MODEL ANSWERS

Question 1

Principles for exercise of writ jurisdiction

The rule that when there is an adequate alternative remedy, the Supreme Court of India
under Article 32 and the High Court under Article 226 will not interfere. It is only a rule of
discretion and not a rule of law. The fact that the aggrieved party has another and adequate remedy
maybe taken into consideration by the Supreme Court of India and the High Courts, in arriving at a
conclusion as to whether it should, in exercise of its discretion issue the writs. There is no prescribed
period of limitation nor does the provisions of the Limitation Act apply to writ petitions under
Articles 32 and 226 but inordinate delay in invoking the jurisdictions of the Courts may be a good
ground for declining to grant relief. If the applicant for a writ is guilty of the suppression of material
facts in his application and of an attempt to mislead the courts thereby, his/her petition will be
rejected and the Courts should refuse to consider it on merits. If the writ applied for is not likely to
serve any useful purpose the Courts may in its discretion reject the application on this ground. The
proceedings under the writ jurisdiction are of a summary nature and are not suitable for agitation of
disputed questions of fact. Accordingly it has been held that where the rights claimed by the
applicant cannot be conveniently determined in such summary proceedings the Courts in the
exercise of its discretion shall refuse to interfere by a writ. A writ will not be issued if the effect of
doing so will be to perpetuate illegal orders. Courts may also decline to entertain a writ petition if it
is found to be making a claim on grounds which are frivolous, reckless, vexatious, without substance
or prima facie unjust. The general principles of res judicata apply to writ petitions.

Enforceability of fundamental rights

Unlike the other legal rights which are the creation of the State, fundamental rights are
claimed against the State. Therefore, whether a Constitution says it or not, it is generally assumed
that they are available against the State i.e. against the actions of the State and its officials. The
State Election Commission will come under the definition of State of Article 12 of the Constitution
of India.

Violation of fundamental rights

Article 14 guarantees to every person the right to equality before the law and the equal
protection of laws. As no two humans are equal in all respects, the same treatment to them in every
respect would result in unequal treatment. The equal protection of the laws guaranteed in Article 14
of the Constitution does not mean that all the laws must be general in character and universal in
application and that the State is no longer to have the power of distinguishing and classifying
persons or things for the purpose of legislation. A legislative classification must be reasonable. In
Ajay Hasia vs Khalid Mujib Justice Bhagwati stamped the new approach with a unanimous opinion
of a Constitution Bench of the Court that it must now be taken to be well established that what
Article 14 strikes at is arbitrariness because an action that is arbitrary must necessarily involve
negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase
of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for
determining whether the legislative or executive action in question is arbitrary and therefore
constituting denial of equality. If the classification is unreasonable and does not satisfy the two
conditions (i) intelligible differentia and (ii) rational relation between the differentia and the object
sought, the impugned legislation or executive action would plainly be arbitrary and the guarantee of
equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State
action whether it be of the legislature or of the executive or of an authority under Article 12, Article
14 immediately springs into action and strikes down such State action.
Impugned Legislation
 Legislative classification based on educational qualification is discriminatory and they
abrogate constitutional right to contest elections. In light of low literacy level, such laws are
specially slanted against rural poor and gendered impact which will act to exclude women on a much
larger scale than men. It will also exclude marginalized groups from political democratic process.
The constituency that has not received a basic formal education is most likely to be overwhelmingly
poor (economic reasons), female (social and economic reasons). In an analogous case, in 2003, Javed
vs State of Haryana the Supreme Court upheld a law that restricted a right to hold an elected
panchayat position to persons with two or fewer children. One of the objects sought to be achieved
by the law is popularising the family welfare/family planning programme. The disqualification
enacted by the provision seeks to achieve the objective by creating a disincentive. The classification
does not suffer from any arbitrariness since there was a rational nexus between the object (family
planning) and the classification (number of children) the Act survived Article 14 scrutiny which
permits reasonable classification. Literacy bears no relevance to one’s ability to perform the duties of
electoral office as per Javed is irrelevant because law policy is something else altogether. The law
can prescribe the modalities of how elections are to be carried out and thus it can within reason
determine how the freedom to vote is to be exercised. However, if the law that regulates/restricts
not how the electoral process is to be carried out but who is entitled to participate in it then such a
law must be subjected to rigorous scrutiny by the courts because that goes to the very heart of the
constitutional freedom itself. Right/freedom to vote and the right/freedom to stand for office are
conceptually inseparable as they form equally integral parts of the democratic process.
Hence a writ of mandamus would lie against the State Election Commission which is a
public body having a public duty towards the masses not to implement the impugned law.

