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Right to Constitutional Remedies

Article 32(1) The right to move the Supreme Court by appropriate


proceedings for the enforcement of the rights conferred by this
Part is guaranteed
Article 32(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the 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.

Right to Constitutional Remedies


Article 32(3) Without prejudice to the powers conferred on the
Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law
empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme
Court under clause ( 2 )
Article 32(4) The right guaranteed by this article shall not be
suspended except as otherwise provided for by this Constitution

Right to Constitutional Remedies

Article 32 enforces fundamental rights


Alternative remedy
Article 32 v. Article 226
Inter relationship between Article 32 and 226
Broad Canvas of Article 32. (Khatri v. State of Bihar, AIR 1981 SC
1068)
Procedure under Article 32 (Bandhua mukti morcha v. Union of
India, AIR 1984 SC 802)

Right to Constitutional Remedies


Article 32 cannot be restricted by legislation.
(Premchand v. Exercise Commissioner AIR 1963 SC 996)
Quasi- judicial bodies (Ujjam bai v. State of U.P, AIR 1962 SC
1621)
Question of Fact (Lakshmi shankar Pandey v. Union of India, AIR
1991 SC 1070)
Laches (R.S Deodhar v. State of Maharashtra, AIR 1974 SC 259)

Quasi- judicial bodies

Appellate Tribunal for Foreign Exchange


Banking Ombudsman Scheme
Board for Industrial and Financial Reconstruction
Company Law Board
Customs, Excise and Service Tax Appellate Tribunal
Godavari Water Disputes Tribunal
Illegal Migrants (Determination by Tribunal) Act, 1983
Krishna Water Disputes Tribunal
National Company Law Tribunal
National Consumer Disputes Redressal Commission
National Green Tribunal Act
Telecom Disputes Settlement and Appellate Tribunal

Right to Constitutional Remedies


Against whom writs can be issued
Who can apply?
Relief under Article 32

order

direction

writs

Compensati
on

Writ Jurisdiction: Article 226


226(1) Notwithstanding anything in Article 32 every High Court
shall have powers, throughout the territories in relation to which it
exercise jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibitions, quo warranto and certiorari, or
any of them, for the enforcement of any of the rights conferred by
Part III and for any other purpose

Writ Jurisdiction: Article 226


(2) The power conferred by clause ( 1 ) to issue directions, orders
or writs to any Government, authority or person may also be
exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat
of such Government or authority or the residence of such person
is not within those territories

Writ Jurisdiction: Article 226


(3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceedings relating to, a petition
under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
party in whose favour such order has been made or the counsel of such party, the High
Court shall dispose of the application within a period of two weeks from the date on
which it is received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on which the High Court is open;
and if the application is not so disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the aid next day, stand vacated

Writ Jurisdiction: Article 226


(4) The power conferred on a High Court by this article shall not
be in derogation of the power conferred on the Supreme court by
clause ( 2 ) of Article 32
Nature of Writ Jurisdiction
Karnataka State Industrial Investment development (corporation) ltd.
V. Cavalet India ltd, (2005) 4 SCC 456
L. Chandrakumar v. Union of India, (1997) 3 SCC 261
T.K Rangarajan v. Govt. of Tamilnadu, (2003) 6 SCC 581

Writ Jurisdiction: Article 226


Territorial jurisdiction to issue writs
Alchemist ltd. v. State Bank of Sikkim, AIR 2007 SC 1812
Comparison between Article 226 and Article 136
Workmen of Cochin Port Trust v. Board of Trustees
Inter relation between Article 226 and 227
MMTC lmt. V. Commissioner of Income Tax, AIR 2009 SC 1349
Alternative Legal remedy
Balco captive power plant Mazdoor Sangh v NTPC, AIR 2008 SC 336

Writ Jurisdiction: Article 226


Legal Standing
M/s. J.Mohapatra & Co. V. State of Orissa, AIR1984SC1572
Applicability of Civil Procedure Code
Necessary parties: Bhagwanti v. Subordinate Service Selection
Board(1995) 2 SCC 663
Res judicata: Ram Saran Tripathy v. Chancellor, Gorakpur
University, AIR 1990 All 96

Writ Jurisdiction: Article 226


Abuse of process
Dismissal of writ petitions in limine
Gunwant Kaur v Municipal committee, Bhatinda, AIR1970SC802
Declaratory relief
M.C Sharma v. The Punjab University, Chandigarh, AIR1997P&H87
Moulding of relief
Shivshankar Dal Mills v. State of Haryana, AIR 1980SC1037
Interlocutory orders
Bharat kumar v. State of Kerela, AIR1997Ker291
AIADMK v. L.K Tripathi, AIR 2009SC1324

