Abuse of Article 136 of the Constitution : Supreme Court

Justice Markandey Katju
Supreme Court of India

The Supreme Court in Mathai @ Joby Vs. George has lamented the abuse of Article 136 of the Constitution whereby unscrupulous litigants approach the Supreme Court at the drop of a hat, thereby clogging up the justice delivery system. The Supreme Court has held that there is an urgent need to address the issue and has accordingly placed the matter before a larger bench for framing guidelines for entertaining Special lave petitions under Article 136 of the Constitution. The relevant extracts from this judgment are reproduced hereinbelow;


4. We are prima facie of the opinion that such special leave petitions should not be entertained by this Court. Now-a-days all kinds of special leave petitions are being filed in this Court against every kind of order. For instance, if in a suit the trial court allows an amendment application, the matter is often contested right up to this Court. Similarly, if the delay in filing an application or appeal is condoned by the Trial Court or the appellate court, the matter is fought upto this Court. Consequently, the arrears in this Court are mounting and mounting and this Court has been converted practically into an ordinary appellate Court which, in our opinion, was never the intention of Article 136 of the Constitution. In our opinion, now the time has come when it should be decided by a Constitution Bench of this Court as to in what kind of cases special leave petitions should be entertained under Article 136 of the Constitution. 

5. Article 136, no doubt, states that the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. 

However, it is not mentioned in Article 136 of the Constitution as to in what kind of cases the said discretion should be exercised. 

Hence, some broad guidelines need to be laid down now by a Constitution bench of this Court otherwise this Court will be flooded (and in fact is being flooded) with all kind of special leave petitions even frivolous ones and the arrears in this Court will keep mounting and a time will come when the functioning of this Court will become impossible. It may be mentioned that Article 136, like Article 226, is a discretionary remedy, and this Court is not bound to interfere even if there is an error of law or fact in the impugned order. 

6. This Court in the case of N. Suriyakala Vs. A. Mohandoss and Others (2007) 9 SCC 196 observed as under: 

"In this connection we may clarify the scope of Article 136. Article 136 of the Constitution is not a regular forum of appeal at all. It is a residual provision which enables the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion." 

7. Article 136(1) of the Constitution states: 

"Article 136(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India." 

8. The use of the words "in its discretion" in Article 136 clearly indicates that Article 136 does not confer a right of appeal upon any party but merely vests a discretion in the Supreme Court to interfere in exceptional cases vide M/s. Bengal Chemical & Pharmaceutical Works Ltd. vs. Their Employees AIR 1959 SC 633(635), Kunhayammed & Ors. Vs. State of Kerala & Anr. 2000(6) SCC 359 and State of Bombay Vs. Rusy Mistry AIR 1960 SC 391(395). In Municipal Board, Pratabgarh & Anr. Vs. Mahendra Singh Chawla & Ors. 1982(3) SCC 331 and in Chandra Singh Vs. State of Rajasthan AIR 2003 SC 2889 (vide para 43 & 45), this Court observed that under Article 136 it was not bound to set aside an order even if it was not in conformity with law, since the power under Article 136 was discretionary. 

9. Though the discretionary power vested in the Supreme Court under Article 136 is apparently not subject to any limitation, the Court has itself imposed certain limitations upon its own powers vide Ram Saran Das and Bros. Vs. Commercial Tax Officer, Calcutta & Ors. AIR 1962 SC 1326(1328) and Kunhayammed Vs. State of Kerala 2000(6) SCC 359 (para 13). The Supreme Court has laid down that this power has to be exercised sparingly and in exceptional cases only. Thus, in Pritam Singh Vs. The State AIR 1950 SC 169, this Court observed (vide para 9) as under:- 

"On a careful examination of Art.136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article." 

10. In Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar AIR 2004 SC 2351, this Court observed about Article 136 as under:- 

"It is an extraordinary jurisdiction vested by the Constitution in the Supreme Court with implicit trust and faith, and extraordinary care and caution has to be observed in the exercise of this jurisdiction. Article 136 does not confer a right of appeal on a party but vests a vast discretion in the Supreme Court meant to be exercised on the considerations of justice, call of duty and eradicating injustice." 

11 In Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai AIR 2004 SC 1815 (para 33), this Court observed as under:- 

"The discretionary power of the Supreme Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist." 

