CHANAKYA

NATIONAL

LAW

UNIVERSITY

PROJECT WORK ON

Writ and Res-Judicata

SUBMITTED TO: Prof. C.N. Swamy

(Faculty of Constitutional Law-II)

SUBMITTED BY: Krishna Chaitanya

Roll No.: 935
6th Semester

ACKNOWLEDGEMENT

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Writing a project is one of the most significant academic challenges I have ever faced.
Though this project has been presented by me but there are many people who remained in
veil, who gave their support and helped me to complete this project.
First of all I am very grateful to my subject teacher Prof. C.N. Swamy without the kind
support of whom and help; the completion of the project was a Herculean task for me.
He gave his valuable time from his busy schedule to help me to complete this project
and suggested me from where and how to collect data.
I am very thankful to the librarian who provided me several books on the topic which
proved beneficial in completing this project.
I acknowledge my friends who gave their valuable and meticulous advice which proved
to be very useful and could not be ignored in writing this project. I want to convey a most
sincere thanks to my seniors for helping throughout the project.

********************

AIM & OBJECT OF STUDY:

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The aim and object of the study are the following:

1. To study about the writ jurisdiction of the High Court and the Supreme Court under the
Indian Constitution.
2. To understand the need for the applicability of the principle of Res-judicata with
respect to the writ petitions.

HYPOTHESIS:
The hypothesis of the researcher is that the principle of application of res judicata is not
applicable in Writ of Habeas Corpus.

RESEARCH METHODOLOGY:
In this project doctrinal method of research will be used. Doctrinal method refers to
library research, research done upon some texts, writings and documents. It also includes
the research done upon the internet and other resources.

TABLE OF CONTENTS
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1. Introduction
.................................................................................................................05
2. Doctrine of Res-Judicata
.................................................................................................................09
3. Res-Judicata in Writ-Petition
.................................................................................................................15
4. Applicability of Constructive Res-Judicata in Writ Petition
.................................................................................................................17
5. Concluding Remarks
.................................................................................................................19
Bibliography
.................................................................................................................22

INTRODUCTION
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Any provision in any Constitution for Fundamental Rights is meaningless unless there are
adequate safeguards to ensure enforcement of such provisions. Since the reality of such
rights is tested only through the judiciary, the safeguards assume even more importance.
In addition, enforcement also depends upon the degree of independence of the Judiciary
and the availability of relevant instruments with the executive authority. Indian
Constitution, like most of Western Constitutions, lays down certain provisions to ensure
the enforcement of Fundamental Rights. These are as under: (a) The Fundamental Rights
provided in the Indian Constitution are guaranteed against any executive and legislative
actions. Any executive or legislative action, which infringes upon the Fundamental
Rights of any person or any group of persons, can be declared as void by the Courts
under Article 13 of the Constitution.1
(b) In addition, the Judiciary has the power to issue the prerogative writs. These are the
extraordinary remedies provided to the citizens to get their rights enforced against any
authority in the State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari
and Quo warranto. Both, High Courts as well as the Supreme Court may issue the writs.
(c) The Fundamental Rights provided to the citizens by the Constitution cannot be
suspended by the State, except during the period of emergency, as laid down in Article
359 of the Constitution.
A Fundamental Right may also be enforced by way of normal legal procedures including
a declaratory suit or by way of defence to legal proceedings. However, Article 32 is
referred to as the "Constitutional Remedy" for enforcement of Fundamental Rights. This
provision itself has been included in the Fundamental Rights and hence it cannot be
denied to any person. Dr. B.R.Ambedkar described Article 32 as the most important one,
without which the Constitution would be reduced to nullity. It is also referred to as the
heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the
1 http://www.legalservicesindia.com/article/article/constitutional-philosophy-of-writs-a-detailed-analysis1885-1.html last accessed on 26/04/2016
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Supreme Court has been made the protector and guarantor of these Rights. An application
made under Article 32 of the Constitution before the Supreme Court, cannot be refused
on technical grounds. In addition to the prescribed five types of writs, the Supreme Court
may pass any other appropriate order. Moreover, only the questions pertaining to the
Fundamental Rights can be determined in proceedings against Art 32.
The concept of issuance of writ has achieved its significance as it is one such
enforcement device leading to achieving the benefit of fundamental rights in their literal
sense. A writ is defined as a kind of special order sealed to any authority, government or
any sovereign body in furtherance of abstinence or execution of a specified act. Our
constitution catalogs five writs which are prerogative writs, meaning they can be
considered as a privilege or right exclusively for a specific category or class.
Types of Writs and their meaning These writs have been dealt with in the Article 32 and Article 226 of our constitution
mainly because there are two ways of approaching the court of law though writs i.e.
Supreme Court and High Court respectively. The writs available are namely Habeas
Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.
1. Writ of Habeas Corpus This writ (meaning, you may have the body) has been given
the status of the most important writ out of all the five as it deals majorly on the liberty
and justice of an individual. A writ of habeas corpus is in the nature of an order calling
upon the person who has detained another, to produce the latter before the Court in order
to let the Court know on what ground she/ he has been confined and to set him/her free if
there is no legal justification for the imprisonment.2
The words habeas corpus literally mean you may have the body. The writ may be
addressed to any person whatever, an official or a private person who has another person
2 Prof. M P Jain, Indian Constitutional Law, 5th Edition, 2009, Lexis Nexis Butterworths

