 Very good morning the video is on So we have disturbed you early morning on a Saturday when otherwise a normal lawyer would like to relax No, no, no my morning start very early. This is quite late for me. It's absolutely fine. I can have it earlier still So that is a lesson to be learned for all the young young budding lawyers Inspiring lawyers and the lawyers like us to learn what is the key for the success So welcome on the board for on behalf of beyond CLC. Thank you and As when we had invited you and requested on behalf of beyond plus you see we are organizing different sessions on different Topics and that is why so that the young lawyers these students can learn what is all going on You yourself do not require any further introduction. You are a senior advocate additional solicitor general just for the participants who are on the board and I can On my own say that what is a metabachan shansha in the film industry who are what in the Industry where people learn about you. They learn the style the gate They observe you and I must say that once you visit it to the high court for the UPSC matters People have been charm. They say that if one has to learn to address the issues one has to learn from you So over to you. Thank you. Yeah Thank you very much because Generous of you to say all that you did much of which is undeserved, but thank you so much. Nevertheless, it's a very important topic that you have chosen For discussion today and my say it's important is because the preeminence of 226 is because of retreat of article 32 The Constitution originally conceived had perceived 32 as a linchpin for rule of law by Because it was considered a fundamental right itself That is the right to move the Supreme Court for the fundamental right itself and the Supreme Court was then positioned as the protector and Guarantor what is called a sentinel on the TV where law is concerned Fortunately, unfortunately, I think unfortunately because I think the distortion the Constitution the Supreme Court has as I said Just hold on I will just ask because some people are posting in the session that they are not able to hear Whether everybody's able to hear just post it on the chat box so that we can see because if primarily all people are able to hear It would be a issue at their end because a majority of the people are sick. Yes, it's fine. Everybody's posted. Thank you Yeah, any sort of any person having a difficulty. They have to check it at their end a Band with other issues have to be checked at their end. Thank you. So sorry to bother you So as I saying was the Supreme Court is retreated from the position of preeminence the Constitution and actually best in it and Consequently, there has been an elevation of state of article 226 and the elevation of status article 226 is because in so far as the relevance of not just rule of law but constitutionalism because Constitutionalism is a facet of rule of law and rule of law as we understood as something distinct from rule of men That is how we began that is total and the other thinkers that this talk about and it is position to actually contest What is called divine right a divine right of kings as very one knows has got various manifestations in it And the arbitrary exercise of power is nothing but a manifestation of divine right to So what a judicial review through article 226 does and positions in the constitutional setup is to contest What is essentially an arbitrary exercise of power? So what the court says is give a lot to keep from the judicial power and not concede to bureaucratic abuse The individual rights and liberties are vested by law in People at large and this is here that the relevance of 226 comes in and the relevance becomes more Significant because of as I said the diminishing importance of article 32 The fact that the executive which is primarily reined in through the excelsisional review was concerned about 226 is apparently from the 42nd amendment Many of the people here would not be aware About a 42nd amendment was but that was in fact part the emergency wherein the attempt was made by the executive to curtail If not eliminate all together the powers of the high court So what actually had happened was they amended the existing article 226 altogether They added 226 a they added 228 a and they also had article 131 a in the constitution And the purpose of that exercise was to deny the high courts the power to actually issue rates for any other purpose I'll come to that in a minute's time what any other purpose is and also restrict the capacity of the high court to deal with Ultra virus legislations that which is vested only in the Supreme Court and even when state law was concerned article 228 He had contemplated that only a bench of five and two-third of that Bench could decide now why did the Supreme why did the executive deal with that the executive dealt with this in this particular manner because in the emergency a case of excess executive excess and complete Closure of all avenues of democratic expression The high courts had actually stood up They had stood up to the executive and used the power of article 226 to reign in excess and it is for this reason that 42nd amendment actually curtailed the power the high court which was corrected by the 44th amendment Why am I referring to this is that whenever we deal with the provision? It's very important to know why the provision is there What's the purpose of the provision and how that region has been dealt with and what are the historically important? Circumstances which bring to sharp of focus the work of that particular person So when we deal with article 226, you have to keep in mind not only the fact that in so far as the jurisdiction is concerned Tell this doesn't explain his plenary But there has been attempts to curtail article 226 and the curtail article 226 by the very people which article 226 is Used to in some way control and why is this important is actually the subject matter of what I'll be talking to you today And as I'm on this particular topic. I'll first deal with Certain basic expressions with which we are familiar but about which you know very little for example prerogative Right now even says the prerogative rate prerogative rate Why did the expression prerogative rate come and is prerogative rate a correct description of article 226 in the context of that set Now this is not a very interesting history to it The expression prerogative rate did not come till as late as the 17th century The dates I got a long history running into about a thousand years I will not go into that particular exercise because that could be subject matter of different discussion altogether And it was the expression prerogative rate was associated with habeas corpus And habeas corpus because of a gentleman called Montagu And Montagu had replaced Edward Koch And Edward Koch is credited with mandamus when I deal with mandamus I'll deal with what Edward Koch did So what did Montagu do? Dealing with habeas corpus is a beneficial jurisdiction What Montagu did was he said I will call it prerogative Because you want to associate the sovereign with a beneficial relief And therefore you will elevate the sovereign To the exercise of beneficial jurisdiction through a rate of habeas corpus Quite obviously different from the present purpose and efficacy of habeas corpus itself I'm just giving you a history where this is concerned Now interestingly as I pointed out Montagu was replaced by Replaced Koch and Koch is credited with mandamus Which I'll deal with it later specifically in mandamus And Koch when he devised the principle of mandamus He devised it when he was punished by the sovereign By removing him from the court of common peace to this court Wherein he devised in bag's case the rite of mandamus Essentially to deal with the question of error and misgovernment altogether Because the remedial rite of mandamus, the remedial rite of extremely extensive nature Which is actually devised by Koch And devised by Koch at a time when he was actually punished Because of standing up to the sovereign, that was a bone arc But that said whatever that might be As far as the rites are concerned, the word rite was basically from the 11th century onwards It was basically official communication Which has been issued by the monarch For the purposes of either mandating something to be done Or summoning of particular information Or releasing of particular people Or asking for authority for what was claimed All this was called rites because of official communication Sent by the sovereign and which subsequently became commanding mandamus Asking for right to hold position Co-Varanto Requiring a person to be released That is Hebes Corpus Accessing the records that is tertiary But over a period of about a thousand years It evolved, it grew Not originally as prerogative rites Which came only in the 17th century as I explained to you And later it evolved, regressed And moved again where it is today So the correct way to describe rites today Will not be prerogative rites Because provided for in the constitution The correct description of rites today Would be not prerogative but extraordinary rites So it's called extraordinary And as everyone knows Where this is concerned We also write extraordinary original Why do you call it extraordinary original? It is not prerogative, it is extraordinary And it's extraordinary original Because this is vested in a constitution Both in the first instance I deal with review, primary review and secondary review The question of originality will become important So it's called extraordinary original jurisdiction Because it is vested in a constitutional court For a primary review Of certain actions of the executive and the legislature Where it rains in arbitrary exercise of the executive And in some way controls the doctrine of ultra-virus The powers of the legislature In devising 226 Are constitutional famers exhibited extreme prescience It is, we have to be credited with a fair amount of foresight In devising something as article 226 Because as the Supreme Court itself has said 226 is comprehensively worded And this everyone must keep in mind There are no limits