PREM CHAND GARG Vs. EXCISE COMMISSIONER U P

JUDGEMENT

(1.) This is a petition under Art. 32 and it raises an interesting and important question about the validity of one of the Rules made by this Court in exercise of its powers under Art. 145 of the Constitution. The impugned Rule is Rule 12 in Order XXXV. It provides that the Court may, in the proceedings to which the said Order applies, impose such terms as to costs and as to the giving of security as it thinks fit. One of the proceedings covered by Order XXXV is a petition under Art. 32. The petitioners Prem Chand Garg and Anr., partners of M/s. Industrial Chemical Corporation, Ghaziabad, have filed under Art. 32 Petition No. 348 of 1961 impeaching the validity of the order passed by the Excise Commissioner refusing permission to the Distillery to supply power alcohol to the petitioners. This petition was admitted on the 12th December, 1961 and a Rule was ordered to be issued to the respondents, the Excise Commissioner of UP., Allahabad, and the State of U.P. At the time when the rule was thus issued, this Court directed under the impugned Rule that the petitioners should deposit a security of Rs. 2,500/- in cash within six weeks. According to the practice of this Court prevailing since 1959, this order is treated as a condition precedent for issuing rule nisi to the impleaded respondents. The petitioners found it difficult to raise this amount and so, on the 24th January, 1962, they moved this Court for a modification of the said order as to security. This application was dismissed, but the petitioners were given further time to deposit the said amount by March 26, 1962. This order was passed on March 15, 1962. The petitioners then tried to collect the requisite fund, but failed in their efforts, and that has led to the present petition filed on March 24, 1962. By this petition, the petitioners contend that the impugned Rule, in so far as it relates to the giving of security, is ultra vires, because it contravenes the fundamental right guaranteed to the petitioners under Art. 32 of the Constitution. That is how the question about the validity of the said Rule falls to be determined on the present application.

(2.) Article 32 (I) provides that the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed, and sub Art. (4) lays down that this right shall not be suspended except as otherwise provided for by this Constitution. There is no doubt that the right to move this Court conferred on the citizens of this country by Art. 32 is itself a guaranteed right and it holds the same place of pride in the Constitution as do the other provisions in respect of the citizens fundamental rights. The fundamental rights guaranteed by Part III which have been made justiciable, form the most outstanding and distinguishing feature of the Indian constitution. It is true that the said rights are not absolute and they have to be adjusted in relation to the interests of the general public. But as the scheme of Art. 19 illustrates, the difficult task of determining the propriety or the validity of adjustments made either legislatively or by executive action between the fundamental rights and the demands of socio-economic welfare has been ultimately left in charge of the High Courts and the Supreme Court by the Constitution. 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 corner- stone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of Patanjali Sastri J., regard itself "as the protector and guarantor of fundamental rights." and should declare that "it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights." (Vide Romesh Thappar v. State of Madras. 1950 SCR 594 at p. 597: AIR 1950 SC 124 at p. 126). In discharging the duties assigned to it, this Court has to play the role "of a sentinel on the qui vive" (Vide State of Madras v. V. G. Row, 1952 SCR 597 at p. 605: (AIR 1952 Sc 196 at p. 199)), and it must always regard it as its solemn duty to protect the said fundamental rights zealously and vigilantly (Vide Daryao v. State of U. P., 1962-1 SCR 574 at p. 582: (AIR 1961 SC 1457 at p.1461)). Mr. Pathak for the petitioners contends that the right guaranteed under Art. 32 (1) is not subject to any exceptions as are the rights guaranteed by Art. 19. The right to move this Court is an absolute right and the content of this right cannot be circumscribed or impaired on any ground, such as the interests of the general public. It is in this connection that Mr. Pathak preferred to describe the guaranteed right under Art. 32 as "absolutely absolute." The key role assigned to the right guaranteed by Art. 32 and the width of its content are writ large on the face of its provisions, and so, it is, in our opinion unnecessary and even inappropriate to employ hyperboles or use superlatives to emphasise its significance or importance.

(3.) Mr. Pathak however, conceded that the right to move this court can be validly regulated by rules of procedure and regulations made with a view to aid the assertion and vindication of the right and to provide for a fair trial of the points raised by the petitioners. For instance, he agrees that a rule can be made that the petition proposed to be filed under Art. 32 should be legibly written, or typed, before it is filed; or that the relevant paper book should be prepared in the prescribed manner in order to facilitate the reference in Court; or that a notice should be issued to the respondent, or for the making of the affidavit in the prescribed manner. These rules, he argues, can be legitimately made because they serve to aid and facilitate a fair disposal of the petition made by the petitioner on the merits. If however, a rule is made which retards or obstructs the petitioner's attempt to assert his fundamental right under Art. 32, that rule must be struck down as being violative of Art. 32. His argument is that the impugned rule imposes upon the petitioners an obligation to deposit a certain amount in Court as security for the respondents costs, and far from adding or assisting the petitioners assertion of fundamental right, it has the effect of retarding or obstructing the same. If, as in this case the petitioners are unable to deposit the security, their petition is liable to be dismissed for non-prosecution. That clearly illustrates the hardship that the rule will work, and thus brings out how it contravenes Art. 32.