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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 raised.

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.

Habeas Corpus

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 affidavit.

The petition shall state whether the petitioner has moved the High Court concerned for similar relief and if so, with what result.

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 Court.

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 manner, namely:-

(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 brief, the
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 Registry.

(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 consider fit.

(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 public;

(d) the nature and extent of personal interest, if any, of the petitioner(s);

(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 Interest Litigation.

(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.

 

SUPREME COURT RULES 2013

(D) PROVISIONS REGARDING SPECIAL LEAVE PETITIONS UNDER
ARTICLE 136 OF THE CONSTITUTION

Order XXI - Special Leave Petitions (Civil) SLP

Order XXII - Special Leave Petitions in Criminal Proceedings

(E) APPEALS UNDER THE SPECIAL ACTS

Order XXIII - appeals under section 38 of the advocates act, 1961(25 of 1961)

Order XXIV - Appeals under Section 23 of the Consumer Protection Act 1986

PART- III
ORIGINAL JURISDICTION
(A) ORIGINAL SUITS

Order XXV - Parties to Suits

 

 

Order XXVI - Plaints

Order XXVII - Issue and Service of Summons

Order XXVIII - Written Statement, Set-off and Counter-Claim

Order XXIX - Pleadings Generally

Order XXX - Discovery and Inspection

 

 

Order XXXI - Admissions

Order XXXII - Summoning and attendance of Witnesses

Order XXXIII - Adjournments

Order XXXIV - Hearing of the Suit

Order XXXV - Withdrawal and adjustment of Suits

 

 

Order XXXVI - Payment into court

Order XXXVII - Special Case

(B) PETITIONS UNDER ARTICLE 32 OF THE CONSTITUTION

Order XXXVIII - Application for enforcement of fundamental rights (Article 32 of Constitution)

Order XXXIX - Applications for transfer of criminal proceeding under section 406 of the Criminal Procedure Code, 1973 and Section 11 of the Terrorist affected areas (Special Courts) Act, 1984

Order XL - Application for transfer under Article 139A (1) of the Constitution

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