Order XXXVIII - Application for enforcement of fundamental rights
(Article 32 of Constitution) : Supreme Court Rules 2013
How to file Application for enforcement of fundamental rights
(Article 32 of Constitution)? Order XXXVIII of Supreme Court Rules 2013
Order XXXVIII of Supreme Court Rules 2013 : "Application for
enforcement of fundamental rights (Article 32 of Constitution)"
1. (1) Every petition under article 32 of the Constitution
shall be in writing and shall be heard by a Division Court of
not less than five Judges provided that a petition which docs
not raise a substantial question of law as to the interpretation
of the Constitution may be heard and decided by a Division Court
of less than five Judges, and, during vacation, by the Vacation
Judge sitting singly.
(2) All interlocutory and miscellaneous applications
connected with a petition under article 32 of the Constitution,
may be heard and decided by a Division Court of less than five
Judges, and, during vacation, by the Vacation Judge sitting
singly, notwithstanding that in the petition a substantial
question of law as to the interpretation of the Constitution is
2. No Court fees shall be payable on petitions for habeas
corpus or other petitions under Article 32 of the Constitution
arising out of criminal proceedings, or in proceedings connected
with such petitions.
3. A petition for a writ of habeas corpus shall be
accompanied by an affidavit by the person restrained stating
that the petition is made at his instance and setting out the
nature and circumstances of the restraint.
Provided that where the person restrained is unable owing to
the restrained to make the affidavit, the petition shall be
accompanied by an affidavit to the like effect made by some
other person acquainted with the facts, which shall state the
reason why the person restrained is unable to make the
The petition shall state whether the petitioner has moved the
High Court concerned for similar relief and if so, with what
4. The petition shall be posted before the Court for
preliminary hearing, and if the Court is of the opinion that a
prima facie case for granting the petition is made out, rule
nisi shall issue calling upon the person or persons against whom
the order is sought, to appear on a day to be named therein to
show cause why such order should not be made and at the same
lime to produce in Court the body of the person or persons
alleged to be illegally or improperly detained then and there to
be dealt with according to law.
5. On the return day of such rule or any day to which the
hearing thereof may be adjourned, if no cause is shown or if
cause is shown and disallowed, the Court shall pass an order
that the person or persons improperly detained shall be set at
liberty. If cause is shown and allowed, the rule shall be
discharged. The order for release made by the Court, shall be a
sufficient warrant to any gaoler, public official, or other
person for the release of the person under restraint.
6. In disposing of any rule, the Court may in its discretion
make such order for costs as it may consider just.
Mandamus, Prohibition, Certiorari, Quo Warranto and Other
Directions or Orders
7. A petition for a direction, or order, or writ including
writs in the nature of mandamus, prohibition, quo warranto or
certiorari shall set out the name and description of the
petitioner, the nature of the fundamental right infringed, the
relief sought and the grounds on which it is sought and shall be
accompanied by an affidavit verifying the facts relied on and at
least three copies of the petition and affidavit shall be lodged
in the Registry. The petition shall also state whether the
petitioner has moved the High Court concerned for similar relief
and, if so, with what result.
8. The petition shall be posted before the Court for
preliminary hearing and orders as to the issue of notice to the
respondent. Upon the hearing, the Court, if satisfied that no
fundamental right guaranteed by the Constitution has been
infringed or that the petition is otherwise untenable, shall
dismiss the petition and if not so satisfied, shall direct a
rule nisi to issue to the respondent calling upon him to show
cause why the order sought should not be made, and shall adjourn
the hearing for the respondent to appear and be heard.
9. If the Court, on preliminary hearing, orders issue of show
cause notice to the Respondent, he shall be entitled to file his
objections within 30 days from the date of receipt of such
notice or not later than 2 weeks before the date appointed for
hearing, whichever be earlier, unless directed otherwise by the
10. Upon making the order for a rule nisi, the Court may, if
it thinks fit, grant such ad-interim relief to the petitioner as
the justice of the case may require, upon such terms if any as
it may consider just and proper.
11. (1) Unless the Court otherwise orders, the rule nisi
together with a copy of the petition and of the affidavit in
support thereof shall be served on the respondent not less than
twenty-one days before the returnable date. The rule shall be
served on all persons directly affected and on such other
persons as the Court may direct.