Wadhwa, Nagpur, pp.568

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in his custody and disobedience to the writ is met with punishment for the contempt of
the court.
The different purposes for which the writ of habeas corpus can be issued are: (a) for the
enforcement of fundamental rights, (b) to decide whether the order of imprisonment or
detention is ultra vires the statute that authorises the imprisonment or detention.
The writ of habeas corpus is, however, not issued in the following cases:
(i) Where the person against whom the writ is issued or the person who is detained is not
within the jurisdiction of the Court, (ii) To secure the release of a person who has been
imprisoned by a court of law on a criminal charge, (iii) To interfere with a proceeding for
contempt by a court of record or by the Parliament.
2. Writ of Mandamus - This writ (meaning, a command or an order) focuses upon
ordering any corporation, authority or any other person to perform or execute any public
duty by the Constitution, a statute or common law. Hence, its a kind of compelling
remedy for carrying out the duties which one is supposed to do but is declining.
Mandamus literally means we command. It commands the person, to whom it is
addressed to perform some public or quasi-public legal duty which she/he has refused to
perform and the performance of which cannot be enforced by any other adequate legal
remedy.3
It is, therefore, clear that mandamus will not be issued unless the applicant has a legal
right for the performance of that particular legal duty of a public nature and the party
against whom the writ is sought, is bound to perform that duty.
The purposes for which a writ may be issued are as:
(a) For the enforcement of fundamental rights. Whenever a public officer or a
Government has acted in a manner violating the Fundamental Right of a person, the court
3 Prof. M P Jain, Indian Constitutional Law, 5th Edition, 2009, Lexis Nexis Butterworths

Wadhwa, Nagpur.
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would issue a writ of mandamus restraining the public officer or the Government from
enforcing that order or acting against the person whose fundamental right has been
infringed,
(b) Mandamus can be issued by a High Court for various other purposes, e.g.,
(i) To enforce the performance of a statutory duty where in a public officer has got a
power conferred by the Constitution or a statute. The Court may issue a mandamus
directing him/her to exercise the power in case she/he refuses to do so.
(ii) To compel a person to perform his public duty where the duty is imposed by the
Constitution or a statute or a statutory instrument,
(iii) To compel a court or judicial tribunal to exercise its jurisdiction when it has refused
to exercise it.
(iv) To direct a public official or the Government, not to enforce a law that is
unconstitutional.
3. Writ of Prohibition - This writ has been termed as a preventive prerogative writ as its
issuance comes into picture whenever the higher courts or authorities sense a need of
prohibiting or preventing lower courts, tribunals, officers or individuals in exercising the
powers which are not vested in them or which they are not legally and judicially entitled
to possess. This writ can be issued only against a judicial or quasi judicial body and has is
known as a judicial writ.
The writ of prohibition is a writ issued by the Supreme Court or a High Court to an
inferior court forbidding the latter to continue proceedings therein in excess of its
jurisdiction or to usurp a jurisdiction with which, it is legally not vested.
The writ of prohibition differs from the writ of mandamus in the sense that while
mandamus commands activity, prohibition commands inactivity. Further, while
mandamus is available not only against judicial authorities but also against administrative
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authorities, prohibition as well as certiorari are issued only against judicial or quasijudicial authorities.
4. Writ of Certiorari - This writ (meaning, to be informed of) mentions the concept of
judicial review wherein approval is acquired from the higher court for the re-examination
of the actions of the lower courts so as to ensure taking up of judicial decision. The literal
meaning of the word certiorari is to be more fully informed of. Though prohibition
and certiorari are both issued against Courts or tribunals exercising judicial or quasijudicial powers, certiorari is issued to quash the order or decision of the tribunal while
prohibition is issued to prohibit the tribunal from an ultra vires order or decision.
While prohibition is available at an earlier stage, certiorari is available at a later stage, on
similar grounds. The object of both is to secure that the jurisdiction of an inferior court or
tribunal is properly exercised and to see that it does not usurp the jurisdiction for which it
does not possess an authority.4
5. Writ of Quo Warranto - This writ (meaning, by what authority/warrant) requires a
person to show the authority or the right they claim to possess on the basis of which the
warrant has been issued. It is not basically a petition, but a demand to ask for the
authority and hence is considered as a basic legal remedy. Quo warranto is a proceeding
whereby the court enquires into the legality of the claim which a party asserts to a public
office, and to oust him/her from its enjoyment if the claim is found to be fake or invalid.
The conditions necessary for the issue of a writ of quo warranto are as follows:
(i) The office must be public and it must be created by statute or by the Constitution
itself;
(ii) The office must be a substantive one and not merely the function or employment of a
servant at the will and during the pleasure of another.
4 Prof. M P Jain, Indian Constitutional Law, 5th Edition, 2009, Lexis Nexis Butterworths

