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Right To Constitutional Remedies | Overview
The Right to Constitutional Remedies becomes an indispensable part of our Fundamental Rights as it assures the actual dispensation of justice, on the curtailment of our basic rights. It gives an insight into the five types of writs, which may be granted by the Courts under Articles 32 and 226 of the Constitution of India. This jurisdiction may be exercised by the Supreme Court under Article 32 of the Constitution and by the High Court under Articles 226 and 227 of the Constitution.
The fundamental rights were incorporated in the constitution, not merely to provide security and equality to the citizens but also equality of justice and fair play. Abstract declaration of these paramount important rights is meaningless unless there is effective machinery for the enforcement of the rights. To fructify these rights into actual liberties, a detailed legal provision was incorporated in the constitution itself to safeguard these rights. Under Article 32, the enforceability of these rights was included as a fundamental right and an almost parallel provision was provided under Article 226 as a constitutional right.
According to Art. 13, Fundamental Rights are enforceable and any law inconsistent with a Fundamental Right is void. Art. 13 is the key provision as it makes Fundamental Rights justiciable. Supreme Court has figuratively characterised this role of the judiciary as that of a “sentinel on the qui vive”. Art. 32 confers power on the Supreme Court to enforce the Fundamental Rights. The High Courts also have a parallel power under Art. 226 to enforce the Fundamental Rights
Right To Constitutional Remedies
I. ARTICLE 32
Right of access to the Supreme Court under Art. 32 is a Fundamental Right itself. Article 32 provides a guaranteed, quick and summary remedy for enforcing the Fundamental Rights because a person can go straight to the Supreme Court without having to undergo the dilatory process of proceeding from the lower to the higher Court as he has to do in other ordinary litigation.
Speaking on Art 32, the Drafting Chairman of the Indian Constitution described this Article as the very soul and heart of the Constitution, because it provided effective remedies against violation of Fundamental Rights and without which the Constitution would be a nullity.
To understand the provision in their true spirit and context, it would be desirable to first see them in their literal context. Article 32 of the constitution is provided in the constitution in the following form:-
Article 32. Remedies for enforcement of rights conferred by this Part
- The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
- 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
- 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)
- The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
Art. 32(1) provides a very important safeguard for the protection of the Fundamental Rights of the citizens of India. It guarantees the right to move the Supreme Court, by appropriate proceedings, for the enforcement of the Fundamental Rights enumerated in the Constitution.
The Court has emphasized in Romesh Thappar that,
“This Court is thus constituted the protector and guarantor of the Fundamental Rights, and it cannot consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights.”
Art. 32(2) empowers the Supreme Court to issue appropriate orders or directions, or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of the petitioner’s Fundamental Rights. It confers power on the Court in its widest terms. “It is not confined to issuing the high prerogative writs”, but “it is much wider and includes within its matrix power to issue any directions, orders or writs which may be appropriate for enforcement of the Fundamental Right in question”.
Article 32(3) empowers Parliament by law to empower any other Court to exercise within the limits of its territorial jurisdiction all or any of the powers exercisable by the Supreme Court under Art. 32(2). This can however be done without prejudice to the Supreme Court’s powers under Arts. 32(1) and (2). While incorporating this provision in the constitution, it was there in the minds of the framers that keeping in view its role and effectiveness and keeping in view the vast size of the country, the Supreme Court alone may not be able to cater to the needs of the people for this purpose.
It could be in their mind that these powers might be needed more and more. Anticipating this situation, they specifically provided it in the constitution and empowered the parliament to empower any other court also to exercise these powers within the local limits of jurisdiction of such court.
According to Art. 32(4), the right guaranteed by Art. 32 “shall not be suspended except as otherwise provided for by the Constitution.”
Example: During an emergency, Art. 359 provides for the suspension of the right to move any Court for the enforcement of the Fundamental Rights by a presidential order.
Even under this provision, after 44th amendment to the constitution of India, fundamental rights as available under Article 21 and 22 cannot be suspended even in the state of emergency. The right provided under this Article can only be suspended by a specific constitutional provision alone and not by any statute.
II. ARTICLE 226
Article 226 as available in the constitution is reproduced below:
“Article 226. Power of High Courts to issue certain writs —
- Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs, including, quo warranto and certiorari, or any of them for the enforcement of any of the right conferred by Part III and for any other purpose.
