Peti 1kla Moot

PETI 32

If the rihts are purely private in character no mandamus can be issued. 1 There are two exceptions to mandamus, but once they are absent and when the party has no other equally convenient remedy.2 Mandamus cannot be denied .3 the relating to mandaus has made the most spectacular advance.4 Mandamus is a very wide remedy which must be easily available to reach injustice whenever it is found.5 Technicalities should not come in the way of granting that relief .6 The powers conferred by clause (2) if article 32 is in the widest terms. 7it is not only the prerogative writs of mandamus ,habeas corpus, etc . which can be issued by the sc but also writs in he nature of these high prerogative writs . 8 this provision conferring on the Supreme court power to enforce the fundamental rights in he widest possible terms shows the anxiety of the constitution makers not to allow any procedural technicalities to stand in the way of an enforcement of fundamental rights .9 Where a violation of a fundamental right of a citizen is alleged undetr article 32, it cannot be dismissed as not maintainable , merely because it seeks to distinguish or challenge the ratio decidendi of an earlier judjement except where it is between the same parties and in respect of the same cause of action.10but if the court is satisfied that he issue raised in the latter petition requires consideration and in that respect the earlier decision requires reexamination .11the court can certainly proceed to reexamine the matter.12 Therefore the writ petition under article 32 which are neither for ‘reviewing’ nor for ‘setting aside’ or ‘questioning’ the earlier decision cannot be said to be not 1

Shri ahadi sadgara muktajee vandaswami suwarna jayanti mahotsv smarak trust v. VR rudani & others AIR 1989 SC 1607 2 ibid 3 ibid 4 ibid 5 ibid 6 ibid 7 Bandhua mukti morcha v. union of India AIR 1984 SC 802 8 ibid 9 ibid 10 Sanjay singh & another v. public servide commission Allahabad & another AIR 2007 SC 950 11 ibid 12 ibid

maintainable.13 It is the duty of the court tu uohold the constitutional values and enforce the constitutional limitations as the ultimate interpretor of the constitution .14 if a mistake is detected ad ye apecx court is not able to correct it with a view of doing justice for fear of being misunder stood, the cause of justice is bound to suffer and for the apex court the apprehension would not be a valid consideration.15 The supreme court while administering justice does not take into consideration as to who is before it.16

Peti 226

Courts should not pass orders which instead of achieving the underlying spirit of part IV a of the onstitution of India has a tendency to destroy or regate the same. 17 In a matter where there is no rule or reglation governing the situatiation or where is one , but is not violated the court should not overturn a determination unless it would be unfair to do so.18 Peti -21 The question is whether the courts can look into the provisions of international convetions and treaties.19 We need not debate much on the issue as the apex court has in so many words now said that even though there is no municipal law the same can be looked into and can be used to interpret municipal laws so as to bring them in consonance with international law.20

13

ibid IR Coelho v. State of TN AIR 2007 SC 861 15 AR Antulay v. RS Nayak AIR 1988 SC 1531 16 Shitlu PD Shukla v. State of UP AIR 1986 SC 1859 17 AIR 2007 SC 254 14

18 19 20

Pride foramer v. union of India AIR 2001 Bom 332

It is now an acceptd rule of judicial constitution that regard must be had to international conventions and norms for construing domestic law where there is no inconsistency between them and tere is a void in the domestic law. 21 This is implicit from article 57 c and the enabling power of the parliament to enact laws for implementing the international conventions and norms by virtue of article 253 read with entry 14 of the unon list VII schudle of the constitution .22 Article 21 has enough positive content in it .23 we may also refer to the article of DR M Indira and DR Alka dhal under the caption “ meaning of life suffering and death” as read in the international conference on health policy ethics and human values , held at new delhi in 1986 . 24 this is what the learned authors stated about life in their article :“ life is not mere living but living in health. Health is not the absence of illness but a glowing vitality the feeling of wholeness with a capacityof continuous, physical , social, spiritual , and psychological well being are intrinsically woven into the fabric of life”.25 In cases involving voiolation of human rights, the court must for ever remain alive to the international instruments and conventions and apply the same to given case when there is no inconsistency between international norms and domestic law occupying the field.26 In the instant case, the highcourt appears to have totally ignored the intent and comtent of the international conventions and norms while dealing of the case.27 PET 14 The doctrine of equality has many facets .28 It is a dynamic and an evolving concept .29 its main facets, relevant to Indian society , have been reffered to in the preamble under the sub heading “right to equality” . in short the goal is “equality of status and of opportunity” .30 article 14 must be understood not merely with reference to what they say 21

Vishska v. stat of rajasthan AIR 1997 SC 3011 ibid 23 P. rathinam v. union of India AIR 1994 SC 1844 24 ibid 25 ibid 26 Apparel export promotion council v. A.K.chopra AIR 1999 SC 625 (634) 27 ibid 28 Indira swahney v. union of India AIR 1993 SC 477(502) 29 ibid 30 ibid 22

but also in reference to the several articles in part IV.31 “justice social , economic , and political are the sum total of the aspirations incorporated in part IV. Our constitution confers rights on every human being and certain other rights on citizens.32 Every person is entitled to equality before law and equal protection of laws.33 So also, no person can be deprived of his life or personal lberty exceptaccording to peocedure established by law.34 Thus the state is bound to protect the life and liberty of every human being be he a citizen or other wise .35

31

ibid National human rights commission v. state of arunachal predeh & another AIR 1996 SC 1234 33 ibid 34 ibid 35 ibid 32