Wadhwa, Nagpur.
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(iii) There has been a contravention of the Constitution or a statute or statutory

instrument, in appointing such a person to that office.
The fundamental basis of the proceeding of quo warranto is that the public has an interest
to see that an unlawful claimant does not usurp a public office. It is, however, a
discretionary remedy that the court may grant or refuse according to the facts, and
circumstances in each case. Quo warranto is thus a very powerful instrument for
safeguarding against the usurpation of public offices.
Issuance of any of these five writs has to be by the way of Article 32 or Article 226 for
Supreme Court and High Court respectively. Article 226 has a broader jurisdiction than
that of article 32 as SC can issue writs only when there is a fundamental right
infringement, on the other hand, High Court can issue these in both ordinary legal rights
as well as violation of fundamental rights. Article 32 has been called as a Constitutional
Remedy for the enforcement of fundamental rights and is the most crucial article of all
without which Constitutions existence can be questioned as it is the heart and soul of the
Constitution. The jurisdiction to issue prerogative writs came with the establishment of
the Supreme Court by the Regulating Act of 1773.5

5 http://www.legalservicesindia.com/article/article/writs-in-indian-society-&-its-execution-622-1.html
accessed last on 26/04/2016
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DOCTRINE OF RES-JUDICATA
Res in Latin means thing a 'Judicata' means already decided. This rule operates as a bar
to the trial of a subsequent suit on the same cause of action between the same parties. Its
basic purpose is - "One suit and one decision is enough for any single dispute". The rule
of 'res judicata' does not depend upon the correctness or the incorrectness of the former
decision.6 It is a principle of law by which a matter which has been litigated cannot be
relitigated between the same parties. This is known as the rule of "res judicata" (thing
decided). The aim of this rule is to end litigation once a matter has been adjudicated. It
aims to save the court time and prevent harassment to parties.
Res judicata pro veritate accipitur is the full maxim which has, over the years, shrunk
to mere "res judicata". Section 11 of the Civil Procedure Code contains the rule of
conclusiveness of the judgment, which is based partly on the maxim of Roman
Jurisprudence interest reipublicae ut sit finis litium (it concerns the State that there be
an end to law suits) and partly on the maxim Nemo debet bis vexari pro una at eadem
causa (no man should be vexed twice over for the same cause). The section does not
affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if
the matter in the suit was directly and substantially in issue (and finally decided) in the
previous suit between the same parties litigating under the same title in a court,
competent to try the subsequent suit in which such issue has been raised. 7 The principle
of res judicata is based on the need to give finality and certainty to judicial decisions. The
principle of res judicata includes constructive res judicata8 also.