Question 2

Whether BFI would qualify as state under Article 12 of the Constitution of India
Unlike the other legal rights which are the creation of the State, fundamental rights are
claimed against the State. Therefore, whether a Constitution says it or not, it is generally assumed
that they are available against the State i.e. against the actions of the State and its officials. In
Pradeep Kumar Biswas vs Indian Institute of Chemical Biology the focus of the instrumentality or
agency test shifted from the six fold test in Ajay Hasia vs Khalid Mujib to the deep and pervasive
control test. The Supreme Court held that CSIR is administratively, financially and functionally was
controlled by the government and thus it is state under Article 12 of the Constitution of India. It was
further held by the Court that mere government patronization is not enough to hold an authority as
State under Article 12. There must be deep and pervasive control over the financial, administrative
and functional activities of the authority. If all these are cumulatively established then only an
authority becomes an instrumentality or agency of the state. After Pradeep Kumar Biswas there is
no further scope for extension of the reach of fundamental rights via Article 12 of the Constitution,
the decision is a bottleneck for all further expansion of Article 12. In Zee Telefilms & Others vs
Union of India it was contended that taking into account the broad interpretation of Article 12 Board
of Control for Cricket in India must be held to be state. As per the majority judgment BCCI is an
autonomous body and there is little control of government over the functions of it, and such control
is purely regulatory which will not make it a state under Article 12 so as to indicate pervasive state
control. The Court followed the precedent in Pradeep Kumar Biswas that the Board is not
financially, functionally and administratively under the control of the government and so it cannot
be state under Article 12 and that mere regulatory control by the government will not suffice to fulfil
the requirements of Article 12. Since BFI has similar characteristics like the BCCI and mere
regulatory control by the government cannot bring it under the purview of State under Article 12 of
the Constitution. Hence the writ petition is not amenable to the writ jurisdiction of the Supreme
Court of India under Article 32 since BFI is not state under Article 12 of the Constitution of India.

Alternative suitable remedy.

 The Petitioners however can move the High Court under Article 226 of the Constitution of
India. Notwithstanding anything in Article 32, every High Court has the power throughout the
territories in relation to which it exercises jurisdiction to issue to any person or authority within
these territories any writ for any other purpose. It was alleged by the Petitioners that they were not
given the right to be represented and heard by the other party. The writ of Certiorari would lie to set
aside the decision of the Disciplinary Committee which is a wing of the BFI in violation of
principles of natural justice. The law recognizes principle of natural justice audi alteram partem
where the parties be given adequate notice and opportunity to be heard. In Ridge vs Baldwin Lord
Reid held that the judicial character of the duty can be inferred from the nature of the duty itself and
it not required to be superadded by any provision of the law granting the power. It is submitted that
the decision in the Ridge case is permeating slowly into the Indian Administrative Law. In A. K.
Kraipak vs Union of India the Supreme Court extended the application of the principles of natural
justice to administrative proceedings. Without going into the distinction between administrative
and quasi judicial functions the Supreme Court emphasized that the concept of the rule of law
would lose its validity if the authorities do not act in a fair and just manner which is the essence of
acting in a judicial manner. In Maneka Gandhi vs Union of India Justice Bhagwati who delivered
the leading opinion enunciated the principle that the duty to act judicially need not be superadded in
the statutory provision, but it may be spelt out from (i) the nature of the power conferred, (ii) the
manner of exercising it and (iii) its impact on the rights of the person affected and where it is found
to exist the rules of natural justice would be attracted.

Question 3
The Petitioners (convicts) moved the Supreme Court of India under Article 32 of the
Constitution of India alleging that POCSO violates their fundamental rights as the criminal
procedures for trial are not in compliance with the Criminal Procedure Code of 1973 and it therefore
attracts the prohibition in Article 13 (2). In the petition the convicts prayed that their conviction and
sentence be quashed by writ of certiorari as they cannot be prosecuted, convicted and sentenced
under a void law.

