Dear Assumi Sir,
Pls go through the following judgements of Hon"ble Apex court:
In the judgment reported in AIR 1951 SC Pg.41 (Charanjit Lal Vs. Union of India) and the judgment reported in AIR 1959 SC Pg.725 (K.K.Kochunni Vs. State of Madras) the Supreme Court was considering the power of the court under Article 32 of the Constitution of India to give a declaratory relief. Both the judgments were rendered by two Constitution Benches of the Supreme Court. The Chief Justice of India presided the Constitution Bench in the latter judgment and the said Hon'ble Judge also constituted the coram in the earlier judgment. We extract the relevant portion in paragraph No.45 of the earlier judgment of the Supreme Court:
"As regards the other point, it would appear from the language of Article as of the Constitution that the sole object of the article is the enforcement of fundamental rights guaranteed by the Constitution. A proceeding under this Article cannot really have any affinity to what is known as a declaratory suit."
"Any way, Article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application, of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for."
In the latter case, the power of the court to grant declaratory relief came up for consideration. The Constitutionality of Madras Act 32/55 was challenged as infringing fundamental rights under Article 19(1)(f) and Article 31(1). The point that appears to have been argued in favour of granting a declaratory decree, as noted
therein, is extracted herein "The next argument in support of the objection as to the maintainability of these petitions is thus formulated: The impugned Act is merely a piece of a declaratory legislation and does not contemplate or require any action to be
taken by the State or any other person and, therefore, none of the well known prerogative writs can afford an adequate or appropriate remedy to a person whose fundamental right has been infringed by the mere passing of the Act. If such a person challenges the validity of such an enactment, he must file a regular suit in a court of competent jurisdiction for getting at declaration that the law is void and, therefore, cannot and does not affect his right. In such a suit he can also seek consequential reliefs by way of injunction or the like, but he cannot avail himself of the remedy under Article 32. In the argument is that the proceeding under Article32 cannot be converted into or equated with declaratory suit under section 42 of the Specific Relief Act."
The Hon'ble Judges of the Supreme Court in that casereferred to the earlier judgment of the Supreme Courtreferred to above as well as the judgments reported in AIR 1950 SC 163 (Rashid Ahmed Vs. Municipal Board, Kairana); AIR 1954 SC 440 (Basappa Vs. T. Nagappa); AIR 1954 SC 229 (Ebrahim Vadir Mavat Vs. State of Bombay) and held as hereunder:
"But on a consideration of the authorities it appears to be well established that this Court's powers under Article 32 are wide enough to make even a declaratory order where that is the proper relief to be given to the aggrieved party. away or abridged the petitioners' right under
If, therefore, the Under Article 32 we must, in appropriate cases, exercise our discretion and frame our writ or order to suit the exigencies of this case brought about by the alleged nature of the enactment we are considering."
Therefore it is clear that when an enactment infringes thefundamental rights and a challenge is made to that on that ground, the Hon'ble Supreme Court of India had said that it should not hesitate to grant a declaratory relief under
Article 32 of the Constitution of India. In AIR 1975 SC
1810 (S.G.Films Exchange Vs. Brijnath Singhji) and AIR 1976SC 888 (Vaish Degree College Vs. Lakshmi Narain), theSupreme Court held that the relief of declaration under the provisions of the Specific Relief Act is purelydiscretionary. In the latter judgment, the Supreme Court went on to hold that while exercising it's discretionary
powers, the court must keep in mind the well settledprinciples of justice and fair play and should exercise thediscretion only if the ends of justice require it, for justice is not an object which can be administered invacuum.
It has been held by the Supreme Court in an unreportedjudgment in Katakis Vs. Union of India (W.P.No.54/68 dated 28.10.1968) that no declaration would be given where itwould serve no useful purpose to the petitioner. We thought what will happen if a declaratory relief is given as asked for, assuming for a moment that we have the jurisdiction. It is a settled position in law that nobody can compel the
Parliament to enact a Law. If that is the position, then,assuming that we give a declaration as prayed for namely, the amended provision is not in the discharge of India's obligation under Article 27 of "TRIPS", even then, we fail to see for what use the petitioner can put it. Even if aconsequential relief is not asked for, courts have held,
depending upon the facts available in each case, that a declaratory relief could be granted, provided, it is shown that such a declaratory relief would be a stepping stone to
claim relief at some other stage. Having that in our mind, when we again thought aloud as to what use to which such a declaratory relief, if granted to the petitioner, could be
put to and we find that there is no scope at all to put in use the declaratory relief, if granted, at a later point of time. In other words, the declaratory relief, even if granted, would be only on paper, on the basis of which, the
petitioner cannot claim any further relief in the Indiancourts. Only in this context, we extract hereunder therelevant portion in the unreported judgment of the Supreme
Court in Katakis case referred to above, which was rendered by a Constitution Bench consisting of Hon'ble Judges Sikri, Bachawat, Mitter, Hegde and Grover, JJ:
"It is not even stated that the petitioner did not apply because of the canalisation scheme. The Supreme Court in appropriate circumstances can give a declaration that a particular order or scheme violates the provisions of the constitution but the Supreme Court will not give such a declaration unless it is certain that the declaration will serve some useful purpose to the petitioners. Even if the declaration is give the petitioners may possibly not apply for licence; if they do apply, the conditions of import and export may change drastically by the time the application is filed, or the policy of the Government may change. But if the petitioners had applied for the licence on the basis that the canalisation scheme was invalid, their application would have been processed by the authorities apart from the canalisation scheme but in accordance with law. The Court declined to go into the question of the validity of the canalisation scheme."
Therefore, for the reasons stated above, we find that thepetitioner in each writ petition is not entitled to even thedeclaratory relief.