- The power conferred by Cl. (1) to issue directions, orders or writs in any government, authority or person may be exercised by any High Court exercising jurisdiction in relation to the territories within the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding tha.t the seat of such Government or authority or the residence of such person is not within those territories.
- Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made or in any proceedings relating to petition under Cl. (1) without— (a). furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and 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 the 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 v/here the High Court is closed on the last day of the period, before the expiry of next day afterwards on which the High Court is open; and if the application is hot so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
- The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by Cl. (2) of Article 32.”
Cl. (1) of Article 226 is a non-obstante clause which reveals that the power of the High Court to issue writs orders and directions inappropriate cases are independent of such powers of the Supreme Court under Article 32 of the constitution. Article 226 has a much wider scope than Article 32 in general. The scope of these powers is not only restricted to the fundamental rights only but it extends to “any other purpose” also.
Cl. (2) of Article 226 puts a territorial restriction on its jurisdiction under this provision. The High Courts are restricted to exercise these powers within their territorial jurisdiction. Therefore, the powers of the High Courts are limited as far as the area of jurisdiction is concerned.
The High court can issue a writ,
- to a person or authority having its location or residence within the court’s territorial jurisdiction or
- if the cause of action either wholly or partly arises within the high court’s territorial jurisdiction.
It is the duty of the High Court before which the writ petition is filed to ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends on the facts of each case. When an order is challenged, cause of action arises (i) at the place where the order was made, as well as; (ii) at the place where its consequences fall on the person concerned.
The High Court can issue a writ even when the person resides, or the authority is located, outside its territorial jurisdiction if the cause of action wholly or partially arises within the Court’s territorial jurisdiction. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum.
Cl. (3) of Article 226 provides a safeguard against the adverse impact of ex-parte interim orders passed by the High Courts under Article 226. The constitution has provided a meticulously drafted provision which is primarily based on the principles of natural justice i.e. no one should be proceeded against unheard. No adverse order may be passed behind the back of the person who is adversely affected by such order. If such an order is passed the other party has to be heard within a period of two weeks as provided under this clause.
Clause (4) of Art. 226 clarifies that the powers to be exercised by the High Courts under this Article would not be in derogation of such powers of the Supreme Court under Article 32. Notwithstanding the parallel nature of the two provisions, the Supreme Court enjoys a superior status in this regard. After, going through the broad contours of the powers of the Supreme Court under Article 32 and that of the High Courts under Article 226 of the constitution, it is revealed that the nature of these powers is almost the same.
The powers of the Supreme Court under Article 32 of the constitution are limited only to the enforcement of fundamental rights, whereas the High Court can exercise such powers for any other purpose also apart from the enforcement of fundamental rights. Therefore the High Court encompasses a wider area of jurisdiction as far as the subject of the writ jurisdiction is concerned. On the other hand, the Supreme Court has a wider territorial jurisdiction than the High Courts.
In the matter of enforcement of Fundamental Rights, the High Courts under Art. 226, and the Supreme Court under Art. 32, enjoy concurrent jurisdiction.
A question has been raised whether a petitioner seeking to enforce his Fundamental Rights can go straight to the Supreme Court under Art. 32, or should he first go to a High Court under Art. 226. As early as 1950, in Romesh Thappar, the Supreme Court ruled that such a petitioner can come straight to the Supreme Court without going to the High Court first. The Court stated that,
“unlike Art. 226, Art. 32 confers a Fundamental Right on the individual and imposes an obligation on the Supreme Court which it must discharge when a person complains of infringement of a Fundamental Right. Art. 32 provides a guaranteed remedy for the enforcement of the Fundamental Rights and constitutes the Supreme Court as the “guarantor and protector of Fundamental Rights.”
Even otherwise, on merits, this view will make Art. 32 redundant for after having gone to the High Court first under Art. 226, the petitioner would then come to the Supreme Court by way of appeal and not under Art. 32, because of the principle of res judicata.
The principle of res judicata envisages that if a judgment has been pronounced by a Court of competent jurisdiction, it is binding between the parties unless it is reversed or modified in appeal, revision or other procedure prescribed by law. According to the Supreme Court, the jurisdiction of a High Court in dealing with a writ petition under Art. 226 is substantially the same as that of the Supreme Court under Art. 32. The scope of the writs under both the Articles being concurrent, res judicata applies. The High Court’s decision can be attacked in an appeal to the Supreme Court but not through a writ petition.
