1962 (11) TMI 52 - SC - Central Excise

Whether the rule can be said to be valid and the practice prevailing irregular inasmuch as in some cases security may perhaps have been demanded from the petitioner without full examina- tion as to the special features of the case? Whether the rule cannot be sustained in so far as it vests the discretion in the highest Court of this country and can be used only in cases where for reasons like those contemplated by Order 25 r. 1 & 2 and 0.41 r. 10 an order of security is made? Held that - It is true that if the discretion is exercised by the Court in favour of impecunious petitioners and orders for security are not passed in their cases, no hardship will be caused to them. But it seems to us that what would be left to the discretion of the Court on this construction of the rule, is really a matter of the right of impecunious petitioners under Art. 32. That is why we think that the impugned rule in so far as it relates to the giving of security cannot be sustained. The petition is allowed and the order passed against the petitioners on December 12, 1961, calling upon them to furnish security of ₹ 2,500/- is set aside.

Issues Involved:
1. Validity of Rule 12 in Order XXXV of the Supreme Court Rules.
2. Whether the rule contravenes Article 32 of the Constitution.
3. Applicability of Article 145 and Article 142 in making such rules.
4. The impact of procedural rules on the enforcement of fundamental rights.

Issue-wise Detailed Analysis:

1. Validity of Rule 12 in Order XXXV of the Supreme Court Rules:
The petition challenged Rule 12 in Order XXXV, which allows the Court to impose terms such as costs and security. The petitioners argued that this rule is ultra vires as it contravenes their fundamental right under Article 32 of the Constitution.

2. Whether the Rule Contravenes Article 32 of the Constitution:
Article 32(1) guarantees the right to move the Supreme Court for enforcement of fundamental rights. The petitioners contended that Rule 12, by imposing a security deposit, obstructs their right to seek justice under Article 32. They argued that any rule that retards or obstructs the assertion of this right must be struck down. The Court agreed, stating that an order for security imposes a financial obligation that could effectively bar the petitioner from prosecuting their petition, thus contravening Article 32.

3. Applicability of Article 145 and Article 142 in Making Such Rules:
Article 145(1)(f) allows the Supreme Court to make rules regarding costs, but these rules cannot contravene fundamental rights. The Solicitor-General argued that Article 142(1) grants the Court wide powers to do complete justice, including making orders for security. However, the Court held that even under Article 142(1), an order cannot contravene fundamental rights guaranteed by the Constitution. The Court emphasized that rules framed under Article 145 are a form of delegated legislation and cannot impair fundamental rights.

4. The Impact of Procedural Rules on the Enforcement of Fundamental Rights:
The Court recognized that procedural rules are necessary for the orderly conduct of proceedings but distinguished between rules that aid the fair disposal of petitions and those that obstruct the assertion of fundamental rights. It was noted that while procedural rules like the preparation of paper books or issuing notices are essential, a rule imposing a financial burden at the threshold of a petition under Article 32 for the benefit of the respondent is unconstitutional. The Court held that such a rule would make the right to move the Court illusory for impecunious petitioners and thus must be struck down.

Separate Judgment by Shah, J.:
Shah, J. provided a separate opinion, emphasizing that the right to move the Court under Article 32 is not unfettered and can be regulated by procedural rules. He argued that the impugned rule does not directly restrict the right to move the Court but allows the Court to exercise its jurisdiction to impose terms like security for costs in appropriate cases. He contended that the rule is consistent with the Court's jurisdiction under Article 142 to do complete justice. However, he acknowledged that the practice of imposing security at the initial stage might need reconsideration but maintained that the rule itself is not void.

Conclusion:
The majority opinion held that Rule 12 in Order XXXV, in so far as it relates to the giving of security, is invalid as it contravenes Article 32. The order calling upon the petitioners to furnish security was set aside, and there was no order as to costs.

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