on 226 Except those which can be implied in it For the purposes of decision making In the facts of the particular case And the other reason for this is A part to find that 226 itself is a comprehensive methodology It is vested in what is called a court of record And a court of record everyone must know Courts of records are the high courts And the Supreme Court And the court of record is a court Not only one whose records are kept In for perpetual testimony in the court itself But on which there are no restraints on jurisdiction That is there is nothing that a court of record can do Unless it is shown that it cannot do Which is like exact opposite of what an ordinary court will do Because the court of limited jurisdiction Can't do anything till it is vested with the power to do it So this is a court of record So the ricks and constitutional courts These are extraordinary original jurisdiction An extraordinary original jurisdiction For the purposes of reigning in the executive And for that matter controlling that particular legislature So if this is the purpose of a written petition Then how is 226 worded? That the wording of 226 is very important And it is necessary to keep in mind The difference between 226 and 32 Unlike 32 which is confined only to fundamental rights As a 226 system said 226 goes beyond And 226 goes beyond from fundamental rights To any other purpose So this is very important Any other purpose And as I point to the beginning When the 42nd amendment was brought about 42nd amendment had eliminated And excluded altogether from 226 The expression any other purpose Why? Because it is any other purpose Which makes this particular jurisdiction of 226 As potent as it is today And what is any other purpose? Any other purpose is not just fundamental rights Because fundamental rights are essentially rights Which are guaranteed by part 3 Are available in the state And actually basic and integrant For any setup Which cannot be any derogation for fundamental rights But fundamental rights do not exhaust All kinds of rights And even if there are certain rights Which are not fundamental Those rights can yet be significant and important That is statutory rights And statutory rights are public law rights They cannot be elevated to the state of the fundamental Right with rights nevertheless Now as soon as those rights are concerned And remedies which arise on those rights are concerned Article 226 addresses those rights So Article 32 does not And that is for this reason When you deal with any other purpose And you read any other purpose with the bodies To which 226 will relate Who will, what 226 will relate 226 will relate to any person or authority Now any person or authority is again important Any other purpose Any other person or authority Now who is this person or authority? Does it mean anything? Yes, it does mean anything And why do we, why do you say it would mean anything? Here another principle which must keep in mind Whenever the Constitution does not define anything Or for that matter any central statute Does not define anything You rely upon what the General Clauses Act And the General Clauses Act Is now constitutionally considered To be an aid to interpretation of the Constitution That's because of Article 367 And when Article 367 says It defines person in the Constitution To mean any person or collection of persons whatsoever Subject of course to context to contrary So when we deal with any person Any person will not necessarily mean A statutorily incorporated body It can mean any person Maybe even a private person The test is not what the person is Or how the person is constituted The test is what the person does So the test there would be Not just any person A person who exercised what is called A public duty So when 226 comes in And 226 for any purpose And any purpose is to any person Any person or authority The question of that any purpose Is to some extent even a large more To any person or authority To actually vest a responsibility in the High Court To give a remedy and provide a relief Which is exhaustive and expensive Interfering in every aspect Of public law I'll come to public law later What public law is So that this is very important And it will deal with 226 That we'll deal with that aspect A bit later when I deal with public law But proceeding on any person or authority To the meaning of the expression authority Now we know any other purpose We know a person We know general law is the act Authority Now should the authority ordinarily What the meaning of authority You go to part three of the Constitution And look at Article 12 Article 12 defines authorities But for Article 226 You will not look at Article 12 at all Because 226 is not dealing with Fundamental Rights alone 226 is dealing with Legal Rights And Fundamental Rights Any other purpose Not the Fundamental Rights alone So when you deal with authority Will not construe authority Restrictively So as to limit it to an Article 12 authority You will include in it As the Supreme Court has also done The context of Article 12 That I am not going to deal with at the time being Both statutory and non-statutory authorities Performing a public duty And there have been instances where Even private trusts For example, those who run a college Have been held to be subject to Article 226 Because the court has found That what has actually been undertaken by them Is not strictly speaking in the realm of Private law But it is In the realm of public law So what is the difference between a private law and public law The difference between a private law and public law is basically Insofar as the relationships are concerned Say of contract or tort And I will Qualify the question of tort Where strict liability and Article 226 is concerned But keeping that aside Personal relationships Which arise inter-parties Between two individuals So as to in some way In Thrive an interface between The two private individuals Without intervention of a third Or affection It's affecting People at large generally Or involving any statutory or governmental department or authority That is actually what is broadly What the difference between a private and a public Law aspect is concerned And it is for this reason also Even if a body is a statutory authority Presuming a body is a statutory authority Because the body is a statutory authority Will it lie? No The answer is no Because even if it is a statutory authority Then in that event Only that aspect of that authority Will be subject to a writ review That which affects public law That is it has public law consequences Why? Because 226 is a public law remedy So you don't look at the body You don't see how the body is constituted You see what the body does And you see what the body does And you keep it In the context of whether it affects public rights In that event public law remedy Why? Because as far as occasion or 296 as a ban The beginning itself is concerned It is to deal with the principle of constitutionalism That is those ideas, attributes, and behaviors Which limit the arbitrary exercise of power That is the official action Should be defined by and regulated by law And the purpose of 226 is to enforce that Now how does 226 enforce this? Is there method? This comes the difference between the 226 and the suit How do you? What is the difference between the two? What are the differences between the two remedies? Because even when a virus is concerned A virus can be challenged in a suit What is so special about 226 And how is 226 different from a suit procedure? We have already mentioned Any purpose in dealt with any authority We have also dealt with public law We have dealt with everything How is the difference? The difference here is, and this is important When your writ court looks into a matter A writ court doesn't look at the matter Like an appellet court It doesn't look into the matter By substituting itself for a decision-making authority It doesn't examine the matter to see Whether the decision which would be rendered Could have been rendered differently on facts It doesn't look into that particular matter to see Whether the decision is right or wrong In the understanding of the judge who is considering What a writ court will do And what a court has to see in a writ proceedings Is the method in which the decision is taken That is, is this method appropriate? Has it been fair? Has the person who has been affected been heard? Is the procedure compliant to natural justice? Has malachite in some way affected it? Is the person acting on the dictate of anyone else? Is there an element of bias in that particular exercise altogether? Is it within jurisdiction? I'll come to look at your jurisdiction Because jurisdiction is the key So all these factors come, you look at a decision And you don't look at the merits of the decision As said, it's what decision is But you look at the method in which the decision is taken And if you find that the method in which the decision is taken That particular method is in some way informed Then the question of infirmity which so arises Will then differentiate that decision making process So the decision making process is then initiated By that particular method and this is what review That's the reason why the expression is review You examine it for the purposes of deciding Whether the procedure which has been followed The procedure which has been followed By the decision making authority That procedure is right or not Now in dealing with this particular procedure I mean I'll give you the question of jurisdiction later But at first you can tell it who has the jurisdiction And tell it to a decision to what extent will it expand To what extent does it reach Here it is important to note that 226 was amended Prior to 42nd amendment which was amended earlier too The reason for the amendment to 226 was that I was unusually enacted because the writ Courts jurisdiction lay only to Within the territorial limits of the High Court There was a view which the Supreme Court Induced the Constitutional Bench Judgment Election Commission's case That the High Court, only that High Court Within whose jurisdiction the authority was actually