6 AIR 1983 NOC 69 (All).

7 Kunjan Nair Sivaraman Nair v. Narayanan Nair and others 2004 AIR (SC) 1761, 2004 (3) SCC 277.
8 Explanation IV to s. 11 of CPC.
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The term res judicata in common parlance refers to the various ways in a judgment in
which one action will have a binding effect in another. In modern terminology, these
binding effects are called claim preclusion9. It must be distinguished from the second
effect which is called collateral estoppel or issue preclusion 10. Res judicata is a broad
term which encompasses both issue preclusion or claim preclusion. The effect of issue
preclusion is that an issue determined in a first action may not be re-agitated when the
same issue arises in a later action based on a different claim or demand. 11

Essentials for Res Judicata. The general principle of res judicata is embodied in its
different forms in three different Indian major statutesSection 11 of the Code of Civil
Procedure, Section 300 of the Code of Criminal Procedure, 1973 and Sections 40 to 43 of
the Indian Evidence Act, yet it is not exhaustive. Under Section 11 of the Code of Civil
Procedure. following conditions must be proved for giving effect to the principles of res
judicata
1. The matter directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue either actually or constructively
in the former suit.
2. The former suit must have been a suit between the same parties or between parties
under whom they or any of them claim.
3. Such parties must have been litigating under same title in the former suit.

9 Claim preclusion focuses on barring a suit from being brought again on a legal cause of action that has
already been finally decided between the parties.
10 Issue preclusion bars the re-litigation of factual issues that have already been necessarily determined
by a judge or jury as part of an earlier claim.
11 94 US 351 352-353, 24 Led. 195, 197-198 (1877) wherein the distinction between issue preclusion
and claim preclusion has been formulated by Mr. Justice Field in Crownwell v. County of Sac.
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4. The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised.
5. The matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in the former suit.
If any one or more conditions are not proved, the principle of res judicata would not
apply. Where all the five conditions are proved, the Court has no jurisdiction to try the
suit thereafter as it becomes not maintainable and liable to be dismissed. For application
of principle of res judicata, existence of decision finally deciding a right or a claim
between parties is necessary.
The leading case on the doctrine of res judicata is the Duches of Kingston's Case12,
wherein Sir Williams de Grey made the following remarkable observations:
From the variety of cases relative to judgments being given in evidence in civil suits,
these two deductions seem to follow as generally true : first the judgment of a Court of
concurrent jurisdiction, directly upon the points, is as a plea, a bar, or as evidence
conclusive, between the same parties, upon the same matter, directly in question in
another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly
upon the point, is, in like manner, conclusive upon the same matter, between the same
parties, coming incidentally in question in another Court, for a different purpose. But
neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter
which came collaterally in question, though within their jurisdiction, nor of any matter
incidentally cognizable, nor of any matter to be inferred by argument from the judgment.
In Corpus Juris13, it has been stated: Res Judicata is a rule of universal law pervading
every well regulated system of jurisprudence and is put upon two grounds, embodied in
various maxims of the common law; the one, public policy and necessity, which makes it
12 2 Smith's L.C. 13th edn. 644, 645.
13 vol. 34, p. 743
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to the interest of the state that there should be an end to litigation; the other, the hardship
to the individual that he should not be vexed twice for the same cause.

Constructive Res Judicata:

Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the
Code. It is artificial form of res judicata and provides that if a plea could have been taken
by a party in a proceeding between him and his opponent, he should not be permitted to
take that plea against the same party in a subsequent proceeding with reference to the
same subject-matter. That clearly is opposed to considerations of public policy on which
the doctrine of res judicata is based and would mean harassment and hardship to the
opponent.Besides, if such a course is allowed to be adopted, the doctrine of finality of
judgments pronounced by the courts would also be materially affected.
Thus, it helps in raising the bar of res judicata by suitably construing the general principle
of subduing a cantankerous litigant. That is why this rule is called constructive res
judicata, which, in reality, is an aspect or amplification of the general principle of res
judicata.
In State of U.P. V. Nawab Hussain14, A, a sub-inspector of police was dismissed from
service by D.I.G. He challenged the order of dismissal by filing a writ petition in the
High Court on the ground that he was not afforded a reasonable opportunity of being
heard before the passing of the order. The contention was, however, negatived and the
petition was dismissed. He then filed a suit and raised an additional ground that science
he was appointed by the I.G.P., the D.I.G. had no power to dismiss him. The state
contended that the suit was barred by constructive res judicata. The trial court, appellate
court and the high court held that suit was not barred, but the Supreme Court held that the
14 AIR 1977 SC 1680
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suit was barred by constructive res judicata as the plea was within the knowledge of the
plaintiff and could well have been taken in the earlier writ petition.
To bring the finality of the judgment, such rule is required and this rule is not an
exception in Indian law. Almost every civilized legal system have this rule by one name
or another, such as, under Roman Law, it is in the name of ex captio res judicata, that is
one suit and one decision is enough for any single dispute. The doctrine of res judicata is
conceived in the larger public interest which requires that all litigation must, sooner than
later, come to an end. The principle is also founded on justice, equity and good
conscience which require that a party who has once succeeded on an issue should not be
harassed by multiplicity of proceedings involving the same issue.