In the same decision this Court also observed as under:- 

"It is well settled that Article 136 of the Constitution does not confer a right to appeal on any party; it confers a discretionary power on the Supreme Court to interfere in suitable cases. Article 136 cannot be read as conferring a right on anyone to prefer an appeal to this Court; it only confers a right on a party to file an application seeking leave to appeal and a discretion on the Court to grant or not to grant such leave in its wisdom. When no law confers a statutory right to appeal on a party, Article 136 cannot be called in aid to spell out such a right. The Supreme Court would not under Article 136 constitute itself into a tribunal or court just settling disputes and reduce itself to a mere court of error. The power under Article 136 is an extraordinary power to be exercised in rare and exceptional cases and on well-known principles." 

12. In Narpat Singh Vs. Jaipur Development Authority (2002) 4 SCC 666, this Court observed as under:- 

"The exercise of jurisdiction conferred by Art.136 of the Constitution on the Supreme Court is discretionary. It does not confer a right to appeal on a party to litigation; it only confers a discretionary power of widest amplitude on the Supreme Court to be exercised for satisfying the demands of justice. On one hand, it is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situations or situations occasioning gross failure of justice; on the other hand, it is an overriding power whereunder the Court may generously step in to impart justice and remedy injustice." 

13. In Ashok Nagar Welfare Association Vs. R.K. Sharma AIR 2002 SC 335, this Court observed that even in cases where special leave is granted, the discretionary power vested in the Court continues to remain with the Court even at the stage when the appeal comes up for hearing. 

14. Now-a-days it has become a practice of filing SLPs against all kinds of orders of the High Court or other authorities without realizing the scope of Article 136. Hence we feel it incumbent on us to reiterate that Article 136 was never meant to be an ordinary forum of appeal at all like Section 96 or even Section 100 CPC. Under the constitutional scheme, ordinarily the last court in the country in ordinary cases was meant to be the High Court. The Supreme Court as the Apex Court in the country was meant to deal with important issues like constitutional questions, questions of law of general importance or where grave injustice had been done. If the Supreme Court entertains all and sundry kinds of cases it will soon be flooded with a huge amount of backlog and will not be able to deal with important questions relating to the Constitution or the law or where grave injustice has been done, for which it was really meant under the Constitutional Scheme. After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute. 

15. Mr. K.K. Venugopal, Senior Advocate and a very respected lawyer of this Court in his R.K. Jain Memorial Lecture delivered on 30.01.2010 has pointed out that an alarming state of affairs has developed in this Court because this Court has gradually converted itself into a mere Court of Appeal which has sought to correct every error which it finds in the judgments of the High Courts of the country as well as the vast number of tribunals. Mr. Venugopal has further observed that this Court has strayed from its original character as a Constitutional Court and the Apex Court of the country. He further observed that if the Apex Court seeks to deal with all kinds of cases, it necessarily has to accumulate vast arrears over a period of time which it will be impossible to clear in any foreseeable future. According to him, this is a self-inflicted injury, which is the cause of the malaise which has gradually eroded the confidence of the litigants in the Apex Court of the country, mainly because of its failure to hear and dispose of cases within a reasonable period of time. He has further observed that it is a great tragedy to find that cases which have been listed for hearing years back are yet to be heard. He has further observed as under: 

"We have, however, to sympathize with the judges. They are struggling with an unbearable burden. The judges spend late nights trying to read briefs for a Monday or a Friday. When each of the 13 Divisions or Benches have to dispose off about 60 cases in a day, the functioning of the Supreme Court of India is a far cry from what should be desiderata for disposal of cases in a calm and detached atmosphere. The Judges rarely have the leisure to ponder over the arguments addressed to the court and finally to deliver a path-breaking, outstanding and classic judgment. All this is impossible of attainment to a Court oppressed by the burden of a huge backlog of cases. The constant pressure by counsel and the clients for an early date of hearing and a need to adjourn final hearings which are listed, perforce, on a miscellaneous day i.e. Monday or a Friday, where the Court finds that it has no time to deal with those cases, not only puts a strain on the Court, but also a huge financial burden on the litigant. I wonder what a lawyer practising in 1950 would feel if he were today to enter the Supreme Court premises on a Monday or a Friday. He would be appalled at the huge crowd of lawyers and clients thronging the corridors, where one finds it extremely difficult to push one's way through the crowd to reach the Court hall. When he enters the Court hall he finds an equally heavy crowd of lawyers blocking his way. I do not think that any of the senior counsel practicing in the Supreme Court, during the first 3-4 decades of the existence of the Court, would be able to relate to the manner in which we as counsel argue cases today. In matters involving very heavy stakes, 4-5 Senior Advocates should be briefed on either side, all of whom would be standing up at the same time and addressing the court, sometimes at the highest pitch possible. All these are aberrations in the functioning of an Apex Court of any country." 