Situated, would have the right Which gave as to the Pajab Rana High Court The circuit went really that gave them the right For the purpose of dealing with these particular issues That there are certain High Courts which just digressed on this And they looked at 226 to say that no, no You cannot confine wits only to such courts Where the body of the government or the department is situated You have to look at the cause of action And it is for this reason that the 15th amendment Introduces clause 18 to article 226 And which subsequently became clause 2 in article 226 And the expression which was there was that Even if the body is not within the jurisdiction Of the court concern That is not situated to the territorial limits Of the court concern If part of the cause of action arises within the jurisdiction Now this part of the cause of action arising In jurisdiction is a beneficial provision Which because its material has to be expansively construed But has led to a fair amount of confusion As to what is the part Because then is any insignificant part Adequate for the High Court to exercise jurisdiction Can any circumstance alone rest the High Court To the jurisdiction How do you say that the test of a part of the cause of action Is actually satisfied Now the part of cause of action has to be An relevant part of the cause of action That is something which has a bearing on the controversy It's not just anything That is if the merits of the controversy Are in some way entrenched or impacted By something which is relevant And goes to the meat of the matter So as to affect the rights of the parties Then any insignificant part too Of that particular issue Will rest the High Court to jurisdiction Not that any significant part Will rest the High Court to jurisdiction That is where the key comes in This is where the key is The part may be insignificant In the totality of things But will be relevant for the controversy And as long as it is relevant for the controversy The fact that it is only a miniscule part Will not in any way Deprive the High Court of jurisdiction That miniscule but relevant part Will rest in the High Court to jurisdiction However, the issue is both insignificant Of that but a communication of taking place Some correspondence of taking place itself But that can actually turn into correspondence Because the rights are being affected By something else The remedy is in some way impaired By something else Their correspondence will not be in some way They're not necessarily You have the cause of action So it is for the purpose of cause of action There has to be a real link And here comes the question Of what is called forum convenience So this is an important material You must know Because when you deal with cause of action It also must know certain related term Whenever you look at law Whenever you look at things Don't only look at what you're reading Look at related concepts Link them Link them together So that you form in your mind A mental picture about law as a whole Because if law can never be seen in isolated silos It has necessarily to be seen as a whole What is called? What is called forum convenience Forum non-communist Forum non-communist is basically a principle Which says that the court Which is most suited for a particular controversy Should necessarily consider Because there may be cases where There can be multiple jurisdiction Which may be there in that event And that went One of the circumstances will come in Apart from relevance of the cause of action Would also be this picture issue Because the question is not discussion itself So you look at forum Non-communist becomes a picture As an issue Which becomes important too And you say okay What's the natural decision You look at various factors Apart from this picture issue You look at the convenience of the parties Because relevance of the issues And all the other aspects Which arise that is concerned To the purpose of finding what is known As a natural forum for particular jurisdiction When there is the context So the question of relevance The forum non-communist will then go together For the purpose of the best thing In the court with jurisdiction And while we are dealing with the question Of this particular The cause of action The relevance of territoriality The territoriality of it What must also be kept in mind Is that insofar as this question of locus Which I'll just elaborate in a minute's time Is different Which come related to the question of locus Which is different from The right to cause of action Now what is locus Where they dealt with the ambit They dealt with the sweep They dealt with the limits Now who is it Who is it Sorry to bother you Large number of people are sending me WhatsApp and all They are saying You are too perfect to speak so fast They said kindly We slow Since large number of students are there Very well, I'll speak slow I'll just give me one hour So I have to compress it No, no, we can extend We always say it's not a 20 over match Or a 50 over match That it has to be over in that particular way People are just joining and joining You can't ask Rohit Sharma to stop hitting sixes No, no, no, no I'll do that Yeah Yeah, I'll be slow Whenever you think I'm going fast Just stop me No, no, no Just stop me, I'll go I'll go slowly Actually, I was compressing it in one hour No, no, you can be just like a gas You can expand the way you want The vessel is yours The gas is yours No, no, very well So what I was talking about is I was on this question I had dealt with the question of territoriality I dealt with the question of link I dealt with the question of forum non-convenience Now I come to the question of locus Locus is also dealing with it Now locus is entitlement of a person to come to the core That is a qualification of a person To actually bring a dispute before the core Now there is a movement where locus is concerned Also where 26 is concerned Because originally prior to 1981 The rules of standing were rather restrictive The rules of standing were restrictive Because it was felt that only the person was actually affected Who's right has been impaired Or whose legal interest has been injured Alone can come to the court That is the courts looked at it rather narrowly There was a change in the thought process later And the change in the thought process Is not only the maturity in legal thinking But also suits the purpose of 226 Because as I began speaking on this subject I said that 226 is now preeminent It's more significant than 32 And even the terminology of 226 is far more expansive So the reach, the sweep, the efficacy, the significance of 226 Is far superior to article 32 today Though article 32 has been placed on a higher status for the constitution Now we have to give soup the requirement of locus to 226 And what the Supreme Court said Supreme Court said it very pithily And very eloquent here Very beautifully They said, let's see We will discard the Anglo-Indian system We will abandon the restrictive rules We will embrace participative democracy The purpose here is to empower the individual The need to empower the individual is to reign in the executive Not just reign in the executive, have some control of the legislature Why do we need to control the executive and legislature? Because they have the authority They have the authority to alter legal relationships They have the authority to make impositions So if we have a restrictive rule of standing And we deny a person who is actually digging to the attention of the court The fact that there is a wrong Then in that event we let the bureaucracy Offer that matter the legislature free to abuse and misuse the law Now the abuse and misuse of the law must be prevented And how will it be prevented by providing a recourse Access to justice That's the reason why the Supreme Court has later said And that's the reason why I keep saying it again and again Whenever you read Always read a concept in the context of related concepts So access to justice is itself a human right The Supreme Court has said that Now access to justice is a human right If access to justice is a human right, locus cannot be a strict legal school And when dealing with the question of standing What you will actually necessarily have to see is That the person who is not just a wayfarer as the Supreme Court says But the person having a legitimate interest Raising an issue of significance For the purposes of some way controlling Exercise of power So Supreme Court post 1981 expanded the issue of locus And expanded the issue of locus And as we also had what's called social action of public education litigation also But even apart from that Say for the matter of corporations There is a change in thinking Even the corporations because I am deliberately referring to corporations Because these kinds of matters will be coming to court frequently So from Trindy Klal's case downwards There has been a change in also in thinking Because first the court distinguished between the company and the shareholder And they said actually that the shareholder has distinct rights The company has different rights So where a company is affected, the shareholder can't come But where a shareholder is affected, the shareholder may come So the Supreme Court then moved away from that thinking also And said that they may be, the call of action may be composite And because it is composite it will affect It can affect both the company and the shareholder too Because just like freedom of expression is concerned Or for that matter acquisition a share is concerned It can affect the rights of the person, the shareholder At the same time as far as issues concerned Can affect the profitability of the company And because there is a convergence of the interests over there The distinguish between say a corporation and a shareholder Was to some extent removed altogether So there has been a movement, there has been a movement In relaxing the question of standing But while you say that relaxing the question of standing Which has come And of course the spawning of public interest indication Elsewhere it has also come, which is unrelated Passive of it, what you must keep in mind is That as far as this