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ITEM NO.3 COURT NO.8 SECTION PIL-W

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Writ Petition(Civil) No. 1034/2021

VIVEK KRISHNA Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

(FOR ADMISSION and IA No.117314/2021-EXEMPTION FROM FILING

AFFIDAVIT and IA No.117315/2021-PERMISSION TO APPEAR AND ARGUE IN

PERSON )

Date : 18-04-2022 This petition was called on for hearing today.

CORAM : HON'BLE MS. JUSTICE INDIRA BANERJEE

HON'BLE MR. JUSTICE A.S. BOPANNA

For Petitioner(s) Petitioner-in-person

For Respondent(s)

UPON hearing the counsel the Court made the following

O R D E R

The application for permission to argue and appear in-person

being IA No. 117315/2021 is allowed.

Heard the Petitioner appearing in-person.

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”.

Digitally signed by

GULSHAN KUMAR

ARORA

Date: 2022.04.26

17:00:00 IST

Reason:

Signature Not Verified

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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.

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.

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.

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.

In this case, there is no complaint of violation of any

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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.

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.

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