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SCPETITION

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Volume-I (INDEX) | List of Dates | SYNOPSIS | PETIOTIONER/RESPONDENTS | Main Petition Para 1-15 | Main Petition Para 16-40 | Main Petition Para 41-60 | Main Petition Para 61-80 | Main Petition Para 81-100 | Main Petition Para 101-120 | MainPetition Para 121-155 | QUESTIONS OF LAW | Grounds | Prayers | Volume-II (INDEX OF ANNEXURES)
QUESTIONS OF LAW

 

 

1.                                 That Supreme Court of India have two independent, separate and untrammeled responsibilities; one under Part III of the Constitution and another under Chapter IV of the Part V of the Constitution of India and for the purpose of the powers and jurisdictions and interpretation of the constitution, both such responsibility cannot and should not be mixed up. But, after mixing up such responsibilities, application of principle of the finality of the final order of the Supreme Court without providing measures to prevent miscarriage of the justice, abuse of the judicial proceedings and orders without jurisdiction or under bias in respect of the petitions under Article 32 of Constitution has opened the scope to cause miscarriage of the justice, abuse of the judicial proceedings and orders without jurisdiction or under bias whenever any one files Petition in person for enforcement of his fundamental rights as were experienced by the Petitioner. 

 

2.         That under the impact of the holding of the principle of finality of final order of the Supreme Court, (Nine Judge Bench (AIR 1967 SC 1:(1966) 3, SCR 744) Judgment) mindset of the Supreme Court gradually but slowly started to shift from its responsibility as a Guardian, Guarantor and Watchdog-Protector of the rights guaranteed under Article 32 of the Constitution as were held by Six Judge Bench (AIR:1950,Sc: 124, Kania CJ, Fazl Ali, Patanjali Sastri, Mahajan, B.K.Mokherjea, And Das JJ.), that: The Supreme Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights towards complete negative directions that the it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III, complete inconsistent with the object, scope, meaning and ambit  of the Article 32 of the Constitution, which empowered to ensure enforcement of the fundamental rights and any interpretation in nagetive direction should be corrected.

 

3.         That application of the principle of finality of final order of the Supreme Court, (Nine Judge Bench (AIR 1967 SC 1:(1966) 3, SCR 744) Judgment) in respect of the matters of the Petitioner covered under Part III of the Constitution has translated the result not less than oppressive to judicial conscience, thus perpetuated irremediable injustice for the Petitioner thus causes virtual protections for the criminal acts by criminal means of the Respondent Nos. 25 to 32, beyond the scope, meaning, ambit of Article 32 of the Constitution of India and powers and responsibilities of the Supreme Court.

 

4.         That the observations interalia made in last 3 lines of Para 7 of the Judgment dated 10th April 2002, 388-428 SCC (2002) 4 SCC that It may be further noted that the superior courts of justice do not fall within the ambit of State or other authorities under Article 12 of the Constitution is not consistent with the scope, meaning, ambit, object and scheme of Article 12 of the Constitution itself. From the words The State includes means the ambit of Article 12 of the Constitution is just not limited to the Government and Parliament of India and the Government and the Legislature of each States and all local or other authorities within the territory of India or under the control of the Government of India rather much much wider, thus from its ambit Supreme Court should not have been excluded, by such interpretation which causes hands off from responsibility laid upon the Supreme Court. From the aforesaid observation such a situation arising as if a Medical Doctor, whose profession is to give a new lease of life to a dying person, claims that death by his hand in no case can be treated as a murder.

 

5.         That interpretation that it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III is not consistent with the guarantees provided under clause (1), (2) and (4) of Article 32 of the Constitution. The object of Article 32 of the Constitution was to provide ultimate right of remedy in guaranteed manner to each citizen against infringement of fundamental rights. In the entire Constitution, Supreme Court is not empowered to cause miscarriage of justice, abuse of judicial process or orders without jurisdiction or under bias, whereas the interpretation suggest that the Supreme Court is empowered to cause miscarriage of justice, abuse of judicial proceedings or orders without jurisdictions or under bias.

 

6.         That there is no doubt that separate, independent and untrammeled Principle of finality of final orders of Supreme Court is warranted in respect of Part-III of the Constitution, but with simultaneous measures to prevent miscarriage of justice, abuse of judicial process or orders without jurisdictions or bias is equally warranted, to fulfill the objects of the Guarantees provided under Clause (1) and (4) of Article 32 of the Constitution.