issue of locus is concerned Is different understanding, justiciability I am deliberately referring to various concepts Because these concepts should play in your mind Locus is different from justiciability Justiciability is the right which you have Which is infringed It is different from locus Locus is a standing which makes the court recognize Recognize you as a person entitled to come to court For the purpose of raising a dispute Justiciability looks at the dispute which you raise to see But the court will in fact grant you the relief Which you are seeking And while on this particular issue These two things are often confused Locus doesn't mean justiciability Because not so many locus It can be shown to be non-justiciable too In the Ritz, in any case Where locus is concerned Not all Ritz are the same level where locus is concerned Because in certain Ritz implicitly I just talked here How change took place post-1981 In all Ritz are not the same where locus is concerned Same example, Haider's office Or for that matter co-quarantor The requirements of locus Both in habeas corpus and co-quarantor Are very different From Ritz, say a mandamus or a sorcerary Or for that matter even a prohibition They'll be different by it Because as far as a habeas corpus is concerned A habeas corpus or that a co-quarantor It's not necessarily the person who is affected It's not necessarily someone everyone knows Anyone other than the person who is affected Can come So haider's office everyone knows You see it every day happening For that particular co-quarantor Because co-quarantor doesn't come that often Now what is co-quarantor? Co-quarantor is basically sure right Sure right what? What sure right to what? Sure right to office Why do you need to sure right to office? Why you need to sure right to office? Because public offices should be protected From usurpers You cannot just go up Go to office and say this office is mine Because the office has got a public position It's got public consequences You have power which entitles you to interfere In personal or private relationship So usurpers have to be kept away And it is a facet of what is called good governance So in so far as co-quarantor is concerned Both latches Which I will deal with later because we have to deal With latches if you guys are concerned And locus are to a large extent diluted Latches and locus are diluted Why because the court says No matter who you are No matter how late you've come If you bring to the notice of the court The fact that there is a person who is a usurper Or there is a person who is not qualified to hold office Or there is a person who does not possibly have the right To particularly hold that office We will not say okay you came late Or we don't know who you are We are more concerned of the office With all the chures and grievances And we will look into it to see Whether that particular person Is actually entitled to hold the office So where these rits are concerned Apart from the general expanding of the question Of locus which comes in 1981 Implicit in the rits Is the requirement of dilution of this particular locus That is implicit in this particular rit But while on this particular aspect I just need to clarify because many times When we speak things get lost When I say qualifications Qualifications are statutory That is the rules, the entitlements The preconditions which have to be there Not the subjective evaluation Of a person's capacity to hold office That is not what Pohar on political side You may feel that person is not good enough Your feeling that the person is not good enough Will not lead you to file a co-waronto itself For the purpose of co-waronto You will have to basically see Are the rules, the constitution, the requirements Have they been violated Have they been influenced Have they been affected in any manner whatsoever So that is, it is in that way That it proceeds And so far as the question of co-waronto is concerned Now moving further Where this is concerned you dealt with The history, you dealt with the impact You dealt with the locus, you dealt with the standing Now can 226 For this reason you dealt with it I will come to the next later Can 227 be restricted? Now this is where the important 26 comes in Can you say okay This decision is final So whether there are many statutes to say This decision is final Because the statutes say the decision is final Or even if the constitution says the decision is final I like for the article 217 Of that one of the six Paragraph 6 of the 10 schedule Or for that article 363 of the constitution At very different times Or 323 A and B of the constitution And dealing with each separately Mainly because something is called final Doesn't necessarily mean that the right to judicial review Is affected or is impaired in any manner whatsoever Because this is destitute Destitute the constitutional court by the supreme law And what it is called Part of the basic structure Now basic structure is an expression which is bandit about rather loosely But it's an issue of extreme importance Because why is it basic? Because it's unaltered And because it is unaltered There cannot be any legislative infringement of it And because there is no legislative infringement Of this particular thing Notwithstanding the finality process Notwithstanding any restrictions The right of 226 remains That for example the judging the age of a judge 2017 Or for that matter the interstate water dispute That is 363 That goes to supreme court Or for that matter A 323 A and B When it dealt with the administrative tribunal But the supreme court said that It's not as a tribunal substitute the high court The high court can be excluded altogether If it comes to the high court So why did it come to the high court? Because 226 is part of the basic structure of the constitution And there can be no statute No law which excludes 226 from it So this is so far as that is the significance Of where 226 is concerned The very supreme significance of 226 is concerned Apart from this the limitation that 226 is concerned The other thing which you must keep in mind also I'll come to the aspect of this factor of this altogether The internationship between 226 and 32 I began by saying that 226 is today of far greater significance than 32 But we have to understand also the difference between 226 and 32 That helps things put in perspective What you should actually keep in mind is that You said something because No, it's fine So did you say something? No, nothing to you Ah, right Where 226, the difference between 226 and 32 Is concerned This is important I mean the basic difference is just the fundamental rights And you have the purpose I already pointed out how any other purpose is in some way Affected by it But that's not the only difference you have to be bothered about What is relevant here is also what is known as Resjudicator Resjudicator, the knowledge of Resjudicator The knowledge of Constructed Resjudicator Is very important for its Now supposing I have moved the supreme court And my matter is dismissed on merits If I move the supreme court My matter is dismissed on merits I cannot come to the high court again under 226 bar It's barred by Resjudicator Now not chanting section 141 the CPC Despite the fact the CPC does not in fact apply The principle of section 11 will apply Because section 11 of the CPC So the Resjudicator is concerned Is that it statutorily incorporates what is high public policy And the high public policy which is there Is essentially that there has to be finality mitigation That is what it is That and no person should be vexed twice the same offense For the same, for the faction Now it is for this reason that if you move a 22 You cannot come into 26 Similarly if you move a 226 You cannot go in 32 Again, you cannot move multiple 226 Like you have moved a 226 petition You cannot thereafter move another 226 petition Because you can say this issue is concerned It will be barred by Resjudicator Or what is known as Constructive Resjudicator We may say okay some point has struck me I will now challenge it on a different ground altogether Because I challenge it on a different ground altogether The ground is different Because the ground is different you can't bar In that event a Constructive Resjudicator comes in And Constructive Resjudicator to habits the filing Of the second rate petition also Now are there any exceptions Are there any exceptions to this Yes, there are exceptions to this An exception to this is a various purpose An exception to this Because as I said this issue is concerned The interplay of 32 and 226 If you look at the two section itself 226 begins The first part is not to be standing 32 And 226 force will not be in derogation of 32 too So not to be standing and not being in derogation Puts as far as fundamental rights are concerned The High Court is Supreme Court at par That is concerned the relationship situation is at par With that aspect is concerned So if you have moved the High Court You can move the Supreme Court yet Not standing against the High Court Though ideally it should be necessary That you have to do it on ground Which will be different because Because the court will come in discussion Me or may not come in Ideally 32 discussions should not come in But the way in which the Supreme Court Many times give you 32 petitions This particular point of loss That can be subject to a different discussion All together they are not concerned with that But when you talk about difference The difference is not only to be informed They can't simply say I add a ground to it The difference has to be in substance That if you look at the petition of the whole To examine it for whatever it is worth And in that event A heinous stopper's petition Can be filed for the same High Court again But provided it is substantively different Substantively different from the first petition Not different only in form But different substantively between the two There is a difference substantively So as far as fundamental rights are concerned Not sending a movement of the petition I can yet move the High Court in 226 Even after 32 has in some day been affected Has been moved