Raghu - All ASSIGNMENT

ASSIGNMENT dated 28.02.
2022
Que. 1 What is the scope of power with the High Court under Article 226 of the
Constitution in directing investigation by any specialized agency? Would the High Court
be restricted by statutory requirements in the exercise of its jurisdiction under Article
226? What is the effect of the exercise of power and transfer of investigation to an
agency other than the state police by the High Court under Article 226 of the
Constitution on the federal character of our Constitution? Discuss with reference to
State of West Bengal vs. Committee for Protection of Democratic Rights, (2010) 3 SCC
571.
ANS.:
The High Court has broad powers to issue orders and writs to any person or authority
under Article 226 of the Indian Constitution. Before a writ or an order may be issued, the
party who is petitioning the court must prove that he has a right that is being violated or
endangered illegally. If the cause of action partly arises within its jurisdiction, the High
Court can issue writs and directives to any Government, authority, or person even if they
are located beyond its jurisdiction. Article 226, empowers the high courts to issue, to
any person or authority, including the government (in appropriate cases), directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto, certiorari, or any of them.
In all other cases where no fundamental right is involved, it has been ruled that the High
Court would not exercise its jurisdiction under Article 226 when an alternative, adequate
and efficacious legal remedy is available and the petitioner has not availed of the same
before coining to the High Court.
Facts:
Attack by mob
The attack took place on 4 January 2001 whereby Abdul Rahaman Mondal and other
members of the political party were attacked by a mob of 50 to 60 people near his
residence. He managed to escape from the havoc and witnessed the incident from a
distance. A written complaint was filed in the Garbeta Police Station on the same day.
Filing of FIR
The first information report (FIR) was filed on 5 January 2001 for the following offences:
(i) Indian Penal Code – sections 148, 149, 448, 436, 364, 302, 201
(ii) The Arms Act, 1959 – sections 25 and 27
(iii) The Explosives Act, 1884 – section 9 (B)
Investigation by CID
On 8 January 2001 the CID was directed to take over the investigation in the case by
the Director General of Police, West Bengal.
Petition under Article 226 of the Constitution

The Committee for Protection of Democratic Rights filed a writ petition under Article 226
of the Constitution in the Calcutta High Court. It was alleged that more than three
months had passed when the incident happened but the State Police took no
substantial step. It was pleaded that the investigation be handed over to the CBI as the
State Police is under the influence of the party in power. The CBI was established under
the Delhi Special Establishment Act, 194. The High Court passed the order in favor of
the appellant and directed that the CBI should take over the investigation.
Que. 2 The RTI Act brought about revolutionary change in the individual's right to
information and has its inbuilt safeguards and limitations. There are also restrictions in
the Official Secrets Act, 1928 and Conduct Rules governing government servants on
release of information held by the government. What is the impact of the Central Board
of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors., (2011) 8 SCC 497 on
the nature of information to be granted under the RTI Act to an individual?
ANS.:
RTI stands For Right to Information... It is a Fundamental Right of Indian citizens to
seek information from govt. offices, departments, ministries, and all the organizations
run by the Govt. of India, or any other organization substantially aided by the, Govt of
India or any other state Govt .
To file an RTI you just need to write an application on a blank plain paper in normal way
addressed to the P.I.O of the concerned office. The Official Secrets Act, 1923 was
established during colonial rule. The OSA was first notified in 1904 during the time of
Lord Curzon. The past provisions of the Act were the more stringent version of the
present provisions and used by the British government to restrict freedom of speech
and expression of journalists. In 1923, the Official Secret Act was repealed and
replaced with the new Official Secrets Act. The new Act was notified and extended to
the provisions of secrecy and confidentiality in working of the government. According to
this Act, aiding and helping any enemy nation where communication of the information
can be in the form of sketch, model, plan, passwords or an official code. This Act has
been furthered by Civil Service Conduct Rules, 1964, which put a sanction on the
sharing of official information or documents in the public domain without authorization.
The Official Secrets Act, 1923 was formulated for the purpose to maintain secrecy and
confidentiality in the administration of the government especially in the matters of
national security and espionage issues. It is generally used by the government and
authorities for refusing to share vital and secret information which comes under the
Right to Information Act, 2005.
Facts
The Respondent in this case was a student who had appeared in the 12th Standard
examinations of 2008. According to the Respondent, he had correctly written most of his
answers and thus he deserved more marks. Hence, he had asked the Board to show
him a copy of his corrected answer sheet. The CBSE denied the Respondent on
grounds that their Bye-Laws prohibited such action, and also that they were exempted
under Section 8(1)(e) of the Right to Information Act, 2005 as they held a “fiduciary”
relationship with the students.
The High Court at Calcutta however, after hearing both sides gave a decision in favor of
the 1st Respondent contending that corrected answer-sheets of a candidate appearing
a public examination conducted by statutory bodies like CBSE being a ‘document,
manuscript record, and opinion’ fell under the ambit of “information” as defined in
section 2(f) of the RTI Act. The Central Board of Secondary Education preferred an
appeal against the decision of the High Court in the Apex Court.
Issues
1. Whether or not an examinee’s right to information under the RTI Act includes a
right to inspect his evaluated answer books in a public examination or taking
certified copies thereof.
2. Whether or not an examining body holds the evaluated answer books “in a
fiduciary relationship” and consequently has no obligation to give inspection of
the evaluated answer books under section 8(1)(e) of RTI Act.
court decision and judgment