 

7.         That the clause (2) of Article 32 of the Constitution directs that The Supreme Court shall have powers to issue directions or orders or writ, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part, which having contained conditions under clause (4) of the Article 32 of the Constitution that The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution with further conditions under clause (1) of Article 32 of the Constitution provides that The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part (Part III) is guaranteed. In such a situation Supreme Court is having complete competency just to ensure enforcement of fundamental rights by issuing the writ in the nature of including certiorari by the larger Bench upon the smaller Bench, and any adverse or negative interpretation cannot having consistency with clause (1) (2) (4) of Article 32 of the Constitution.

 

8.         That the concept of independent, separate, untrammeled from each other responsibilities of the Supreme Courts under Part III and Chapter IV of the Part V of the Constitution is also apparent from Article 131 of the Constitution which defined Original Jurisdiction of the Supreme Court in respect of the matters and provisions provided under Chapter IV of the Part V of the Constitution, while Original Jurisdiction of the Supreme Court under Article 13 and 32 Part III of the Constitution are not referred or included in this Article 131. In fact from the entire Chapter IV of the Part V of the Constitution nowhere the Jurisdiction and Powers of the Supreme Court with regards to Part III of the Constitution is referred or can be inferred.  

 

9.         That the Jurisdiction and powers including the powers of interpretation in respect of Part III of the Constitution of India is clearly referred, defined, derived and / or should be inferred exclusively from Clause (1), (2) and (4) of Article 32 of the Constitution of India itself and cannot be imported from outside. Such clauses imposing strict restriction upon all authority including Supreme Court itself by providing that the right to move the Supreme Court by appropriate proceeding for enforcement of the rights conferred by this Part is guaranteed and that the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution, therefore, no other interpretation can be made or inferred which takes away or abridges the rights conferred under Part III of the Constitution of India or contrary to responsibility laid upon the Supreme Court for enforcement of the fundamental rights.

 

10.       That object of Article 32 of the Constitution is to ensure ultimate right of remedy against infringement of fundamental rights. This is very important that in the entire Constitution, Supreme Court is not empowered nor have been impliedly empowered to cause miscarriage of justice, abuse of judicial process or orders without jurisdiction or under bias, therefore the interpretation that it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III which suggesting otherwise or ancient not consistent with the most important core principles of the jurisprudence that that Justice must be above all and another core principle of the rule of law which says, Be you ever so high, the law is above you. Resultantly such a situation is developed as were observed in Para 23, 42, and 68 & 69 of the Judgment Dated 10th April 2002 388-426 (2002) 4 SCC, from which sufferings of the Petitioner correctly and truly reflected or can be corroborated under the impacts of the Order passed in his Writ Petition.

 

11.       That the efficacy of Supreme Court under Article 141 of the Constitution just defined that the law declared by the Supreme Court shall be binding on all Courts within territory of India, which having much lesser efficacy from the efficacy of the Supreme Court defined under Article 12 of the Constitution.

 

12.       That Article 13 and Article 32 of the Constitution of India are important pillars of the Basic Structure of the Constitution of India and cannot be changed or altered to suit political powers or open any discriminatory passage for any one. But, being the Guardian, Guarantor and Watchdog-Protector of the rights guaranteed under Article 32 of the Constitution of India, Supreme Court by Judgment Dated 10th April 2002 388-426 (2002) 4 SCC under the observation made at Para 23 admitted that under the human error or otherwise miscarriage of justice, abuse of judicial process or orders without jurisdiction or under bias were possible. Such situation is developed due to application of the principle of the finality of final order of the Supreme Court without evolving appropriate measures to prevent miscarriage of justice, abuse of judicial process or orders without jurisdiction or under any bias.

 