16. Mr. Venugopal has pointed out that in the year 1997 there were only 19,000 pending cases in this Court but now, there are over 55,000 pending cases and in a few years time the pendency will cross one lakh cases. In 2009 almost 70,000 cases were filed in this Court of which an overwhelming number were Special Leave Petitions under Article 136. At present all these cases have to be heard orally, whereas the U.S. Supreme Court hears only about 100 to 120 cases every year and the Canadian Supreme Court hears only 60 cases per year. 

17. In Bihar Legal Support Society Vs. Chief of Justice of India and Anr. (1986) 4 SCC 767 (vide para 3) a Constitution Bench of this Court observed as under:- 

"It may, however, be pointed out that this Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the magistrates. It was created for the purpose of laying down the law for the entire country ...............It is not every case where the apex court finds that some injustice has been done that it would grant special leave and interfere. That would be converting the apex court into a regular court of appeal and moreover, by so doing, the apex court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account of the tremendous backlog of cases which is bound to accumulate. We must realize that in the vast majority of cases the High Courts must become final even if they are wrong". 

18. In this connection Paul Freund has set out the opinion of Mr. Justice Brandeis', the celebrated Judge of the U.S. Supreme Court in the following words: 

"... he was a firm believer in limiting the jurisdiction of the Supreme Court on every front as he would not be seduced by the Quixotic temptation to right every fancied wrong which was paraded before him. ...... Husbanding his time and energies as if the next day were to be his last, he steeled himself, like a scientist in the service of man, against the enervating distraction of the countless tragedies he was not meant to relieve. His concern for jurisdictional and procedural limits reflected, on the technical level, an essentially stoic philosophy. For like Epictetus, he recognized 'the impropriety of being emotionally affected by what is not under one's control'. 

The only way found practicable or acceptable in this country (U.S.A.) for keeping the volume of cases within the capacity of a court of last resort is to allow the intermediate courts of appeal finally to settle all cases that are of consequence only to parties. This reserves to the court of last resort only questions on which lower courts are in conflict or those of general importance to the law." 

19. Justice K.K. Mathew, an eminent Judge of this Court, in an article published in (1982) 3 SCC (Jour) 1, has referred to the opinion of Mr. Justice Frankfurter, the renowned Judge of the U.S. Supreme Court as follows : 

"The function of the Supreme Court, according to Justice Frankfurter, was to expound and stabilize principles of law, to pass upon constitutional and other important questions of law for the public benefit and to preserve uniformity of decision among the intermediate courts of appeal. The time and attention and the energy of the court should be devoted to matters of large public concern and they should not be consumed by matters of less concern, without special general interest, merely because the litigant wants to have the court of last resort pass upon his right. 

The function of the Supreme Court was conceived to be, not to remedying of a particular litigant's wrong, but the consideration of cases whose decision involved principles, the application of which were of wide public or governmental interest and which ought to be authoritatively declared by the final court. Without adequate study, reflection and discussion on the part of judges, there could not be that fruitful interchange of minds which was indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions and therefore Justice Frankfurter considered it imperative that the docket of the court be kept down so that its volume did not preclude wise adjudication. He was of the view that any case which did not rise to the significance of inescapability in meeting the responsibilities vested in the Supreme Court had to be rigorously excluded from consideration". 

20. According to Justice Mathew, the Supreme Court, to remain effective, must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved. It is Justice Mathew's opinion that- 

"To say that no litigant should be turned out of the Supreme Court so long as he has a grievance may be good populistic propaganda but the consequence of accepting such a demand would surely defeat the great purpose for which the Court was established under our constitutional system. It is high time we recognize the need for the Supreme Court to entertain under Article 136 only those cases which measure up to the significance of the national or public importance. The effort, then, must therefore be to voluntarily cut the coat of jurisdiction according to the cloth of importance of the question and not to expand the same with a view to satisfy every litigant who has the means to pursue his cause." 