Writ maintainability under Article 32 of the Constitution of India

In State of West Bengal vs Anwar Ali Sarkar the Supreme Court of India held that Section 5
(1) of the West Bengal Special Courts Act 1950 contravened Article 14 and was void since it
conferred arbitrary power on the government to classify offences and cases at its pleasure and the
Act didn’t lay down any policy or guideline for the exercise of discretion to classify cases or
offences. The procedure laid down by the Act for the trial of special courts varied substantially from
the procedure laid down for the trial of offences generally by the criminal procedure court. The
Supreme Court opined that the Special Court had no jurisdiction to conduct a trial under a void law
and the conviction and sentence were quashed by writ of certiorari and directed the court for retrial
of the case. However, the facts of the case in hand is different from the above case wherein the
petitioners are not asking the court to establish that their fundamental rights are violated under the
Constitution but rather a declaration to the effect that they were prosecuted, convicted and
sentenced under a void law and it should be quashed by writ of certiorari. Hence the petition cannot
be maintained under Article 32 of the Constitution.
A petition would lie in the High Court instead under Article 227 of the Constitution of India
whereby the High Courts in India are empowered to supervise the judicial acts of the inferior courts
on grounds of want of jurisdiction or excess of jurisdiction, error of law or gross violation of
principles of natural justice. The Special Court had no jurisdiction to conduct the trial under a void
law for want of jurisdiction. The authority for the principle is Radhe Shyam vs Chhabi Nath in
which the Supreme Court of India held that Article 227 of the Constitution vests the High Courts
with the power of superintendence which is to be very sparingly exercised to keep tribunals and
courts within the bounds of their authority. Under Article 227 orders of both civil and criminal
courts can be examined only in very exceptional cases when manifest miscarriage of justice has been
occasioned. Such power however is not to be exercised to correct a mistake of law or fact. Such
mistakes can only be corrected by way of an appeal. The convicts were not challenging the judicial
decision of the Special Court but rather the judicial act of the court. Judicial acts of the courts are
amenable to the writ jurisdiction of the courts where else judicial decisions of the courts are not.
They can only be corrected by way of an appeal. There has been miscarriage of justice in this case as
they were convicted and sentenced under a void law. In Naresh Shridhar Mirajkar vs State of
Maharashtra, a nine judge bench opined that judicial decisions of competent courts are not amenable
to the writ jurisdiction of the courts. A Constitution bench of the Court in Rupa Ashok Hurra vs
Ashok Hurra denied the claim of questioning the validity of the a final order or judgment of the
Court under Article 32 of the Constitution. It however suggested that a curative petition could be
filed against any final order or judgment of the court if it is vitiated by the non observance of the
principles of natural justice or on account of abuse of the process of the court.

Question 4a

Doctrine of Eclipse and post constitutional law

The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not
invalid. The inconsistency (conflict) can be removed by constitutional amendment to the relevant
fundamental right so that eclipse vanishes and the entire law becomes valid. When a Court strikes a
part of law, it becomes unenforceable. Hence, an 'eclipse' is said to be cast on it. The law just
becomes invalid but continues to exist. The eclipse is removed when another (probably a higher
level court) makes the law valid again or an amendment is brought to it by way of legislation.
The Supreme Court of India, in P Ratinam case, has held Section 309 of the Indian Penal Code,
1860 unconstitutional. Hence, the section was under eclipse. However, a constitutional bench in
Gian Kaur case reversed this decision and held the section as constitutional whereby the eclipse was
removed and it because operable again.

Whether Doctrine of eclipse applies to post constitutional law

In State of Gujarat vs Shri Ambica Mills, The court again affirmed that corporation cannot
be considered as a citizen for the purpose of Article 19. Thus the first respondent is having all the
right to dispose of the property as he deems fit as that of the ordinary citizen. The court held that
even the pre-existing laws are applicable to the non-citizens though the laws are held void as it
violates the fundamental rights of the citizens of India. The pre-existing laws are operative with
respect to non-citizens and the doctrine of eclipse is applicable only in case of pre-existing laws but
not the post-constitutional laws. Any law will be void only to the extent of inconsistency but will
remain applicable to inchoate rights and liabilities. Moreover it only stays in dormant state in case
of citizens. Article 13(1) and 13(2) differentiates between the post and pre constitutional laws which
highlight the need for distinction between the citizens and non-citizens. With the advent of the
constitution, special rights were given to the citizens, which render them a protection against any
unconstitutional post-constitution laws. (the law cannot be held void in rem) There are many
fundamental rights and they inhere in diverse types of persons, minorities or denominations. Thus
the laws which are against one set of group may not be void for others.

Question 4b

Article 14 permits classification but prohibits class legislation.