13.       That by the said Judgment dated 10 the April 2002 388-428 SCC (2002) 4 SCC it was held that under Article 32, 132, 133, 134, 136, 226 and 12 of the Constitution of India Supreme Court cannot issue a Writ to a High Court or one Bench of Supreme Court cannot issue a writ to another Bench of the Supreme Court even if the latter is a smaller oneMore so because neither a Judicial order passed by a superior court can be said to be violative of fundamental rights nor are the superior courts State within the meaning of Art 12, is even contrary to the proviions provided under Article 141 of the Constitution. Infact such interpretation is based on dependence of the Indian Judiciary upon the English Law, as it appears from the Paragraph 6 of the Said Judgment Per Syed Shah Mohammed Quadri J. (for C.J. and himself, Variava and Patil JJ.) Dated 10th April 2002 388-426 (2002) 4 SCC. English law is not suitable for Indian requirements, and conditions, nor consistent with the object, scope, meaning and ambit of Article 32 of the Constitution, neither as per reports now binding under Indian Independence treaty. While observations made under Para 6 of the said Judgment dated 10th April 2002 is giving impressions that efficacy of the Supreme Court of India is not independent and still tagged with the English law. Otherwise, under Part III of the Constitution Supreme Court is Superior court even over the Supreme Court under Chapter IV of the Part V of the Constitution, and competent to issue Writ of Certiorari, even upon the smaller Bench of the Supreme Court. Infact under the aforesaid observations provisions under Article 132, 133, 134, 136, 226 of the Constitution has been mixed with Article 12 and 32 of the Constitution to infer powers or jurisdictions with regards to provisions under Part III of the Constitution, whereas Article 132, 133, 134, 136, 226 of the Constitution have no relevance or concerned with the Jurisdictions or Powers provided under Part III of the Constitution. The concept of two separate, independent and untrammeled from each other responsibilities of Supreme Courts clearly apparent from Article 139 Chapter IV of the part V of the Constitution, which provides separate Jurisdiction and Powers of the Writs from the Writs under Article 32 by the provisions: Conferment on the Supreme Court of powers to issue certain writs, that Parliament may by law confer on Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article 32 with clear object to define that the responsibility of the Supreme Court under Chapter IV of the Part V of the Constitution is completely different and separate from the responsibilities under Part III of the Constitution. Therefore, under Clause (2) of Article 32 of the Constitution The Supreme Court shall have powers to issue directions or orders or writ, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part which means for the enforcement of any of the rights conferred by part III, if necessary a Larger Bench can issue a Writ upon a Smaller Bench. Even today the application of the principle of finality of final order of the Supreme Court is a Nine Judge Bench certiorari Writ upon the Smaller Benches, otherwise it should not have been applicable upon any other Bench of the Supreme Court.

 

14.       That this is very important that under Article 13 Part III of the Constitution of India Supreme Court have been constituted as Guardian, Guarantor and watchdog to protect the fundamental rights guaranteed under Part III of the Constitution as such empowered to protect such rights even from laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India immediately before the commencement of the Constitution inconsistent with Part III or any law includes any Ordinance, order, bye-laws, rule, regulation, notification, etc., which takes away or abridges the rights conferred by Part III shall not be made by the State otherwise in so far as they are inconsistent with or contravention of Part III, empowered to declare as void, while under Chapter IV of the Part V of the Constitution no such or similar powers have been provided to the Supreme Court, from which it is clear that efficacy of the Supreme Court under Part III is much supreme efficacy than the efficacy of the Supreme Court under Chapter IV of the Part V of the Constitution which is limited to the respective provisions, in such a situation Supreme Court cannot pronounce any Judgment or pass any order or infer any other or inferior interpretation not consistent with the provisions provided under Article 13 and 32 of the Constitution, on the basis of any provision provided under Chapter IV of the Part V of the Constitution. But, orders without the examining the matters on merits, passed in the Writ Petition filed and moved by the Petitioner for enforcement of his fundamental rights, virtually takes away or abridges his such rights conferred by Part III of the Constitution, thus caused impacts not less than oppressive to judicial conscience, thus perpetuated irremediable injustice for the Petitioner similar to observations made in last two lines of Para 42 of Judgment 414 (2002) 4 SCC, and reverse impact of such orders translated into as virtual umbrella for the mafia activities prevailing against the Petitioner.

 

15.       That Article 145(1)( c) and 147 of the Constitution having no relevance with the jurisdiction and powers of the Supreme Court under Part III of the Constitution. These provisions cannot reduce the powers or Jurisdictions of the Supreme Court having under Part III of the Constitution of India. 

 

16.       That Article 145(1)( c) of the Constitution provides that Supreme Court may from time to time, with the approval of the President, makes rules for regulating generally the practices and procedures of the Court including rules as to the proceedings in the Court for enforcement of any of the rights conferred by Part III, means rules should be in affirmative manner for enforcement of the rights conferred by Part III, not to deprive directly or indirectly from such rights.