21. Mr. Venugopal has suggested the following categories of cases which alone should be entertained under Article 136 of the Constitution. 

(i) All matters involving substantial questions of law relating to the interpretation of the Constitution of India; 

(ii) All matters of national or public importance; 


(iii) Validity of laws, Central and State; 

(iv) After Kesavananda Bharati, (1973) 4 SCC 217, the judicial review of Constitutional Amendments; and 

(v) To settle differences of opinion of important issues of law between High Courts. 

22. We are of the opinion that two additional categories of cases can be added to the above list, namely (i) where the Court is satisfied that there has been a grave miscarriage of justice and (ii) where a fundamental right of a person has prima facie been violated. However, it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised. 

23. In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down some broad guidelines as to when the discretion under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained. If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then this Court after some time will collapse under its own burden. 

24. It may be mentioned that in Pritam Singh Vs. The State AIR 1950 S.C. 169 a Constitution Bench of this Court observed (vide para 9) that "a more or less uniform standard should be adopted in granting Special Leave". Unfortunately, despite this observation no such uniform standard has been laid down by this Court, with the result that grant of Special Leave has become, as Mr. Setalvad pointed out in his book ` My Life', a gamble. This is not a desirable state of affairs as there should be some uniformity in the approach of the different benches of this Court. Though Article 136 no doubt confers a discretion on the Court, judicial discretion, as Lord Mansfield stated in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 "means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful" 

25. The Apex Court lays down the law for the whole country and it should have more time to deliberate upon the cases it hears before rendering judgment as Mr. Justice Frankfurter observed. However, sadly the position today is that it is under such pressure because of the immense volume of cases in the Court that Judges do not get sufficient time to deliberate over the cases, which they deserve, and this is bound to affect the quality of our judgments. 

26. Let notice issue to the respondents. Issue notice also to the Supreme Court Bar Association, Bar Council of India and the Supreme Court-Advocates-on-Record Association. 

27. Since the matter involves interpretation of Article 136 of the Constitution, we feel that it should be decided by a Constitution Bench in view of Article 145(3) of the Constitution. 

Let the papers of this case be laid before Hon'ble the Chief Justice of India for constitution of an appropriate Bench, to decide which kinds of cases should be entertained under Article 136, and/or for laying down some broad guidelines in this connection.

Wrongful Arrest and Compensation to Victims : The Law

Justice D.K. Jain
Supreme Court of India

The Supreme Court in Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra has examined the law relating to issuance of non-bailable warrants, arrests and compensation for wrongful imprisonment which results in violation of fundamental rights guaranteed by our Constitution. The relevant extracts from the judgment are reproduced hereinbelow;

9. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it "on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice." Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non- bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter- alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. (Also See: State of U.P. Vs. Poosu & Anr. (1976) 3 SCC 1 ). 

10. In Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. (2007) 12 SCC 1 7 , a Bench of three learned Judges of this Court cautioned that before issuing non-bailable warrants, the Courts should strike a balancebetween societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the Court should bear in mind while issuing non-bailable warrant, it was observed: "53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: 

it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately. 

54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. 

55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants." 

11. We deferentially concur with these directions, and emphasize that since these directions flow from the right to life and personal liberty, enshrined in Articles 21 and 22(1) of our Constitution, they need to be strictly complied with. However, we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioral patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court, it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid, it is for the court concerned to assess the situation and exercise discretion judiciously, dispassionately and without prejudice. 

12. Viewed in this perspective, we regret to note that in the present case, having regard to nature of the complaint against the appellant and his stature in the community and the fact that admittedly the appellant was regularly attending the court proceedings, it was not a fit case where non-bailable warrant should have been issued by the Additional Chief Metropolitan Magistrate. In our opinion, the attendance of the appellant could have been secured by issuing summons or at best by a bailable warrant. We are, therefore, in complete agreement with the High Court that in the facts and circumstances of the case, issuance of non-bailable warrant was manifestly unjustified. 