When a litigant approaches the Supreme Court, the matter is decided by the Court finally. But if he approaches the High Court, the petition is first decided by a single judge, an appeal then lies to the division bench, and, thereafter, an appeal may be taken to the Supreme Court. In fact, this may cause more delay and prove costlier to the petitioner than a writ petition directly under Art. 32.
Thus it has been held that writ petitions can be filed in the Supreme Court under Art. 32 without first going to the High Court under Art. 226.
III. Essentials for a writ
For a writ petition to be filed before the Supreme Court on Article 32 the following two conditions should be fulfilled.
- There should be an infringement of fundamental rights
- It should be independent of any alternative remedy
Violation of a Fundamental Right is sine qua non of the exercise of the right conferred by Art. 32. Art. 32 can be invoked only when there is an infringement of a Fundamental Right.
In Jahirul Islam v. Jharkhand Urja Vikas Nigam Limited the court held that,
“as the respondent-JUVNL has already constituted Consumer Grievance Redressal Forums at five different places for adjudication of electricity dispute, the present writ petition is not maintainable at this stage and directed to prefer a complaint before the Electricity Consumer Grievance Redressal Forum.”
Thus the person before filing a writ should have exhausted the alternative remedy available. However, this is no absolute bar on writ jurisdiction. This was expressed in Maharashtra Chess Association v. Union of India as follows,
“The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors.”
Article 32 is in itself a Fundamental Right and, therefore, the existence of an alternative remedy is no bar to the Supreme Court entertaining a petition under Article 32 for the enforcement of a Fundamental Right.
When once the Court is satisfied that the petitioner’s Fundamental Right has been infringed, it is not only its right but also its duty to afford relief to the petitioner, and he need not establish either that he has no other adequate remedy, or that he has exhausted all remedies provided by law, but has not obtained proper redress. When the petitioner establishes infringement of his Fundamental Right, the Court has no discretion but to issue an appropriate writ in his favour.
IV. Types of writs
The Constitution has given the power to the Supreme Court under Art.32 and High Courts under Art 226 to issue writs in order to the enforcement of the fundamental rights against any authority in the state, at the instance of an individual whose right guaranteed under this Article has been violated. There are basically 5 types of writs:
- Habeas corpus,
- Certiorari and
- Quo warranto
1. Habeas corpus
The literal meaning of the Latin words ‘Habeas Corpus’ is to ‘have the body’. This writ is basically meant for remedy against illegal confinement of a person. It is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for imprisonment.
The only precondition necessary is that the person should have been confined and such confinement should be illegal.
It is available to the weakest against the mightiest with the only exception of the prison of war and the enemy alien. A petition under Art. 32 would not lie where the detention was by a private person and not by or under the authority or orders of the state. A petition for habeas corpus would lie under Art. 226 not only when a person was detained by the State but also when he was detained by another private individual (though not under Art. 32, because of Art. 226 is available not only for the enforcement of fundamental rights but also for ‘other purposes’.
Writ of habeas corpus is a writ for determining the legality or illegality of detention and not for punishing a person for a past offence. The legality of the detention has to be seen on the date when the application is heard by the court. If at any time before the court directed the release of the detainee, a valid order of detention is produced, the court may refuse the release even if the earlier detention was illegal. The application of detention if once dismissed may be filed again on the basis of fresh evidence and the principle of res-judicata would not be applicable in such cases.
If the right to move the Supreme Court under Art. 32 was suspended under Art. 32(4) in accordance with the provisions of Art. 359, the Supreme Court cannot be moved under Art. 32. However, even if fundamental rights are suspended under Art. 359, the right to move the High Court under Art. 226 is not suspended and therefore the High Court could be moved in such a situation.
In a writ of Habeas Corpus, the court cannot invalidate the provisions of the Act under which detention is ordered. However, the court at all times are entitled to have an account of why the liberty of an individual was restrained, under the inherent powers of the higher judiciary.
2. Writ of Mandamus
Mandamus is a Latin word having the meaning “We command”. Halsbury’s Laws of England have the following to say about the Writ of Mandamus:
“The writ of mandamus is of a most extensive remedial nature and is in forming a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.”
The primary purpose of this writ is to make the Government, machinery work properly. An order of mandamus is a command directed to any person, corporation or an inferior tribunal, requiring them to do some particular thing which pertains to their/his office and which is in the nature of public duty. The public servants are responsible for the judiciary for the lawfulness of their public duties and their actions under it. If a public authority fails to do what is required under law or does beyond what was to be done, a writ of mandamus may be issued to make him do what was required under law. Ayyangar J. thus observed,
“The Constitution enshrines and guarantees the rule of law and Art. 226 is designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual.”
