Security for costs in Article 32 petitions cannot burden access to fundamental rights; rule held invalid by majority.

Rule 12 of Order XXXV was held invalid insofar as it authorised security for costs in Article 32 proceedings, because a condition at the threshold that may deter or obstruct enforcement of the fundamental right to move the Court impermissibly burdens that right. The Court held that delegated rule-making under Article 145 and the power to do complete justice under Article 142(1) cannot support a rule inconsistent with Part III. Procedural rules may regulate orderly presentation, but not impose a precondition that substantially impairs access to constitutional remedies. Shah, J. dissented, stating that such an order could be made in a proper case under Article 142 and that the rule was valid.

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Issues: Whether Rule 12 of Order XXXV of the Supreme Court Rules, so far as it authorises an order requiring security for costs in a petition under Article 32 of the Constitution of India, is valid.

Analysis: The right conferred by Article 32 is itself a guaranteed fundamental right, and proceedings under that Article cannot be subjected to conditions that substantially retard or obstruct their exercise. A rule requiring a petitioner to furnish security for the respondent's costs at the threshold imposes a financial burden which may prevent pursuit of the petition and therefore impairs the content of the constitutional right. The power to do complete justice under Article 142(1) cannot be used to make an order inconsistent with the fundamental rights guaranteed by Part III, and delegated rule-making under Article 145 cannot authorise a restriction that the Constitution itself does not permit. Procedural rules that facilitate orderly presentation and disposal are permissible, but a rule for security for costs, operating as a precondition to the continuance of the petition, is not of that character.

Conclusion: Rule 12 was held invalid insofar as it permitted an order for security for costs in Article 32 proceedings, and the impugned security order was set aside.

Dissenting Opinion: Shah, J. held that Article 32 guarantees a right to move the Court by appropriate proceedings, but does not exclude all procedural orders necessary for doing complete justice. In his view, an order for security for costs in a proper case was within the Court's jurisdiction under Article 142 and the rule was only declaratory of that power; accordingly, the rule was not unconstitutional.

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