(2) Affidavits in opposition shall be filed in the Registry
not later than four days before the returnable date and
affidavits in reply shall be flied within two days of the
service of the affidavit in opposition.
(3) Within four weeks of the filing of the pleadings, the
petitioner shall file written brief prepared in the following
(a) At the outset, the brief shall contain a short summary of
the pleading essential for the decision of the points in issue.
This shall ordinarily not exceed two pages:
(b) Thereafter, the petitioner shall formulate propositions
of fact and law that are proposed to be advanced at the hearing
citing under each of those propositions, authorities including
text books, statutory provisions, regulations, ordinances or bye
laws or orders that are desired to be relied upon. In the case
of decisions, reference shall be given to official reports, if
available. In the case of text books reference shall, if
possible, be given to the latest edition. Where any statute,
regulation, rule or ordinance or bye-law is cited or relied
upon, so much thereof as may be necessary for the decision of
the points in issue shall be set out.
(4) Within four weeks of the service of the petitioner's
written brief on him, the contesting respondent shall file his
written brief setting out briefly the grounds on the basis of
which he is opposing each of the propositions formulated by the
petitioner. Under each of those grounds he shall cite such
authorities as he may seek to rely in the same manner as the
petitioner is required to do under sub-rule (3). In his written
respondent may raise objections as to the maintainability or
sustainability of either the petition as a whole or any relief
claimed therein in the form of propositions, supported by
authorities in the manner mentioned earlier.
(5) Within one week of the receipt of the brief filed by the
respondent, the petitioner may submit his reply brief which
shall be concise and to the point in respect of the points
raised in the respondent's brief.
(6) Copies of affidavits and briefs required to be filed
under this rule shall be served on the opposite party or parties
and the affidavits or brief shall not be accepted in the
Registry, unless they contain an endorsement of service signed
by such party or parties. Every party to the proceeding shall
supply to any other party on demand and on payment of the proper
charges, copies of any affidavit or brief filed by him. At least
seven copies of affidavits and briefs shall be lodged in the
(7) If the Court consider any of the propositions formulated
or grounds taken by any of the parties in the written briefs
filed as being irrelevant or frivolous the Court may award
against such party or parties such costs as the Court may
(8) At the hearing of rule nisi, except with the special
permission of the Court, no party shall be allowed to advance
any proposition or urge any ground not taken in the written
briefs, nor shall be allowed to rely on any
authorities (including provisions of statute, rule, bye-law,
regulation or order) other than those mentioned in the briefs,
unless such authorities or provisions have been published or
made after the written briefs were filed into Court.
(9) At the bearing of the rule nisi, if the Court is of the
opinion that an opportunity be given to the parties to establish
their respective cases by leading further evidence, the Court
may take such evidence or cause such evidence to be taken in
such manner as it may deem fit and proper.
(10) No party to a petition under this rule shall be entitled
to be heard by the Court unless he has previously lodged his
written brief in the petition.
Public Interest Litigation
12. (1) A Public Interest Litigation Petition may commence in
any of the following manners:
(a) as a Suo motto petition in pursuance of the order of the
Chief Justice or Judge of the Court.
(b) in pursuance of an order of the Chief Justice or a Judge
nominated by the Chief Justice on a letter or representation.
(c) by an order of the Court to treat a petition as a Public
Interest Litigation Petition.
(d) by presentation of a petition in the Court.
(2) In a petition filed under clause (d) of sub-rule
(1) the petitioner shall (i) disclose:
(a) his full name, complete postal address, e-mail address,
phone number, proof regarding personal identification,
occupation and annual income, PAN number and National Unique
Identity Card number, if any;
(b) the facts constituting the cause of action;
(c) the nature of injury caused or likely to be caused to the
(d) the nature and extent of personal interest, if any, of
(e) details regarding any civil, criminal or revenue
litigation, involving the petitioner or any of the petitioners,
which has or could have a legal nexus with the issue (s)
involved in the Public Interest Litigation; and
(i) whether the concerned Government Authority was moved for
relief (s) sought in the petition and if so, with what result.
(ii) file an affidavit stating that there is no personal
gain, private motive or oblique reason infiling the Public
(3) The Court may impose exemplary costs on the petitioner
(s) if it finds that the petition was frivolous or instituted
with oblique or mala fide motive or lacks bona fides.
13. The provisions contained in Order XV relating to
petitions generally shall, so far as may be applicable, apply to
petitions under this Order.