Mandamus may also be issued to a tribunal to compel it to exercise the jurisdiction vested in it, which it has refused to exercise. It issues in all cases where there is a specific legal right to have a function exercised and no specific legal remedy for enforcing that right and also in cases where there is no alternative remedy, which may be adequate, convenient and effectual. The granting of the order of Mandamus is, in general, in die discretion of the Court.
The essentials of a writ of mandamus can be stated as follows:
- The petitioner must have a legal right;
- The respondent or respondent should be having a legal duty;
- The petitioner has no other alternative remedy;
- There had been a demand a refusal;
- The writ petition is filed bonafide and in good faith.
Normally, a writ of mandamus is not issued to an authority for exercise of powers, which are discretionary in nature. But if such discretion is not utilised at all, or if used in an arbitrary manner or with malafides, a writ of mandamus can be issued to compel the authority to use the discretion properly. It is because of the reason that surrender of discretion, by adopting a policy pursued by a superior authority, is not less objectionable. With the growing complexity of the administration and the increasing workload of public authorities, the resultant lapses in the exercise of such authority have increased manifold.
The public has become aware of their rights and legal remedies and therefore, the tendency to move the courts for a writ of mandamus has also increased. Even very small issues are taken to the courts in writ to expedite the remedy.
Writ of Mandamus now covers practically the whole ground of Certiorari. Hence the statement, In India also there is now a ‘Certiorarified Mandamus’. When the court issues a writ of certiorarified mandamus it means the court quashes the particular order along with that it directs the authority to do what is lawful.
3. Writ of Quo Warranto
Quo Warranto is a writ issued by a superior court inquiring by what authority a person claims to exercise a particular right, or to hold a particular office.
It is a device to control executive action in the matter of making appointments to public offices. In this process the usurper of public office may be removed and the rightful person may be allowed to occupy this office.
The claimant of a writ for quo-warranto has to satisfy the court that the office in question is a public office and has been held by the usurper without any legal authority.
In proceedings for a writ of quo Warranto the applicant does not seek to force any right of his as such; nor does he complain of non-performance of any duty towards him. The Writ in question is the right of the respondent to hold the office and an order that is passed is an order ousting him from that office.
An application for Quo-Warranto may be refused if the court finds that it would be futile to issue the writ. For example, in the case: Lakhan Pal v. A. N. Ray the appointment of Mr, Justice A. N. Ray as Chief Justice of India in the suppression of three Senior Judges of the Supreme Court was challenged by a writ of Quo Warranto filed in Delhi High Court.
The writ was refused by the Court because it would have been futile as the three Senior Judges who were superseded had resigned, and after their resignation Justice A. N. Ray became the senior-most judge of the Supreme Court and could be re-appointed even if it were assumed that the appointment of a Chief Justice should be on the basis of the seniority rule. 44. What the court has to consider in a matter of quo warranto is whether the appointment had contravened any statutory provision
The court has to examine under such proceedings whether the appointment of such a person was made in accordance with law or not. The validity of the rules or statute under which such appointment was made cannot be challenged under these proceedings. A stranger to such post can also apply for a writ of quo warranto. The writ of quo-warranto operates against the holder of the office and not against the Government. The person so removed shall not be re-appointed.
A writ of quo-warranto is issued to prevent a continuous exercise of unlawful authority. However, it cannot undo the actions already taken by such authority. It cannot jeopardise the lawful rights accrued to individuals in this process. Although a writ of mandamus can also be issued on the grounds of mala fides and arbitrariness, but when the office is filled up a writ of quo warranto is preferable. Mandamus is desirable to be issued when the office is vacant.
4. Writ of Certiorari
Certiorari means “to certify”. A writ of certiorari (cert.) is an order of an appeal or appellate court ‘directing a lower court to deliver the record in the case for review. In other words it is a writ which is issued by the High Court to subordinate judicial or quasi-judicial bodies directing them to transfer the records of a particular case in order to ascertain whether the court has the jurisdiction to give the order or whether it is against the principles of natural justice. A writ of certiorari is corrective in nature.
In Hari Vishnu Kamath v. Ahmad Ishaque, the Supreme Court stated the following four propositions were stated by the Court:
- Certiorari will be issued for correcting errors of jurisdiction;
- Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of it undoubted jurisdictions, as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice;
- The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous;
- An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.”