RES-JUDICATA IN WRIT PETITION

It is settled principle of law that general principle of res judicata applies to writ petitions.
However, a writ petition dismissed under Article 226 of the Constitution of India would
not ordinarily bar filing of writ petition under Article 32 or an special leave petition under
Art. 136. In M.S.M Sharma v. Dr. Shree Krishna,15, for the first time Supreme Court held
that the general principle of res judicata applies even to writ petition filed under Article
32 of the Constitution of India. Thus, once the petition filed under Article 32 is dismissed
by the court, subsequent petition is barred. Similarly a writ petition filed by a party under
Article 226 is considered on merit as a contested matter and is dismissed, the decision
thus pronounced would continue to bind unless it is otherwise modified or reversed in
appeal or in other appropriate proceedings permissible under the Constitution.
In the leading case of Daryao v. State of U.P.,16the Supreme Court has placed the doctrine
of res judicata on a higher footing, considering and treating the binding character of the
judgments pronounced by competent courts as an essential part of the rule of law. The
15 AIR 1960 SC 1186
16 AIR 1961 SC 1457
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Supreme Court has exhaustively dealt with the question of applicability of the principle
of res judicata in writ proceedings and laid down certain principles which may be
summarized thus:
1. If a petition under Article 226 is considered on merits as a contested matter and is
dismissed, the decision would continue to bind the parties unless it is otherwise modified
or reversed in appeal or other appropriate proceedings permissible under the Constitution.
2. It would not be open to a party to ignore the said judgment and move the Supreme
Court under Article 32 by an original petition made on the same facts an for obtaining the
same or similar orders or writs.
3. If the petition under Article 226 in a High Court is dismissed not on merits but because
of laches of the party applying for the writ or because it is held that the party had an
alternative remedy available to it the dismissal of the writ petition would not constitute a
bar to a subsequent petition under Article 32.
4. Such a dismissal may, however, constitute a bar to a subsequent application under
Article 32 where and if the facts thus found by the High Court be themselves relevant
even under Art. 32.
5. If a writ petition is dismissed in limine and an order is pronounced in that behalf,
whether or not the dismissal would constitute a bar would depend on the nature of the
order. If the order is on merits, it would be a bar.
6. If a petition is dismissed in limine without a speaking order, such dismissal cannot be
treated as creating a bar of res judicata.
7. If a petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition
under Article 32 because in such a case, there had been no decision on merits by the
court.17
17 AIR 1961 SC 1465-66.
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8. The doctrine of constructive res judicata applies to writ proceedings and when any
point which might and ought to have been taken but was not taken in earlier proceedings
cannot be taken in a subsequent proceeding.
9. The rule of constructive res judicata however does not apply to a writ of habeas corpus.
Therefore, even after the dismissal of one petition of habeas corpus, a second petition is
maintainable if fresh, new or additional grounds are available.
10. The general principles of res judicata apply to different stages of the same suit or
proceedings.18
11. If a petitioner withdraws the petition without the leave of court to institute a fresh
petition on the same subject-matter, the fresh petition is not maintainable.19

Applicability of Constructive Res-Judicata in Writ Petition

A question sometimes arises as to whether the rule of constructive res-judicata can be
applied to writ petitions. This question arose for the first time before the Supreme Court
in the case of Amalgamated Coalfields Ltd v. Janapada Sabha20. In that case, the earlier
notices issued by the respondent against the companies calling upon them to pay tax were
challenged on certain grounds. At the time of hearing of the petitions, an additional
ground was also taken and the authority of the Sabha to increase the rate of tax was
challenged. However, since there was no pleading, the said point was not allowed to be
argued and the petitions were dismissed. The said decision was upheld even by the
Supreme Court. Thereafter, once again when the notices were issued in respect of the
different period, they were challenged on that additional ground, which was not permitted

18 Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993.