unsuccessfully with this concern So that is an exception Where these aspects are concerned This leads to 32-226 broadly 226 generally Now I pointed out in the beginning As to the sweep of 226 And I pointed out That it's not dealing with merits But it's dealing with the method Now how do you deal with the method How do you decide How do you decide that this decision is right or wrong So they had They were originally three And now they are four ways In which it will be seen Now the three or the four ways In which it will examine its legality Procedural and so on as Irrationality And procedural impropriety They are basically the These are the three things Which were examined Now illegality is essentially one That you don't understand the law correctly You misapply the law altogether You the law says something You say something else altogether So that is Illegality As far as irrationality is concerned That is veterinary unreasonable That's what the veterinary unreasonable is Of a 948-49 case Where the court said That what you have to do Should be reasonable In the sense that a person Fairly disposed And versed in all that is relevant Should actually conclude That what is actually done is right It should be reasonable And procedural impropriety Or propriety is You have to follow a method Which is compliant with natural justice Do something which is fair Give a proper hearing Provide relevant documentation etc To this a fourth principle has been added And the fourth principle is very important And it is missed altogether And that's the principle of proportionality Now proportionality is something which is missed Often That is concerned And proportionality is a very significant aspect Of development Of judicial review And what you have to keep in mind The proportionality is concerned The method of dealing with Portionality is different from Say unreasonableness Or arbitrariness And why do I say so Proportionality has been seen In two different contexts Where fundamental rights are affected Or where arbitrary exercise of power takes place Now when fundamental rights are affected Then the general principle is there in the 206th petition That the decision maker That is the decision maker's Process of taking a decision alone Has to be seen And not the decision itself is varied And the high court will be the primary Decision making authority That is the judicial review Would be at the primary level In which you will interfere with the decision altogether And not look at the merits only But when you are dealing with a question of unreasonableness Is arbitrariness Fundamental rights directly is not involved That is, for example, article 14 Article 14 can have a distinction Between equality of treatment and arbitrariness Rohyappa expanded article 14 Beyond equality of treatment and its classification To arbitrariness So when we deal with this particular issue As far as the postality is concerned The high court exercising the test of postality Would, where the allegation is of infringement Of fundamental rights Be the primary body examining it And the high court which is dealing With the question of postality Where arbitrariness is concerned Between the secondary It will be a secondary review by In the latter case The high court will only look at The decision making process In the former case The high court will look at The decision itself So the postality in some way Enlarges judicial review further And permits the court to go beyond The traditional confines of judicial review So this is illegality, irrationality, Procedural impropriety And of course, Proposality are the four grounds on which This exercise of judicial review Actually takes place Apart from this That is, so far as these aspects are concerned There are certain related aspects Must always be kept in mind Now that pointed out Jurisdiction What the court in 226 does Is dealing with the issues of jurisdiction And what is jurisdiction? Now jurisdiction may not normally come This is the verbal court of any color Then all that had come then But jurisdiction is basically the limits Of decision making authority That is, so far as what you use What abuse, excess of jurisdiction Except for the question comes If there's qualification for acting In a particular way A precondition for acting in a particular way A manner in which a criminal has to be constituted In that event, those conditions have to be satisfied Before the decision maker Actually exercise that decision So that is the question of jurisdiction a lot But even when jurisdiction is concerned There has been a change But just like proportionality Has been added to the three grounds earlier Where jurisdiction is concerned There has been a change also Where this question of issue is concerned And when jurisdiction, principle is aniskinic principle You must read Everyone must read this law If aniskinic is concerned Because aniskinic has in some way Affected the law of jurisdiction as such By eliminating the difference between Error within jurisdiction And error outside jurisdiction And any error of law today Would therefore involve the point Of misuse of jurisdiction of the court To entitle the court to interfere So you must look into it Where this aspect is concerned To error of jurisdiction is concerned Because this is important The next issue is malafitism Because we talk a lot about malafitism here And it's very important You know what is malafitism Because I pointed out in decision making process That some are the issue of malafitism Now what is often missed Of malafitism is concerned Two things Malafitism can be malafitism in law And malafitism in fact And the difference between the two Is very important Because many times we come to court And we are told Let's see Have you made a person a party Making a person a party In a question of malafitism Would be relevant Only in the issue of malafitism in fact Malafitism in law Is the colourable exercise of the power Colourable exercise of the power Means that the power is exercised For the co-lateral purpose Because the power is exercised For the co-lateral purpose It's not necessary That as a requirement You are not many in treatment of a person Because that will deal with the organisation as such And because it deals with the organisation as such So malafitism in law Is the requirement of impending a person As a party need not be there So if you have physical deficiency You will not meet the person Against whom you've made Allegation of malafitism a party The answer has to be I am alleging malafitism not in fact I am alleging malafitism in law Malafitism in fact is Where a person is ill disposed Has a strategy towards That clear a dictation Or has got some kind of ill will towards it When you are dealing in malafitism in fact Then you have to be specific in what you say What you write, what you allege And you have to be absolutely clear In what you actually impute Because the presumption of law Under section 114 of the evidence act Is that public act is properly done So that is something which you must keep in mind Where malafitism is also concerned Now comes the issue of another issue Bias Because bias also comes in various aspects of concern Now when you deal with bias It's also to keep in mind What is the kind of bias That you are actually talking about And in bias is concerned There are two issues which always come Which I must tell you Because there is a lot of confusion Where this is concerned Bias can be two kinds Expression can be Real likelihood of bias And suspicion of bias Now the two are used interchangeably And what is the difference between Real likelihood of bias and suspicion of bias This is very important Real likelihood of bias There are some people judging to say They are not the same Real likelihood of bias leads it to the court To judge objectively Whether the system which has been taken Is correct at all or not As soon as suspicion of bias is concerned Suspicion of bias It moves beyond what the perception of the court is concerned And the general understanding of what a person May feel about another taking a particular decision So when you are dealing with the question of bias The law which is prevalent in India The law which is prevalent in India Is not suspicion of bias But real likelihood of bias That is actually the case Which was this certainly be considered And then again When you come in court What is the question of latches Because these are various issues which come You must know what it is What is latches The limitation act does not necessarily apply to 226 Limitation act does not apply to 226 And how do you control litigation Can you come to court at any point of time The answer is no So what the court says is You have to come to court at a reasonable point of time But what is the reasonable point of time To get a reasonable point of time to import What is the equitable doctrine of latches The equitable doctrine of latches Is essentially a doctrine which says That if by reasonable delay You can be shown not to have acquised in a wrong act Or you can be shown not to have waived the wrong Or if in that particular point of time There is nothing which has risen Which has in some way impacted Or created third party interests In that event You can still come to court not finding the delay That is the difference between a delay and latches Delay is statically prescribed The limitation may be beyond what is statically prescribed As long as it does not infringe the principle of latches And because as long as it does not infringe the principle of latches Mere delay at all will not come in And the Supreme Court in various cases Has condoned delay even up to 12 years Where the circumstance of the case is so warranted Particularly where fundamental rights concern And I pointed out The go warrant is concerned over that But the fundamental rights are concerned The question on latches is secondary important Because the principle of good governance is important And because the principle of good governance is important Therefore latches will not bar that particular remedy too So that is something which must be also kept in mind Then is question is question of fact These questions always come that