The equal protection of laws guaranteed by Article 14 does not mean that all laws must be
general in character. It does not mean that the same laws should apply to all persons. Class
legislation is that which makes an improper discrimination by conferring particular privileges upon
a class of persons arbitrarily selected from a large number of persons all of whom stand in the same
relation to the privilege granted that between whom and the persons not so favored. No reasonable
distinction or substantial difference can be found justifying the inclusion of one and the exclusion of
other. The principles of law was enunciated in landmark judgment Ram Shri Krishna Dalmia vs
Justice Tendulkar:-
  That a law may be constitutional even though it relates to a single individual if, on account
of some special circumstances or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by himself;
 That there is always a presumption in favour of the constitutionality of an enactment and
the burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles;
 That it must be presumed that the legislature understands and correctly appreciates the need
of its own people, that its laws are directed to problems made manifest by experience and
that its discriminations are based on adequate grounds;
 That the legislature is free to recognize degrees of harm and may confine its restrictions to
those cases where the need is deemed to be the clearest;
 That in order to sustain the presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of common report, the history of the
times and may assume every state of facts which can be conceived existing at the time of
legislation; and
 That while good faith and knowledge of the existing conditions on the part of a legislature
are to be presumed, if there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the classification may reasonably
be regarded as based, the presumption of constitutionality cannot be carried to the extent of
always holding that there must be some undisclosed and unknown reasons for subjecting
certain individuals or corporations to hostile or discriminating legislation.
The above principles will have to be constantly borne in mind by the court when it is called upon to
adjudge the constitutionality of any particular law attacked as discriminatory and -violative of the
equal protection of the laws.

Question 4c
Habeas Corpus which is also known as The Great Writ or a great constitutional privilege is a
writ which refers to a legal procedure which prevents the government to hold a person unnecessarily
i.e. without any just cause and provides for the explanation given by the detainer to the court of law
regarding the grounds of the detention of the detained person. The writ thus became a means of
testing the legality of detention and in this form it may be regarded as the immediate ancestor of the
modern writ of habeas corpus. The celebrated writ of Habeas Corpus is described by May as “the
first security of civil liberty”. This writ holds great significance as it is the most vital right available
to a detenu to get protection of personal liberty and justice in the court of law by letting the judge to
know that on what ground has the prisoner been detained or arrested or confined and to let him free
if there is no proving of legal justification against such arrest, confinement or imprisonment. Julius
Stone described it as a picturesque writ with an extraordinary scope and flexibility of application.
The major object behind it being called the great writ is that it provides for a prompt and effective
remedy against any restraint which is illegal and unreasonable and its sole purpose lies in the
enforcement of personal freedom and right of liberty. Personal liberty being the very essence carrier
of our Constitution needs to be well taken care of and hence writ of habeas corpus has proven itself
as one of such steps towards establishing of civil or personal liberty protection. The great
constitutional importance of the writ of habeas corpus lies in the fact that it is available to the
meanest against the mightiest. The writ of habeas corpus ad subjiciendum or the habeas corpus cum
causa wherein a person is called on command and the grounds of his arrest are looked into
cautiously has been granted as matter of right and thus cannot be held as discretionary at the hands
of court.

Question 4d
The doctrine of severability has been elaborately considered by the Supreme Court in
R.M.D.C. vs. Union of India, AIR 1957 and the following rules regarding the question of severability
has been laid down:-
 The intention of the legislature is the determining factor in determining whether the valid
part of a statute is severable from the invalid parts.
  If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from the another, then the invalidity ofa portion must result in the invalidity of the Act in
its entirety. On the other hand, if they are so distinct and separate that after striking out
what is invalid what remains is itself a complete code independent of the rest, then it will be
upheld notwithstanding that the rest had become unenforceable.
 Even when the provisions which are valid, are distinct and separate from those which are
invalid if they form part of a single scheme which is intended to be operative as a whole,
then also the invalidity ofa part will result in the failure of the whole.
 Likewise when the valid and invalid parts of a Statute are independent and do not form part
of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to
be in substance different from what it was when it emerged out of legislature, then also it
will be rejected in its entirety.
 The severability of the valid and invalid provisions of a Statute does not depend on whether
provisions are enacted in same section or different section, it is not the form but the
substance of the matter that is material and that has to be ascertained on an examination of
the Act as a whole and of the setting of the relevant provisions therein.
 If after the inval id portion is expunged from the Statute what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be struck
down as void as otherwise it will amount to judicial legislation.
In determining the legislative intent on the question of severability, it will be legitimate to take into
account the history of legislation, its object, the title and preamble of it.