13. We shall now advert to a more anxious point, viz. the conduct of respondent No.2, at whose direction the warrant was executed. It needs no emphasis that any form of degrading treatment would fall within the inhibition of Article 21 of the Constitution. In the present case, respondent No.2 was aware that the non-bailable warrant issued on account of failure on the part of the appellant to attend the court proceedings on 7th August 2002, was returnable only on 31st October 2002. Undoubtedly, respondent No.2 was duty bound to execute the warrant as expeditiously as possible but we are unable to fathom any justifiable reason for the urgency in executing the warrant on a National holiday, more so when it had been issued more than a week ago and even the complaint against the appellant was in relation to the offence punishable under Section 324 of the IPC. The complaint related to the year 2000. At the relevant time, the offence punishable under Section 324 of the IPC was a bailable offence. It is apparent from the record that the warrant was executed at the behest of the complainant in order to denigrate and humiliate the appellant at a public place, in public view, during the course of Independence day celebrations at Radio Club. We are convinced that respondent No.2, in collusion with the complainant, played with the personal liberty of the appellant in a high handed manner. The unfortunate sequel of an unmindful action on the part of respondent No.2 was that the appellant, a practicing Advocate, with no criminal history, remained in police custody for quite some time without any justification whatsoever and suffered unwarranted humiliation and degradation in front of his fellow members of the Club. Regrettably, he lost his freedom though for a short while, on the Independence day. Here also, we agree with the High Court that respondent No.2 did not perform his duty in the manner expected of a responsible police officer. As a matter of fact, being the guardian of the liberty of a person, a heavy responsibility devolved on him to ensure that his office was not misused by the complainant to settle personal scores. The so-called urgency or promptness in execution led to undesirable interference with the liberty of the appellant. Such a conduct cannot receive a judicial imprimatur. 

14. That takes us to the core issue, namely, whether the appellant is entitled to any compensation for the humiliation and harassment suffered by him on account of the wrong perpetrated by respondent No.2, in addition to what has been awarded by the High Court. As aforesaid, the grievance of the appellant is that imposition of a fine of `2,000/- on respondent No.2 is grossly inadequate. His prayer is that in addition to an adequate amount of compensation, respondent No.2 should also be prosecuted and proceeded against departmentally for his wrongful confinement. 

15.It is trite principle of law that in matters involving infringement or deprivation of a fundamental right; abuse of process of law, harassment etc., the courts have ample power to award adequate compensation to an aggrieved person not only to remedy the wrong done to him but also to serve as a deterrent for the wrong doer. 

16. In Rudul Sah Vs. State of Bihar & Anr. (1983) 4 SCC 141, Y.V. Chandrachud, CJ, speaking for a Bench of three learned Judges of this Court had observed thus: 

"One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt." 

17. In Bhim Singh, MLA Vs. State of J & K & Ors. (1985) 4 SCC 677 , holding illegal detention in police custody of the petitioner Bhim Singh to be violative of his rights under Articles 21 and 22(2) of the Constitution, this Court, in exercise of its power to award compensation under Article 32, directed the State to pay monetary compensation to the petitioner. Relying on Rudal Sah (supra), O. Chinnappa Reddy, J. echoed the following views: 

"When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation". 

18. In Nilabati Behera (Smt) Alias Lalita Behera Vs. State of Orissa & Ors. (1993) 2 SCC 746 , clearing the doubt and indicating the precise nature of the constitutional remedy under Articles 32 and 226 of the Constitution to award compensation for contravention of fundamental rights, which had arisen because of the observation that "the petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial" in Rudul Sah (supra), J.S. Verma, J. (as His Lordship then was) stated as under: 

"It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights." 

In the same decision, in his concurring judgment, Dr. A.S. Anand, J. (as His Lordship then was), explaining the scope and purpose of public law proceedings and private law proceedings stated as under: 

"The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law." 

19. The power and jurisdiction of this Court and the High Courts to grant monetary compensation in exercise of its jurisdiction respectively under Articles 32 and 226 of the Constitution of India to a victim whose fundamental rights under Article 21 of the Constitution are violated are thus, well- established. However, the question now is whether on facts in hand, the appellant is entitled to monetary compensation in addition to what has already been awarded to him by the High Court. Having considered the case in the light of the fact- situation stated above, we are of the opinion that the appellant does not deserve further monetary compensation. 