The Hon’ble Court after hearing the Contentions of both the sides upheld the order of
the Hon’ble High Court, thus dismissing the appeal by the board. The Court held that
corrected answer-sheets of a candidate appearing a public examination conducted by
statutory bodies like CBSE being a ‘document, manuscript record, and opinion’ fell
under the ambit of “information” as defined in section 2(f) of the RTI Act. It also held that
the Board was not in a “fiduciary” relation with the candidate and thus would not be
exempted under Section 8(1) (e) of Right to Information Act.In the present case,
reliance can be made on the judgment of the Apex Court in State of Uttar Pradesh v.
Raj Narain
QUE.3 The Supreme Court in Rupa Ashok Hurra vs. Ashok Hurra & Anr., (2002) 4 SCC
388 explained the contours of the inherent power of the Court to remedy injustice and
referred to entertain a curative petition. In the 2013 Rules, the Supreme Court has
included Order XLVIII on Curative Petition. Discuss the contours of curative jurisdiction
in Rupa Ashok Hurra vs. Ashok Hurra, (2002) 4 SCC 388 and its interplay with A.R.
Antulay vs. R.S. Nayak & Anr., (1988) 2 SCC 602, if any .
(Repeated)ANS.3)
Curative Petitions are such petitions that have seen a comparatively newer introduction
in the field of law in our country. Such petitions serve as the final and last option for the
parties to get justice as promised and guaranteed to each one of us through The
Constitution of India. However, this concept is relatively new and faced a lot of criticism
by the Bench as being a concept that could shake the trust of the public that the public
at large bestows on them. The parameters within which a curative petition may be
allowed are narrow and therefore, such petitions when allowed are treated to be
rare.The concept was evolved by the Supreme Court of India in the matter of Rupa
Ashok Hurra Vs. Ashok Hurra and Anr., where the issue raised pertained to “whether an
aggrieved person is entitled to any relief against the final judgment/order of the
Supreme Court, after the dismissal of a review petition?.
The conflict arose between the parties on account of matrimonial discord, it was here
that the question regarding the validity of a decree of divorce reached the SC after the
woman withdrew the consent she had given to divorce by mutual consent.
Jurisprudence behind Curative Petition

The objective behind allowing such a petition is only to minimize any abuse of the
processes of law and to cure gross miscarriage and lapses in the system of justice.
It is considered as the last and final option available for redressal of grievances.
It is generally not allowed to happen in an open court and is heard in the chamber of the
judge.
It is a rare phenomenon that the same may be heard in an open court.
The aggrieved parties have the statutory right to appeals or civil reviews or revisions
depending on the nature of dispute and issues which escalate vertically to appellate/
revisional/ reviewing forums.[3] The General jurisprudence of Appeals allows parties to
use their chance in the highest court of the country i.e., The Supreme Court of India by
way of Writs, SLP’s or statutory appeals.
Once a decision is given by the Supreme Court of India the same may be considered
final and binding. The reasoning behind the same lies in the Latin maxim “interest
reipublicae ut sit finis litium” which means in the interest of society and public as a
whole, any litigation must come to an end considering the time taken for each litigation
to reach a final outcome.
Actus Curiae Neminem Gravabit
Keeping in mind that in the Apex Court, there lies no appeal against an order of its own
which means that there is no intra court appeal in the Supreme Court. It is also a
well-settled principle that an act of the court shall prejudice no one; the same is based
on the Latin Maxim “actus curiae neminem gravabit”. Considering that it would be an
extremely strong discretionary power which could only be exercised in rare cases.

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ASSIGNMENT dated 28.02.

Petition under Article 226 of the Constitution

court decision and judgment

Jurisprudence behind Curative Petition

It is a rare phenomenon that the same may be heard in an open court.

Actus Curiae Neminem Gravabit

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