The Writs
Habeas Corpus ( you have the body)
Inder Singh v State of Punjab
Quo Warranto (By what authority?)
Kashinath G. Jalmi v. The Speaker, AIR 1993 SC 1873
Mandamus ( We Command)
Mansukhlal Vitaldas Chauhan v. State of Gujarat, AIR 1997 SC 3400

The Writs
Certiorari (to be certified) and Prohibition
Act without or excess of jurisdiction
Fails to exercise jurisdiction
Error of law
Fact finding by inferior tribunal is not based on law
Violation of principles of natural justice
Law is unconstitutional
It is in contravention of the Fundamental Rights

Damages under Contract


The term Damages has been defined by McGregor as the pecuniary compensation, obtainable by success
in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form
of a lumpsum which is awarded unconditionally. This definition was adopted by Lord Hailsham, L.C. in
Cassel & Co. Ltd. v. Broome, (1972) 1 All ER 801 (HL) at 823e.
The definition in Halsburys Laws of England (4th Edn.) Vol. 12, para 1102, is similar to the definition set
out above.
The object of an award to damages is to give the plaintiff compensation for damage, loss or injury he has
suffered. The elements of damage recognised by law are divisible into two main groups: pecuniary and
non-pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary
loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or
replacement for other money, but as a substitute, what McGregor says, is generally more important than
money: it is the best that a Court can do.

Damages under Contract


In Mediana, Re(1900 AC 113:82 LT 95) Lord Halsbury, L.C. observed
as under:
"How is anybody to measure pain and suffering in moneys counted?
Nobody can suggest that you can by arithmetical calculation establish
what is the exact sum of money which would represent such a thing as
the pain and suffering which a person has undergone by reason of an
accident. But nevertheless the law recognises that as a topic upon
which damages may be given."
This principle was applied in Fletcher v. Autocar and Transporters,
(1968) 2 QB 322 = (1968) 1 All ER 726 (CA) and Parry v. Cleaver,
1970 AC 1 = (1969) 1 All ER 555 (HL).

Plea bargaining in India


Nani Palkhivala: the greatest drawback of the administration of justice in
India today is because of delay of casesThe law may or may not be an ass,
but in India, it is certainly a snail and our cases proceed at a pace which would
be regarded as unduly slow in the community of snails. Justice has to be blind
but I see no reason why it should be lame. Here it just hobbles along, barely
able to work

Fox v. Schedit and in State exrel Clark v. Adams, 363 US 807


United States v. Risfeld, 340 US 914
Lott v. United States, 367 US 421
Brady v. United States, 397 U.S. 742 (1970)

Plea bargaining in India


Murlidhar Meghraj Loya v. State of
Maharashtra, (AIR 1976 SC 1929 )
Kachhia Patel ShantilalKoderlal v.
State of Gujarat and Anr(1980
CriLJ553 )
Kripal Singh v. State of Haryana
Kasambhai v. State of Gujarat(AIR
1980 SC 854 )
Uttar Pradesh v. Chandrika(2000
Cr.L.J 384 (386)

State of Gujarat v. Natwar


Harchandji Thakor ((2005) Cr.L.J.
2957 )

Plea bargaining in India


Dowry Prohibition Act, 1961, the Commission of Sati Prevention Act, 1987,
the Indecent Representation of Women (Prohibition) Act, 1986, the Immoral
Traffic (Prevention) Act, 1956, Protection of Women from Domestic Violence
Act, 2005, Provisions of Fruit Products Order, 1955 (issued under the Essential
Commodities Act, 1955), the Infant Milk Substitutes, feeding Bottles and
Infants Foods ( Regulation of Production, supply and distribution) Act, 1992,
Provisions of Meat Food Products Order, 1973 (Issued under the Essential
Commodities Act, 1955), the SC and ST (Prevention of Atrocities) Act, 1989.,
Offences mentioned in the Protection of Civil Rights Act, 1955, Offences listed
in Sections 23 to 28 of the Juvenile Justice (Care and Protection of Children)
Act, 2000, the Army Act, 1950, the Air Force Act, 1950, the Navy Act, 1957,
the Explosives Act, 1884 and Cinematograph Act, 1952.

Plea bargaining in India


call plea bargaining, plea negotiation, trading out and
compromise in criminal cases and the trial magistrate drowned
by a docket burden nods assent to the sub rosa ante- room
settlement. The businessman culprit, confronted by a sure
prospect of the agony and ignominy of tenancy of a prison cell,
trades out of the situation, the bargain being a plea of guilt,
coupled with a promise of no jail. These advance arrangements
please everyone except the distant victim, the silent society