19 Sarguja Transport Services v. State Transport Appellate Tribunal, (1987) 1 SCC 5.
20 AIR 1964 SC 1013.
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to be argued in the previous litigation. The High Court dismissed the petitions holding
that they were barred by res judicata.
In Devilal Modi V. STO21, Supreme Court clarified the stand and said the principle of
constructive res judicata also applies in writ petition. A direct question, however arose
before the Supreme Court in State of U.P. V. Nawab Hussain22, the Court held that
principle of constructive res judicata is applicable.

Habeas Corpus Petition :

English23 as well as American24 Courts have taken the view that the principle of res
judicata is not applicable to a writ of habeas corpus. In India also, the doctrine of res
judicata is not made applicable to cases of habeas corpus petitions. In Ghulam Sarwar v.
Union of India25, rejecting the plea of application of constructive res judicata, the
Supreme Court observed: If the doctrine of constructive res judicata be applied, this
Court, though is enjoined by the Constitution to protect the right of a person illegally
detained, will become powerless to do so. That would be whittling down the wide sweep
of the constitutional protection.26

21 AIR 1965 SC 1153

22 AIR 1977 SC 1680
23 Cox v. Hakes, (1890) 15 AC 506.
24 Edward v. Charles, (1835) 9 Law Edn. 859.
25 AIR 1967 SC 1335.
26 Niranjan Singh v. State of M.P. AIR 1972 SC 2215.
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In Lallubhai Jogibhai Patel v. Union of India27, the petitioner was detained and the
petition filed against the said order was dismissed by the Supreme Court by an order
dated May 9, 1980, but the reasons were given on the August 4, 1980, he was informed
that he may, if so advised, file a fresh petition on those additional grounds, which he did.
The question which arose before the Supreme Court was whether the principle of
constructive res judicata could apply to a writ of habeas corpus. Sarkaria J. made the
following remarkable observations, which, it is submitted lay down correct law: The
application of constructive res judicata is confined to civil actions and civil proceedings.
This principle of public policy is entirely inapplicable to illegal detention and does not
bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution
on fresh grounds, which were not taken in the earlier petition for the same relief.

