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2022 Supreme(SC) 1975
SUPREME COURT OF INDIA
Indira Banerjee, A.S. Bopanna, JJ.
Vivek Krishna - Petitioner
Vs.
Union Of India & Ors. - Respondent
Writ Petition(Civil) No. 1034 of 2021
Decided On : 18-04-2022
Headnote:(A) Constitution of India - Article 32 - Writ petition for imposing restrictions on civil servants contesting elections post-retirement - No fundamental right claimed by petitioner - Mandamus cannot direct legislation or establish eligibility rules for civil servants - Writ petition dismissed. (Paras 3, 8, 22, 26)
(B) Constitutional Powers - Article 32 allows enforcement of fundamental rights - Article 226 gives High Courts wider powers for enforcement - Mandamus cannot be issued for non-legal obligations or policy decisions. (Paras 5, 9, 14)
Facts of the case:
The petitioner sought to impose a 'cooling off period' for civil servants contesting elections immediately post-retirement, arguing it would uphold ethical standards. The Supreme Court noted no fundamental right was violated.
Findings of Court:
The Court determined that the petition did not fulfill the requirements for a writ of Mandamus since no legal obligation existed for the respondents to enact the proposed restriction.
Issues: The main issues addressed were whether the petitioner had a fundamental right to impose restrictions on civil servants and if the court could compel legislative action.
Ratio Decidendi: The Court held that there is no fundamental right to compel the Legislature to enact laws; hence, the Writ Petition was not maintainable under Article 32.
Result: Writ Petition dismissed.
| Table of Content |
|---|
| 1. writ under article 32 for enforcement of rights. (Para 3 , 4 , 5 , 6) |
| 2. no fundamental right claimed; law-making is legislative domain. (Para 8 , 22) |
| 3. mandamus can compel public duty; legislative commands not enforceable. (Para 9 , 10 , 11 , 12 , 13 , 14 , 19 , 20 , 21) |
| 4. petition barred by res judicata; vague allegations unsupported. (Para 18 , 23 , 24 , 25) |
| 5. writ petition dismissed; applications disposed of. (Para 26 , 27) |
ORDER :
The application for permission to argue and appear in-person being IA No. 117315/2021 is allowed.
2. Heard the Petitioner appearing in-person.
3. This Writ Petition has been filed under Article 32 of the Constitution of India seeking a writ in the nature of Mandamus or any other appropriate writ/order/direction on the Respondent No.1, i.e. the Union of India, to impose restrictions to prevent Civil Servants from contesting elections to the Legislature, Central or State, on a political party ticket, immediately after retirement or resignation from service, by imposing a “Cooling off Period”.
4. Under Article 32 of the Constitution of India, appropriate proceedings may be filed in this Court, as of right, for enforcement of any of the fundamental rights conferred by Part III of the Constitution of India.
5. This Court has been conferred with the power under Article 32(2) of the Constitution, to issue directions or orders or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, Certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by Part III of the Constitution.
6. Unlike Article 32 of the Constitution of India which confers powers upon the Supreme Court only to enforce fundamental rights guaranteed by Part III, Article 226 of the Constitution confers wider powers on the High Courts to issue writs for enforcement of the fundamental rights guaranteed in Part III as also for any other purpose.
7. A Writ Petition under Article 32 of the Constitution of India can only be filed in this Court for enforcement of a fundamental right, unlike a Writ Petition in the High Court under Article 226 of the Constitution of India which may lie for enforcement of a fundamental right or any other purpose. The right under Article 32 of the Constitution to approach this Court is itself a fundamental right.
8. In this case, there is no complaint of violation of any fundamental right of the Petitioner or any group of persons represented by the Petitioner. Nobody has the fundamental right to get a mandatory order of this Court directing the appropriate Legislature to enact law or the Executive to frame rules imposing restrictions on the eligibility of civil servant to contest elections. This Writ Petition cannot, therefore, be entertained by this Court.
9. Even otherwise, a writ of Mandamus cannot be issued to direct the Respondents to enact law and/or to frame rules even under the wider powers conferred under Article 226 of the Constitution. A Mandamus lies for enforcement of a fundamental right or a statutory right, or the enforcement of a fundamental duty related to enforcement of a fundamental right or a statutory right. In exceptional cases, a writ may even lie for enforcement of an equitable right. The breach or threat to breach a fundamental, statutory or may be enforceable equitable right, is the sine qua non for issuance of a writ of Mandamus.
10. The right to compel performance of a public duty must be that of the Petitioner. Of course, the rule of infringement of the fundamental right of the Petitioner does not mean that the right must be that of the Petitioner alone and not of anybody else. A public interest litigation may be entertained for enforcement of the fundamental right of any group of people who may not be able to approach this Court.
11. The writ of Mandamus is only granted to compel performance of a public duty or to enforce private rights when duties of a public nature, affe