are relevant across jurisdiction Many times you say no, no, no, no This is a disputed question of fact And the court, the writ court is a court of summoning jurisdiction Because the writ court, the court of summoning jurisdiction We are not going to go into question of fact Again, this is wrong Because across petitions where a court is concerned The court is both a court of law and a court of fact And because the court is a court of law and court of fact Mainly because disputed questions of fact and world That by itself will not in any way affect the conferral jurisdiction But is concerned And the court is competent also to look into the question of fact The only test is it should not be too complicated It should not require elaborate evidence And the right should be established Though the exercises or the merits or the infringement of it may be disputed Because what the test which must keep in mind is A writ never lies to establish a right A writ always lies to enforce a right So if the right is to be established in that event The writ is not an appropriate remedy Because of the disputed question of fact which comes in So the disputed question of fact also this issue is concerned Just keep that in mind Don't give a straight away answer to the disputed question of fact Therefore, the writ will not in any way lie back Coming back to 226, the purpose Coming back to 226, the amendment Okay, again the request has come slightly slow But I still realize when Indas Sehwag is playing Whether it is T20, 5-day or out of this He will play in his own style But still let it slow Very well Okay, so I was on the question of latches And because I was on the question of latches They have pointed out that You will not statutorily bring in the periods of limitation in the statute That goes to discussion of court The basic judgment of justice is Ayatollah In Tithagadh's case that is the Justice is Ayatollah's judgment Which actually mentioned this particular thing On a case-to-case basis Looking at how the matter proceed For the purposes of deciding Whether there is a cause for interference As long as what are the three tests No acquittance or labor Definitely I am not acquittance in that particular thing Not pay that particular right Two, no creation of a third party interest And so far as the controversy is concerned And three, the cause, the relevance Or justification for interference So latches will not bar Question of fact will not house Bias in fact is different from bias in law In jurisdiction, the difference between Error in and error outside jurisdiction Is now eliminated As a locus is concerned, locus is enlarged As a proportionality is concerned The question of proportionality becomes The test becomes different Regional review is now in so far extending Even beyond the traditional realms of it To deal with the question of proportionality Where fundamental rights are involved So 226 is metamorphosizing Into something which is Which was originally comprehensive But has become more so Because the way in which it has been interpreted And the reason And the reason for that That I keep saying is The purpose of 226 That is what you had pointed out Why do we need to traverse 226 Because if rule of law has to have a play If law has to be supreme If misgovernance has to be avoided If arbitrary power has to be kept under check If bureaucracy has to be in some way confined If the legislature has in some way to be limited If the constitution is to be supreme Judicial review has to reign And it is judicial review which for this reason Becomes part of the basic structure Because implicit in judicial review Is the supremacy of law And the supremacy of law is declared by the court And is declared by the court when vigilant And intelligent individuals bring efficacious issues Which raise pointed queries On matters of public significance For adjudication for the court That then exercises its constitutional power To rule on what is right And what the court rules on what is right prevails Because law is what the court says But the court will not say anything which is right Unless you are rightly disposed towards law And you know law yourself And that is the reason why we need to traverse 226 intelligently And understand it holistically So that when you court the court Invoking this particular provision The responsibility which you shoulder Considering the hori history of 226 Is duly vindicated By your understanding the concepts it underpin it And the machinery which activates As far as this is concerned We get to this one very important aspect is alternative remedy Alternative remedy every time it says the alternative remedy Why is the question of alternative remedy important? Because everyone knows an alternative remedy is a bar But alternative remedy is not always a bar And this must keep in mind The test which you must keep in mind is That alternative remedy is concerned Alternative remedy is a question which arises Question of discussion and of the court Not a issue of jurisdiction That is it's a policy and convenience to the court In some way evolves for the purpose of deciding Whether to entertain it or not There is no bar on the court To entertain a repartition on 226 Even if an alternative remedy exists This must keep in mind Because of the purpose of 226 itself And the exception in any case The no exception alternative remedy is concerned Are when you challenge the virus Why is it that when you challenge the virus Alternative remedy is not a bar Because in that event The alternative mechanism itself has got no efficacy It's got no play because it is ultra virus Because the procedure is ultra virus Don't in any way act on it Two where fundamental rights are affected If fundamental rights are affected is the right The constitution recognizes that right And you cannot possibly say it Because fundamental rights can be waived or abandoned Because the constitution guarantees them Where fundamental rights are concerned They also are in some way Or existence alternative remedy will not in any way waived And third Where there is procedural impropriety by naturalists So the person is condemned and hurt The vain with the decision making is actually rendered Is completely unfair Disposed with some kind of hostile intent For the objective decision making If that is shown in that event The existence alternative remedy alone Will not in any way bar the Which brings me finally to Ritz Now these are essentially principles across Ritz So what are the Ritz? The Ritz are basically as everyone knows habeas corpus, mandamus, tertiary prohibition Co-varranto I talk about habeas corpus and co-varranto Habeas corpus produce the person But the habeas corpus concern why we keep in mind So people are not adjusted appropriately yet The question is what is the date of return Habeas corpus is judged to be the date of return Now they can be different dates of return Depending on the circumstances There is a view which says then it is filed The view which says then the return is filed That is when the counter-availability is filed So the test is if from the date of where the The rate prediction is filed Till the date the counter is filed There is no change Then the test should be on the date The prediction is filed But if from the date the prediction is filed To the date that the reply is filed is a change It will be on the date of return So the date of return will vary Depending on the circumstances In the case As a mandamus is concerned Mandamus as I point out beginning Edward Pooke Remedial jurisdiction of the most extensive Nature to correct error and misgovernment So it is vile in its view It is supposed to actually address Every form of misgovernment It's a remedial date of the most extensive Nature a very very fulsome date As social area is concerned Social area is jurisdiction I talked about jurisdiction What jurisdiction is And as the jurisdiction is concerned Must keep in mind Arun Svinik And the law which follows As such is quickly issues concerned So as to keep in mind the error within And error outside jurisdiction It's rather complicated At want to take time with Anis Svinik So it will do you good If you read Anis Svinik And a judgment Supreme Court 2019 or 20 In embassy's case With examined Anis Svinik That is the social area is concerned Co-varrant 2 I also pointed out But what co-varrant 2 is That is right to hold For the purposes of this government And prohibition where that's concerned Prohibition is to bar something That is the state becomes different Prohibition unlike certiorari Is exposed So far as the issue is concerned Certiorari is to portion decision Cohibition should stay in a person From assuming jurisdiction But while these rits are there 226 talks about in the nature of So it's not that these rits Should be in the sense They understood in English law They are in the nature of those rits And they have to be in some way Being rid of the technicalities It's affected So this is one And you do not issue rits only You issue directions Declaration and orders too And that's what 226 is dealing with It's not just rits In the nature of what I pointed out But declaration, direction and orders too And declaration, direction, orders May not be rits Like you can order say Refund of money If it is consequential upon something Or you can declare An act ultra-virus An act ultra-virus That's declaratory Order is refund But it's concerned So the remedy is far greater Then just issuing rits Which will be 226 is concerned And finally, most importantly As far as 226 is concerned The biggest and secret Biggest Indian university system Is the right to give compensation Compensation has come in Not only because compensation Can be granted in 226 For violation of fundamental rights And violation of fundamental rights At the ground that it is infringement Of what is known as the principle of strict liability And it's infringement of the principle of strict liability Which entitles you on established violation Of right to petition the court And submit rejection And to hold the person Who then fits your rights liable And the court will in exercise of its right Grant you compensation And the compensation