 

17.       That from the language of provision provided under Article 147 of the Constitution it is ample clear that the Supreme Court empowered to make interpretation with refrence In this Chapter and Chapter V of Part VI, references to any substantial question of law as to the interpretation of this Constitution shall be construed as including references to any substantial question of law as to the interpretation of the Government of India Act, 1935 or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947, or of any order made thereunder. From the words In this Chapter and, Chapter V of Part VI, it is ample clear that Part III of the Constitution is not included in the scope, meaning and ambit of the interpretation under Article 147 of the Constitution.

 

18.       That apart from the aforesaid language of Article 147 of the Constitution from the factual position this is further clear that The Fundamental Rights never exists in the Government of India Act, 1935 nor were subject matter of the orders passed by any Council whether the word Council denotes to British Privy Council or not, nor were subject matter of Indian Independence Act, 1947, which was enacted as per agreement between the Indian National Congress and British Government, based on the proposal of the Cabinet Mission from the British Government, nor it is inferred from any provision that Supreme Court is empowered to change meaning of any provision of the Part III of the Constitution. Therefore, Article 147 of the Constitution does not included the Powers of the Supreme Court to make interpretation of substantial question of Law in respect of the Provisions prvided Under part III of the Constitution. However, such Power is included in Article 32 of the Constitution itself, and cannot be inferred from anywhere else.  

 

19.       That inconsistency or contravention between Article 13 under Part III with Article 147 under Chapter IV of the Part V of the Constitution clearly apparent from the factual position that Article 13 of the Constitution have empowered the Supreme Court to declare All laws in force in the territory of India immediately before the commencement of this Constitution, (means inclusive of the Government of India Act, 1935 and Indian Independence Act, 1947) in so far as they are inconsistent with the provision with the provision of this Part, shall to the extent of such inconsistency, (can) be (declared) void, from which it is ample clear that Supreme Court have been empowered even to declare Government of India Act, 1935 or Indian Independence Act, 1947 if found to be inconsistent with the provision of Part III, to the extent of such inconsistency, as void. From this it is further clear that efficacy of the Article 13 of the Constitution is much superior than the Article 147 of the Constitution, and that the interpretation of Article 13 of the Constitution cannot and should not be construed as the interpretation of the Government of India Act, 1935, or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947. From the aforesaid situation concept of separate, independent and untrammeled two responsibilities of Supreme Courts is clearly apparent, thus the principle of the finality of the final orders of the Supreme Court arrived or inferred under Article 147 of the Constitution can not and should not be made applicable in respect of Part III of the Constitution.

 

20.       That by the observations made in Judgment Dated 10th April 2002 388-426 (2002) 4 SCC by the observation made at Para 23 Supreme Court virtually hold that their might be orders -which-, may suspend the fundamental rights as were suspended in the matters of the Petitioner, but under the impact of the principle of finality of the order of the Supreme Court (Nine Judge Bench (AIR 1967 SC 1:(1966) 3, SCR 744) Judgment), said Judgment could not reach up to desire level to provide curative passage just in conformity with clause (4) of the Constitution of India, which does not and cannot permit any conditionality for restoration of the suspended fundamental rights, beyond the scope, meaning, ambit, object and scheme of Article 32 of the Constitution of India. 

 

21.       That Article 145(1) (c ) does not empowered the Supreme Court to assign its Judicial powers to Registrar or any other person or authority to decide the fate of a Writ petition. Such assignment is not in affirmative in accordance with and purpose of Article 145(1) (c ) of the Constitution thus application of Rule 5 Under Order XVIII of the Supreme Court Rules 1966, in respect of the provisions under Part III of the Constitution is beyond the scope, meaning and ambit of Article 32 and 145(1) (c ) of the Constitution and such is void.

 

22.       For that the Rule 5 Order XVIII of the Supreme Court Rules 1966 (substituted by G.S.R. 407 (w.e.f. 20-12-1997) (Petitions generally) cannot be made applicable overruling the Rule 7 and 8 of the PART IV ORDER XXXV (APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS) in respect of the Application filed for Mandamus, prohibition, certiorari, Quo-warranto and other Directions or Orders as it is clear from the Rule 7 and 8 of the PART IV ORDER XXXV that provided that the Petition shall be posted for preliminary hearing and upon hearing, if Court satisfied that no fundamental rights guaranteed by the Constitution has been infringed or in other words no satisfactory cause of action is appears from the Petition, it shall be dismissed. Therefore, duplication of the powers is unconstitutional and as such Rule 5 of ORDER XVIII is liable to be declared null and void, as far as its applicability is concerned to Application under Article 32 of the Constitution is concerned. 

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