laws or regulations that contravene Part III of the Constitution, even if they are made. Article 32 delineates the notion of constitutional remedies, which aim to safeguard and maintain the fundamental rights of every Indian citizen. This right is involved when any individual rights are infringed upon or misused. The Supreme Court can be approached immediately by means of several constitutional remedies. Additionally, a writ petition may be filed with the high court in accordance with Article 226.

FACTS OF THE CASE

The partners of M/s Industrial Chemical Corporation, Ghaziabad, Prem Chand Garg & Apr., the petitioners, have filed Article 32 Petition No. 348 of 1961, contesting the legality of the Excise Commissioner’s order that forbade the distillery from supplying the petitioners with power alcohol. On December 12, 1961, this appeal was accepted, and the State of Uttar Pradesh and the Excise Commissioner of Uttar Pradesh, both in Allahabad, were instructed to receive a rule. When the rule was first published, this Court ordered that the petitioners submit a cash security deposit of Rs. 2,500 within six weeks in accordance with the contested Rule. 

The practice of this Court, which dates back to 1959, states that this order is considered a prerequisite to the impleaded respondents’ receiving rule nisi. The petitioners moved this court on January 24, 1962, asking for a revision of the aforementioned ruling regarding security since they were having trouble raising this sum. Although the petitioners were granted an extension to deposit the specified sum by March 26, 1962, this application was denied. Passage of this directive occurred on March 15, 1962. Following their unsuccessful attempt to obtain the necessary funds, the petitioners filed the current petition on March 24, 1962. 

ISSUES RAISED

• Whether or whether the petitioner’s basic right to petition the Supreme Court under Article 32 was violated by r. 12? 
• Is it possible for any regulation enacted under Article 142 to infringe upon basic rights?
• Does the contested rule hinder the petitioner’s ability to exercise or defend their fundamental rights?

ARGUMENT OF BOTH SIDES

Petitioner’s Arguments

The learned petitioner’s attorney argued that the challenged rule, which required the provision of security fees, was unconstitutional because it restricted the petitioner’s ability to file a petition with the Indian Supreme Court pursuant to Article 32(1) of the Indian Constitution. 

Mr. Pathak, the petitioner’s attorney, said that, in contrast to the rights protected by Article 19, Article 32 of the fundamental right was a “absolutely absolute” right with no exceptions. 

He cited rulings in cases like Kameshwar Prasad v. State of Bihar, Chintaman Rao v. The State of Madhya Pradesh, and Ramesh Thappar v. The State of Madras to bolster his claims, stating that the basic right to file a writ petition under Article 32 (1) should not be infringed upon by means of any other rules. 

He went on to say that the court is unable to make any orders for security expenses, even in situations where O.25 r. 1 and 2 and O.41 r. 10 of the CPC rules may generally apply. And in order to make a determination, a test should ask whether the rule promotes or impedes the assertion or defense of the fundamental right. The court lacks the authority to issue such orders under Article 145 and lacks jurisdiction to issue such orders under Section 142 if it does, in fact, delay or obstruct the petitioner’s fundamental right by imposing financial penalties on the petitioner.

Respondent’s Arguments

According to the learned counsel of the respondent, the regulation that the petitioner had challenged in this court was not illegal since it did not violate the petitioner’s rights. because the aforementioned rule was optional. In cases where the court deems it essential, security charges will be imposed based on the specific facts of the case. 

The respondent’s attorney general, in attendance, argues that, in accordance with O.25 r.1& 2 and O.41 r.10 of the civil procedure code, security costs may, in some circumstances, be billed to the petitioner. The court in this instance, like all other courts, ought to handle both sides fairly and justly.  The petitioner is responsible for covering the security costs in the event that the court chooses to impose a financial obligation. 

In order to reestablish Article 32’s powers and ascertain the general applicability of Articles 142 and 145, he also recommended using the harmonious construction rule. 

The respondent’s attorney requested that the court compare Articles 142(1) and 194(3), arguing that while the latter article’s powers, privileges, and immunities were not subject to the provisions pertaining to fundamental rights, Article 142’s power provisions were. To support his position, the respondent cited the case Pandit M.SM Sharma vs. Shri Krishna Sina. 

JUDGMENT

The contested Rule only serves as a declaration of the jurisdiction, as specified by Article 142 of the Constitution. As such, there is no dispute regarding the State’s legislation and the right to petition this Court in accordance with Article 32(1) through the proper channels in order to enforce fundamental rights. Article 142 and Article 32(1) of the Constitution require that the provisions be interpreted in a coherent manner. This Court has the authority to make any orders that may be required in the interests of justice, including an order for payment. On the one hand, the litigant is guaranteed the right to petition this Court for the enforcement of a fundamental right through a proper proceeding. There is no reason to believe that the right to move this Court must take precedence over the exercise of this authority. While Article 142 is located in Part V, which deals with the Union Judiciary, Article 32(1) is part of Chapter III and makes the right to petition this Court a basic right in and of itself. However, since these are provisions of a fundamental charter, there is no special sanctity that gives the Chapter III provisions precedence over the other provisions. 

This Court had to determine whether the basic right to free speech under Article 194 superseded the authorities, privileges, and immunities of State Legislatures and their Members in Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha. In that case, the petitioner contended that the rights, privileges, and powers of the Members of the House of Commons in England that the State Legislatures could assert under Article 194 still needed to pass the reasonableness test outlined in Article 19(2), and that in the event of a discrepancy, the right had to give way to the fundamental right protected by Article 19(1). The court therefore held that it has appropriate jurisdiction to make all such orders as it deems fit.

CONCLUSION

The people were largely protected by the constitutional remedies when their fundamental rights were violated. In reality, Article 32 is a “Absolutely absolute” right, as the petitioner claims. However, as we can see from Justice Shah’s ruling, the contested regulation was upheld since, as per Article 142, the honorable court has the option to impose security charges only in cases where it deems them necessary. The Supreme Court in this judgment has clearly stated that this judgment is a precedent and will be binding on other courts. The Court has shown its powers under Art. 32 of the Constitution and has proved to be custodian of the Constitution.