20. It is true that the appellant not only suffered humiliation in the public gathering, and remained in judicial custody for some time but we feel that for what he had undergone on 15th August 2002, some blame lies at his door as well. Being a practicing Advocate himself, the appellant was fully conversant with the court procedure and, therefore, should have procured a copy of memo/order dated 12th August 2002, whereby the non-bailable warrant was cancelled by the court. As noticed above, admittedly, the appellant applied and obtained a copy of such order only on 16th August 2002. Though the conduct of respondent No.2 in arresting the appellant, ignoring his plea that the non-bailable warrant issued by the court in a bailable offence had been cancelled, deserves to be deplored, yet, strictly speaking the action of respondent No.2 in detaining the appellant on the strength of the warrant in his possession, perhaps motivated, cannot be said to be per se without the authority of law. In that view of the matter, in our opinion, no other action against respondent No.2 is warranted. He has been sufficiently reprimanded. 

21.The last issue raised that remains to be considered is whether the Courts can at all issue a warrant, called a "non-bailable" warrant because no such terminology is found in the Code as well as in Form 2 of the Second Schedule to the Code. It is true that neither Section 70 nor Section 71, appearing in Chapter VI of the Code, enumerating the processes to compel appearance, as also Form 2 uses the expression like "non-bailable". Section 70 merely speaks of form of warrant of arrest, and ordains that it will remain in force until it is cancelled. Similarly Section 71 talks of discretionary power of Court to specify about the security to be taken in case the person is to be released on his arrest pursuant to the execution of the warrant issued under Section 70 of the Code. Sub-section (2) of Section 71 of the Code specifies the endorsements which can be made on a warrant. Nevertheless, we feel that the endorsement of the expression "non-bailable" on a warrant is to facilitate the executing authority as well as the person against whom the warrant is sought to be executed to make them aware as to the nature of the warrant that has been issued. In our view, merely because Form No.2, issued under Section 476 of the Code, and set forth in the Second schedule, nowhere uses the expression bailable or non-bailable warrant, that does not prohibit the Courts from using the said word or expression while issuing the warrant or even to make endorsement to that effect on the warrant so issued. Any endorsement/variation, which is made on such warrant for the benefit of the person against whom the warrant is issued or the persons who are required to execute the warrant, would not render the warrant to be bad in law. What is material is that there is a power vested in the Court to issue a warrant and that power is to be exercised judiciously depending upon the facts and circumstances of each case. Being so, merely because the warrant uses the expression like "non- bailable" and that such terminology is not to be found in either Section 70 or Section 71 of the Code that by itself cannot render the warrant bad in law. The argument is devoid of substance and is rejected accordingly. 

22. In view of the aforegoing discussion, no ground is made out warranting our interference with the impugned judgment of the High Court. We confirm the judgment and dismiss the appeal accordingly, but with no order as to costs. 

23. However, before parting with the judgment, we feel that in order to prevent such a paradoxical situation, we are faced with in the instant case, and to check or obviate the possibility of misuse of an arrest warrant, in addition to the statutory and constitutional requirements to which reference has been made above, it would be appropriate to issue the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts:- 

(a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No.2 for issuing warrant of arrest and each such form is duly accounted for; 

(b) Before authenticating, the court must ensure that complete particulars of the case are mentioned on the warrant; 

(c) The presiding Judge of the court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon; 

(d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein; 

(e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process; 

(f) No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned court shall periodically check/monitor the same to confirm that every such process is always returned to the court with due report and placed on the record of the concerned case; 

(g) A register similar to the one in clause 

(e) supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution; 

(h) Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long; 

(i) On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer In-charge of the concerned agency; 

(j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse; 

(k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and 

(l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused. 

Format of the Register S. The Case title and Name & The officer/ Date of Date Date of Due Report The action Remarks No. number particulars particulars of person to judicial of cancellat date of returned taken as printed on the person whom order issue ion, if return on reported the form against whom directed directing any used warrant of Arrest arrest is Warrant to issued be issued (accused/ witness) 

24. We expect and hope that all the High Courts will issue appropriate directions in this behalf to the Subordinate Courts, which shall endeavour to put into practice the aforesaid directions at the earliest, preferably within six months from today.

2 More Elevations to the Supreme Court

Various media reports have confirmed that the names of Delhi High Court Chief Justice Dipak Misra and Kerala High Court Chief Justice Jasti Chalameswar have been recommended by the Collegium for elevation to the Supreme Court. Sources have revealed that the file relating to their elevation to the Supreme Court have already been sent to the Union law ministry, from where it will be sent to the President of India for her approval.

It is reported that the President would sign the warrants for elevation in the next few weeks.