CONCLUDING REMARKS
The principle of application of res judicata is not applicable in Writ of Habeas Corpus, so
far as High Courts are concerned. The principles accepted by the English and American
Courts, viz., that res judicata is not applicable in Writ of Habeas Corpus holds good. But
unlike in England, in India the person detained can file original petition for enforcement
of his fundamental right to liberty before a Court other than the High Court, viz., the
Supreme Court. The order of the High Court in such a case will not be res judicata as held
by the English and the American Courts because it is either not a judgment or because the
principle of res judicata is not applicable to a fundamentally lawless order." In Nazul Ali
Molla etc. v. State of West Bengal28 the petitioners had challenged their detention under
27 AIR 1981 SC 728.
28 1969 (3) SCC 698
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Section 3 (2) of the Preventive Detention Act by filing a writ petition under Article 226 of
the Constitution before the Calcutta High Court, but the petition was dismissed.
Thereafter they filed a writ petition under Article 32 of the Constitution in this Court. The
objections raised by the State regarding maintainability of the petition was repelled and it
was held that a petition under Article 32 of the Constitution for the issue of writ of habeas
corpus would not be barred on the principle of res judicata if a petition for a similar writ
under Article 226 of the Constitution before a High Court has been decided and no appeal
is brought up to the Supreme Court against that decision. Similar view has been taken in
Niranjan Singh v. State of Madhya Pradesh29.
The principle which can be culled out from this authorities is that the bar of res judicata
or constructive res judicata would apply even to a petition under Article 32 of the
Constitution where a similar petition seeking the same relief has been filed under Article
226 of the Constitution before the High Court and the decision rendered against the
petitioner therein has not been challenged by filing an appeal in the Supreme Court and
has been allowed to become final. However, this principle, namely, the bar of res judicata
or principles analogous thereto would not apply to a writ of habeas corpus where the
petitioner prays for setting him at liberty. If a person under detention files a writ of habeas
corpus under Article 226 of the Constitution before the High Court and the writ petition is
dismissed (whether by a detailed order after considering the case on merits or by a nonspeaking order) and the said decision is not challenged by preferring a Special Leave
Petition under Article 136 of the Constitution and is allowed to become final, it would
still be open to him to file an independent petition under Article 32 of the Constitution
seeking a writ of habeas corpus.
It is well settled that a decision pronounced by a Court of competent jurisdiction is
binding between the parties unless it is modified or reversed by adopting a procedure
prescribed by law. It is in the interest of public at large that finality should attach to the
binding decisions pronounced by a court of competent jurisdiction and it is also in the
29 1972 (2) SCC 542
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public interest that individuals should not be vexed twice over with the same kind of
litigation. While hearing a petition under Article 32 it is not permissible for this Court
either to exercise a power of review or some kind of an appellate jurisdiction over a
decision rendered in a matter which has come to this Court by way of a petition under
Article 136 of the Constitution. The view taken in Bhagubhai Dullabhbhai Bhandari v.
District Magistrate30 that the binding nature of the conviction recorded by the High Court
against which a Special Leave Petition was filed and was dismissed cannot be assailed in
proceedings taken under Article 32 of the Constitution was approved in Daryao v. State
of U.P. (supra). In Lallubhai Jogibhai Patel v. Union of India and Ors31. it was noted as
follows: The preliminary question, therefore, to be considered is, whether the doctrine of
constructive res judicata applies to a subsequent petition for a writ of habeas corpus on a
ground which he might and ought to have taken in his earlier petition for the same
relief. In England, before the Judicature Act, 1873, an applicant for habeas corpus had a
right to go from court to court, but not from one Bench of a court to another Bench of the
same Court. After the Judicature Act, 1873, this right was lost, and no second application
for habeas corpus can be brought in the same court, except on fresh evidence.
In re Hastings, Lord Parker, C.J., after surveying the history of the right of habeas corpus,
arrived at the conclusion that it was never the law that in term time, successive writs of
habeas corpus lay from Judge to Judge. In re Hastings Harman, J. pointed out that since
the Judicature Act had abolished the three independent courts, namely, the Court of
Exchequer, the King's Bench Division, and the Common Pleas, and had constituted one
High Court, when an application for writ of habeas corpus has been disposed of by one
Divisional Court, no second application on the same ground lies to another Divisional
Court of the High Court. This position was given statutory recognition in the

30 AIR 1956 SC 585

31 AIR 1981 SC 728
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Administration of Justice Act, 1960." In the said case reference was also made to the
earlier decision in Gulam Sarwar's case.
The position that emerges from a survey of the above decisions is that the application of
the doctrine of constructive res judicata is confined to civil actions and civil proceedings.
This principle of public policy is entirely inapplicable to illegal detention and does not
bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution
on fresh grounds, which were not taken in the earlier petition for the same relief."
Whether any new ground has been taken, has to be decided by the Court dealing with the
application and no hard and fast rule can be laid down in that regard. But one thing is
clear, it is the substance and not the form which is relevant. If some surgical changes are
made with the context, substance and essence remaining the same, it cannot be said that
challenge is on new or fresh grounds.

Bibliography
BOOKS REFERRED:

D J De, The Constitution of India, Volume 1, 3rd Edition, 2008, Asia Law House, New

Delhi.
Durga Das Basu, Commentary on the Constitution of India, Volume 2, 8th Edition, 2007,

Wadhwa and Company, Nagpur.

Durga Das Basu, Law of the Press, 4th Edition, 2002, Wadhwa and Company, Nagpur.

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Dr. J N Pandey, Constitutional Law of India, 44th Edition, 2007, Central Law Agency,

Allahabad.
Dr. Madabhusi Sriddhar, The Law of Expression, 1st Edition, 2007, Asia Law House,

Hyderabad.
H M Seervai, Constitutional Law of India, 4th Edition, 2007, Universal Law Publishing

Company, New Delhi.

Madhavi Goradia Divan, Facets of Media Law, Eastern Book Company, Lucknow.
Prof. Kailash Rai, The Constitutional Law of India, 8th Edition, 2009, Central Law

Publications, Allahabad.
Prof. M P Jain, Indian Constitutional Law, 5th Edition, 2009, Lexis Nexis Butterworths

Wadhwa, Nagpur.
V N Shukla, Constitution of India, 10th Edition, 2001, Eastern Book Company, New
Delhi.

WEBSITES REFERRED:

11. http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm
13. http://www.legalserviceindia.com/article/l46-Freedom-of-Press.html

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