which will be granted Will be different from compensation You get in civil law It will not be compensation Just punitive in nature For the purposes of mysticism And mal-administration For violating fundamental rights For which law does not have any tolerance whatsoever So in 226 also That is where we talked about That certain suits and bids You incorporate into it procedure That is concerned also to grant compensation So from the way in which it develops From the way in which it began Initially to what will evolve The concept which in some way inhabited 226 today is a remedy which is comprehensive in nature To deal with every aspect of misgovernance Or abuse And empower those who actually invoke it For invoking the usage of the court To get either a wrong remedy Or a right vindication Thank you One of the We have been doing these sessions for a long time Probably you have Just weaved all the threads together And just carpeted a wonderful piece of carpet And surprisingly you have weaved off Everybody in such a way That only one question has been posed so far Everybody was trying to listen to you Rather than posing the questions One question meanwhile has come How does the doctrine of manifest arbitration Expounded in Sharabhaamu case Expand the scope of judicial review At Ratkan 226 It's a very very very interesting question And whoever has started Very intelligent question I must compliment the person who has ever asked that question Yes you see manifest arbitrariness At first glance may be seen to expand But actually it restricts in some way This is it And why I say so because manifest arbitration Is something which I have got Which cannot be legally sustained That is no principle or doctrine Can actually justify a particular finding So what the what the what the declaration law does is Rather than permit the court to interfere In any case of abuse or misuse It restricts it only in two cases of manifest arbitrariness Where it is self evident that there is a wrong Because it is self evident that there is a wrong In that event that is manifest That is the expression of the word manifest That the court interferes that this is concerned Now with all due respect to this particular doctrine This particular doctrine is also used That's why I say when I talk in the beginning I say when you deal with concepts You have to deal with concepts in a very interrelated way When I deal with arbitrariness In any case you have to also deal with What are you dealing with the arbitrariness about As I point out the proportionality is concerned That is to choose the least restrictive way In which an action is to be taken as the proportionality Because if I take something which is more Than what is required that is arbitrary Now manifest arbitrariness will be a roadblock over here In their question of proportionality is concerned Because how do you say That as far as the restriction is concerned Is it not distinctive or not Because you leave it to the subjective opinion Of the judge for the purposes of concluding Whether it is manifest at all or not So what is the legal structure that criteria On which in some way cabin this particular judgment For the purposes of concluding That it is manifestly so Because the way in which it is expounded It leads it to the whim of the judge concerned And his ideology and thinking And his assessment of facts Without there being any settled norm For the purposes of application of principles So broadly said as far as this is concerned This is bound to create some kind of confusion Because arbitrariness was there The question of interference was then settled The principles are well laid Manifest arbitrariness at all can be said That see you cannot possibly interfere Mainly because you feel that your opinion is different You will interfere only when you are satisfied That there is no doctrinal basis for that particular decision But then whether there is a doctrinal basis That decision will in some way be affected By the opinion of judge concerned also However the only way to reconcile this is That you will not for the purpose of simple disagreement Interface with the decision Unless you are satisfied That there is no warrant for that particular decision Or that particular enactment So in some way restrictive of the way The extent to which you can go And vindicative of the original intent of 26 years Not the merits of the decision But the method of decision making process Amar Veek, he is a practicing advocate out here He opposes the question Despite checking the executor's manifest arbitration There is need to evolve a better mechanism Where judiciary itself exercise executive powers Where it is commonly observed that judiciary on the executive side Is sometimes acting at most arbitraris I suppose it is a sedition Ashok Makar asks As per UGC norms the illegibility of a vice chancellor Is ten years experience as a professor In two CWP's honorable has given direction to the follow-up But state is following the direction What is the next remedy? No no it depends upon you see question is If any action is being taken Is something which is not warranted In that event or just wanted the rules In that event the entitlement to interfere exists That's not an issue at all As far as the views of Abuse by the judiciary is concerned Yes they may be instances that is done But I mostly think as an institution Where functionality is concerned Of all the august the government is actually Presently functioning The way in which it is discharging What is actually restricting it Under the constitution is laudable So yes they can be excessive Maybe we are not in a perfect system We are not in a utopian environment in any case There will be excess and some abuse But on the whole system is working fine Only one aspect I will be clarifying Some people are posting on the group chat The your views etc that we will not take Because we are just asking a Q&A Certain doubts which can be creeped in That will be on some other day When we can ask your thoughts On a different process What is their take What is the distinction between Subtle difference between article 226 And 227 when it has to be invoked On which platform So 226 and 227 are materially different Because 227 you see As well as we have the Supreme Court at the top Law is binding on all courts of tribunals area Now 227 in some way Gives supervising jurisdiction of the High Court Over all bodies and tribunals what may put So the jurisdiction of 227 Is over the tribunal authorities Under the High Court jurisdiction Which in any way say That the law declared by the High Court And as a firm by the High Court Will be binding on the tribunals So that is the jurisdiction actually supervision More or less akin to 2015 of the CPC But nevertheless because just under 227 Not limited to 2015 So you deal with the question of Errors of jurisdiction which are manifest In 227 To keep tribunals in the bounds of jurisdiction Now as far as that issue is concerned There may be some element of overlap In say the social area But in social area it is concerned It is the person which The rights are of the individual Affected by a decision Which can be in some way connected By a search area or a search area Irrified mandamus or search area is implicit Or by cooperation 227 goes directly the role between the Between the High Court And the subordinate tribunals in it To keep the subordinate tribunals Within its jurisdiction only So that supervises the jurisdiction Which originally your executive Is now also judicial supporters of those tribunals These, this question is often Often being asked in various sessions That when can we use 226 and 482 In a case where we want to invoke Something in a criminal proceedings You see 226 Is a practice to invoke 226 and 482 The purpose of 482 is basically to describe To describe it as a criminal drift Existence of 482 by itself And not make it a criminal drift And that becomes relevant Because in various musicians NLPA will not lie Supposing 226 for a single judge for 226 and 482 NLPA will not lie, that is concerned 482 is a statutory remedy And so a statutory remedy is concerned Statutory remedy which says Not saying anything in the court or court procedure The High Court will have the power To do whatever 482 says Now what 482 says is basically A statutory incorporation Of what the High Court is Is the court of record and article 2115 2115 means the High Court plenary And that's what their point at the beginning Is the plenary power of the court of record Exercising power under 482 The High Court being a statutory Authority in the CRPC Will have limits to its power To the extent 482 says So of course 482 can be interpreted To in fact expand the amdicots all together So 226, technically speaking From a conceptual point of view Because it is vested by the constitution And is in the court as a High Court Of the court of record Will be plenary Particularly when I deal with the question of contempt Or deal with other issues over there Molding of the relief etc is concerned For that matter Reaching injustice whatever it is found 482 may be co-extensive Because it is vested in the High Court itself Which is the court of record But by its nature being statutory Will to some extent be restrictive Because the ambit of the jurisdiction Cannot possibly be co-extensive Or overlap with the 226 jurisdiction The purpose of 482 is basically To describe the relief as a criminal debt And essentially to reinforce the fact That the remedy which is being sought Inferred from the High Court is concerned That it will not be restricted Chained in any manner whatsoever So I would like to call it on that term Next question is What is the subtle difference Between article 32 and 226 When can one approach 32 And when can one approach under 226 So 32 you can approach Where fundamentally rights are concerned It's concurrent You can move the High Court Or you can move the Supreme Court You have a right to move the Supreme Court Where 32 is fundamentally right itself Supreme Court is duty bound to hear it But Supreme Court today Has a point of beginning Has a treated that particular position This doesn't treat it as a right as such And