Justice Misra (pictured) was born on 3rd October, 1953. He enrolled as an Advocate on 14th February, 1977 and Practiced in Constitutional, Civil, Criminal, Revenue, Service and Sales Tax matters in the Orissa High Court and the Service Tribunal. He was appointed as an Additional Judge of the Orissa High Court on 17th January, 1996 and transferred to the Madhya Pradesh High Court on 3rd March, 1997. He became permanent Judge on 19th December, 1997.

Justice Misra assumed charge of the office of Chief Justice, Patna High Court on 23rd December 2009 and charge of the office of the Chief Justice of Delhi High Court on 24th May, 2010.

Justice Chelameswar was born on June 23, 1953 at Pedda Muttevi, Movya Mandal in Krishna District of Andhra Pradesh, India. His father was late Jasti Lakshminarayana, a lawyer at Machilipatnam, Krishna District. Had his earlier education up to Class XII at Hindu High School at Machilipatnam in Krishna District and Graduated in Science (Physics) at Madras Loyola College. Graduated in Law from Andhra University, Visakhapatnam, in 1976. Enrolled as an Advocate in High Court of Andhra Pradesh at Hyderabad in the year 1976 and practised under a senior Advocate Dr.B.Bhimaraju, former Public Prosecutor, High Court of A.P., Sri.P.Rajarao, Ex. Government Pleader, High Court of A.P. and Sri.K.Srinivasa Murthy, a leading Advocate in High Court of A.P. Specialized in Constitutional Law, Election Laws, Central Excise, Customs, Income Tax and Criminal Law. Appointed as Standing Counsel of A.P.Lokayukta in 1985 and 1986. Worked as Government Pleader for Home Affairs in High Court in the years 1988 and 1989. Designated as Senior Counsel in the year 1995. Appointed as Additional Advocate General on 13.10.1995.

Elevated as Additional Judge of High Court of Andhra Pradesh on 23.6.1997 and as Judge w.e.f. 17.5.1999. Elevated as Chief Justice of Gauhati High Court on 3.5.2007. Transferred to Kerala High Court and assumed charge as Chief Justice of Kerala on 17.03.2010.

Justice Vikramajit Sen Becomes Chief Justice of Karnataka High Court

Justice Vikramajit Sen
Chief Justice
Karnataka High Court

Justice Vikramajit Sen has been appointed as the Chief Justice of the Karnataka High Court thus replacing Justice Khehar, who in turn has been elevated as a judge of the Supreme Court of India.

Justice Sen is likely to be sworn in as the new Chief Justice on 12th September, 2011.

Here is a short bio of Justice Sen:

Born on 31st December, 1950. Attended St. Xavier’s School, Delhi and passed the ISC in the First Division. Graduated from St. Stephen’s College with Honours in History. Attained First Division in LL.B from Faculty of Laws, Delhi University, and was Awarded the First Prize in Moot Court and Silver Medal in Labour Laws. Captained Faculty Teams in Basketball and Tennis and was chosen Sports Secretary. Practiced in all the Courts in Delhi, although primarily in the High Court of Delhi. Handled civil, arbitration and commercial disputes. Had a special interest and consultancy on minority rights. 

A Core Member of the Inter Denomination Committee for recommendations for Amendments to the Personal Laws relating to Christians in India. Member of Governing Body of several reputed Colleges and School throughout India. Appointed as an Additional Judge of the Delhi High Court on 7th July, 1999. Appointed permanent Judge on 30.10.2000. Member of the Malta Judicial Conference under the auspices of the Hague Convention. As a Member of the Planning Committee of the Common Law – Commonwealth Conference, 2009 attended the Conference in Hyderabad in February 2011. Member of International Association of Family Judges. Member of International Judicial Conference on Cross-Border Family Relocation, 2010 Washington D.C.. Co-Moderator in the Conference on Mediation organized in association with Hong Kong Mediation Council and Hong Kong International Arbitration Centre. First and Continuing Chairperson of Delhi High Court Arbitration Centre. In this capacity was involved in its establishment as well as its continuing operation till date. Member, National Legal Services Authority and Executive Chairman, Delhi Legal Services Authority. Unlawful Activities (Prevention) Tribunal declaring Deendar Anjuman as an unlawful Association in the year 2003. Unlawful Activities (Prevention) Tribunal declaring Liberation Tigers of Tamil Ealam (LTTE) as an unlawful Association in the year 2008 and 2010.