5. Writ of Prohibition
The object of this writ is to restrain the Courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine the Courts or Tribunals of inferior or limited jurisdiction within their bounds.
The writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but also in a case of departure from the rules of natural justice.
- Absence or excess of jurisdiction– where there is an absence of jurisdiction or total lack of jurisdiction.
- Violation of natural justice– In a case where the principle of natural justice has not been observed or if observed there is a violation of those principles. For example, if the opposite party have not been served with the notice and not been heard. Then the writ of prohibition can be issued.
- Unconstitutionality of Statute– whenever any tribunal or court proceed to act under the law which is ultra vires or unconstitutional, a writ of prohibition can be issued against the proceedings.
- Infringement of Fundamental Right– where the impugned action is infringing any fundamental right of the petitioner then the writ of prohibition can be issued.
- Error of law Apparent on the face of Record
An order of prohibition is also directed to an inferior judicial body or tribunal forbidding such court or tribunal from continuing the proceedings in a particular matter. A writ of prohibition is appropriate to restrain a tribunal, which threatens to assume or assumes a jurisdiction not vested in it, so long as there is something in the proceedings left to prohibit. Thus like certiorari, the writ of prohibition can only be issued if the person, body or tribunal is charged with judicial or quasi-judicial duties. However, the order of prohibition is issued when the error of law is apparent on the face of the record, wherein it is issued as a matter of right and not as of discretion.
A writ of prohibition can be filed when a court acts not within the limits of their jurisdiction but beyond its prescribed limitations. For example, if a trial is being heard without the court having the jurisdiction to do so, a writ of prohibition may be filed.
Writ of certiorari can be applied in situations where a court, on passing an order, has gone beyond their jurisdiction in doing so. For example, when the court passes an order for a case which they had no power to do so, the aggrieved can apply for the writ of certiorari.
Thus certiorari and prohibition are two different writs, which are issued at different stages of a judicial proceeding to check and regulate the inferior court or tribunal to exercise the jurisdiction appropriately while remaining within the prescribed limits of such jurisdiction. It checks the errors of law in this process. Orders of prohibition are issued before the conclusion of the proceedings whereas order of certiorari is issued to undo the error of law even after the proceedings are concluded. However, the validity of the statute under which such proceedings are lodged cannot be challenged or decided under such writs
Public Interest Litigation
Public interest litigation means litigation filed in the court of law with the view to protect the interest of the general public. The high court can hear matters of PIL filed under Article 226. Through PIL persons who were not directly affected in the case may bring to the notice of the court matters of public interest. It is the privilege of the court to entertain the application for the public interest litigation. Public interest litigation has not been defined in any particular statute whereas it has been interpreted by the Judges.
It is the power granted to the public by the courts. PIL has an important role to play in the justice system; it affords a ladder to justice to the disadvantaged sections of the society, some of which might not even be well-informed about their rights. Furthermore, it provides an avenue to enforce diffused rights for which either it is difficult to identify an aggrieved person or where aggrieved persons have no incentives to knock at the doors of the courts.
In the case of Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, the Court ordered the closure of certain limestone quarries on the ground that there were serious deficiencies regarding safety and hazards in them. This matter was brought before the apex court by a PIL alleging that large scale pollution was caused by limestone quarries adversely affecting the safety and health of the people living in that area.
The Court had appointed a committee for the purpose of inspection of certain limestone quarries and the committee has suggested for the closure of certain categories of stone quarries having regard to the adverse impact of mining operations therein. So this strategy of PIL facilitated to bring to the notice of the apex court a very much important, needy and timely concerned problem as the protection of ecological balance is a burning issue.
This strategy of PIL facilitated in bringing to light the issues relating to environment protection, social justice, fundamental rights economic issues and also matters involving national importance like elections and powers of the Central Bureau of Investigation.
 State of Madras v. V.G. Row, AIR 1952 SC 196: (1952) SCR 597.
 Ambedkar, B. R., CAD Vol. VII, p. 953
 (1950) SCR 594
 (1950) SCR 594
 Special Leave Petition (C) No 29040 of 2018
 Vidya Verma v. Shivarain, (1956) S.C.A. 357
 Pratap Singh v. State of Punjab, A.I.R. 1964 SC 72 page 83
 AIR 1975 Del 66
 (Black’s Law Dictionary, 320).
 AIR 1955 SC 233
 Halsbury’s Laws of England, 3rd Edition, Vol. 11, page 114
 1985 (2) SCC 431