delegates the parties to the High Court first The way in which the Supreme Court does it There is no pattern There is no discernable pattern to it It's a subject matter of criticism in any case But if you have a fundamental rights in the court The option is with you Whether you move the Supreme Court Or you move the High Court Where fundamental rights is concerned As the two provision themselves say The rights are The right is poor terminus And you can move either poor For that particular purpose So in all probability If you move the Supreme Court The Supreme Court will first tell you To move the High Court For that particular rate But 226 is not a rate of There is no right Unlike 32 Which is the right which you have And it's part of part 3 226 is outside part 3 and not a right And therefore gives an element of discussion The property with it So as the qualitatively It is different from 26 and 30 Friend of ours has asked Can AFT judgment be challenged under 226 Or we need to go something No man So that issue is already before the Supreme Court Denic is decided by an aspect Deepak Gupta judgment also And issue will depend upon essentially Because this is a very involved issue I cannot have any Allow nuances to it You can have a separate session In fact, this will be Because I'll have to examine I'll have to tell you the AFT act As a 13 and 14 AFT act is concerned And 226 is concerned And of course correlated with 323 And other prison also That will require a separate A separate webinar altogether You can have one on that later Thank you, Amanji We couldn't I was just thinking loud within my mind And WhatsApp messages are just flowing That asked Mr. Aman to come for another session You have taken the words from our mouth We are so happy that you have already Seeded to our request Thank you in advance Thank you The annual legislation we struck down to the extent As it admits ambiguity For our language or intention of the legislation No ambiguity Yes, if the legislation is supposed to precisely The question of rule of law is to be known It should be predictable It should be identifiable So if it's ambiguous It is a clearly ultra-virus You know the question of that If it's ambiguous, it will be so But the point is What is ambiguous? That would be an issue If then you have a provision The purpose is You can make sense of that particular provision And to make sense of that particular provision You have to look not only at the provision You have to look at the preamble You have to look at what seems it What follows it And you look at the mischievous event To actually deal with it In that event, if Seeking in totality You can actually control That it has got some meaning or efficacy In that event The legislation will be saved Because there's a presumption What you have to keep in mind is There's a presumption in favor of constitutionality And the onus is on the person Who is alleging that it is unconstitutional To demonstrate it is so And the court will sustain it To the extent it is possible So to do Until it concludes That it is bereft of sense altogether The distinction between article 136 And article 32 Oh, they're completely different Article 136 is an appellate jurisdiction 32 is an original jurisdiction The Supreme Court For the fundamental right 136 is not only fundamental rights All rights In any case Which are affected by a person Who isn't making anybody a tribunal That will be There's no similarity between 32 and 136 And what does your take Which is the better recourse To approach High Court Or Supreme Court for the infringement Of the fundamental rights And why? Ideally the Supreme Court should If 32 has to interpret the constitution As it was then we say it's 32 ideally But the way in which it is practiced Because we see it every day The delegation of a person Claiming fundamental right To the High Court is concerned The appropriate remedy would be Rather to avoid multiplicity Is to go to the High Court And the only downside to that Is that while under 32 The right to move is vested There's no such right in 226 It goes to discussion So my only problem with this is that So on this 226 does not provide as efficacious A remedy for beach fundamental rights As 32 But 32 the way it is interpreted Virtually makes 32 redundant As I said in the beginning itself And it's not 226, it's now replacing 32 itself As the only efficacious energy fundamental right So I did of course to the discussion Of Supreme Court Which had shown that random To actually entertain petitions Under fundamental rights And it's so disposed to But then we are basically In the court's hand And leaving it to the court to decide Which of the matters it will entertain In excess of original constitution 32 And when is the criminal rate Under article 226 maintainable As to whether the right For violation of criminal You see law doesn't make a distinction These are distinction which we have made within it 226 can be both criminal and civil Depends upon the right infringed Which will actually decide So if the right infringed Relative of criminal law That's completely maintainable Criminal rate You see this is a very interesting question again Which can obviously what is Which is another your participant asked This will be 226 and 482 Which is there In 226 because of the way 226 is phrased The number of release that you can get into 26 That is declaratory to leave directions Orders will be far more Than what you get in 482 And as I pointed out 226 is definitely temporary And whether it is A criminal rate is concerned A criminal rate will always lie Where say You want certain guidelines declared You want some damages Against an official Or you want a declaration As to how law has to be administered The better remedy in that case With 226 If you are primarily against the decision Of a magistrate Or you are concerned Against a decision of a session judge Something which is exclusively In the domain of the CRPC alone You don't want to traverse Behind beyond the constraining limits Of the CRPC Then of course 482 So it all depends upon what Relief you are seeking Though the questions are pouring I will just take the last question Then because we have a As we had requested you That we will ask you How you should have to make a mark As a professional How you can Speak like you Without looking at the page How we can just sum up all the issues In this thing We will just take a call on that But the last question Of the session Why do you think that we Do not invoke article 227 To challenge the arbitration Arbitral tribunal award No because the tribunal See how a tribunal is constituted This is the tribunal constituted by agreement That the private agreement was there There is still not a body in the sense Constituted basically an arrangement For the purposes of settlement of private disputes It will be outside It will be outside with 26 and 136 So because you will have to look at The nature of the tribunal It's not every tribunal which will come Tribunal which is Impired to perform Certain kind of public function And vested certain authorities Different and apart from Why it is constituted By simple agreement in the parties Now we are sorry that We will not be taking any other for questions Mr. Aman I would just ask A short tip because majority of us I could say also about me itself As a young lawyer would like to know What a person should do To become a good lawyer Good human being And a good professional to make a mark What are your take on that? Well you have to be severe on yourself Extremely severe on yourself One very confident in your ability But that confidence has been grounded In reality you can't beat this wishful imagination A lot of respect for the system Which is a very solemn occasion Courts deserve respect The process deserves respect Because unless you have respect for what we do We can't really do it with any amount of solemnity Or seriousness which is mandated And because you have to approach it With seriousness and solemnity We have to really give it Some kind of dignity by the effort we put in And when they put in effort It can't be just effort which is mindless It has to be intelligent effort In which we know what we are doing And have a clear idea about how we do it So that we don't either waste our time Or anyone else's time On things which are irrelevant when significant And most importantly have faith Faith in yourself Faith in your capacity And be willing actually to have a growing life In which you will subject yourself To rather meticulous working And not be distracted by things Which can make you digress From the post you've chosen To focus completely on what you want It's all a question of focus It's a question of attention It's a question of energy And it's a question of character You need to have character You need to have energy You have to have focus and attention And only then will be both a good lawyer And a good human being Before I propose a vote of thanks Then we have Mr. Amav Vavika A good friend of ours Who will also propose a vote of thanks In his own way We have a different style of a platform We haven't heard Tansen playing music But at least after you speaking all I felt as if I was listening to Tansen We were just mesmerized the way you took it Mr. Amav Vavika just proposed a vote of thanks On behalf of Beyond Law CLC And I would say we have a group Known as Beyond Law on WhatsApp As well as a page on the Facebook and Instagram Follow us to know the latest updates Amar, over to you Good morning, sir Hi, how are you? Good morning, sir For your very, very lively and encouraging session In fact, it was like we were running marathon at sprint speed And I have been personally benefited by you In that competition matter also We have seen your guidance It is immense Incidentally, in my chamber My 86 years old father Mr. Sonsosh Kumar Agarwal Who has been practicing for 45 years Is also with me And he was also paying Raft attention to a very, very encouraging session For young lawyers It was an eye opener And we are so thankful in Hindi we say It was Gagar Me Sagar Thank you very much sir We look forward for more sessions Thank you Thank you Thank you everyone Thank you