It is common knowledge that often there are delays & latches when we approach
the Constitutional Court for protection/violation of our Fundamental & Human
Rights. The delay & latches are often due to our ignorance towards law, Fear of
moving against the tyranny of Government officials and often Hesitation to take
a bold step against the State or it's functionalities. A million dollar question
that arises is whether the Constitutional Courts should refuse to entertain and
reject the petition at the very outset, due to delay & latches or being the sole
protector of the Constitution grant justice to the poor & oppressed, unmindful
of the delay & latches.
The Constitution Bench of the Apex Court in the case of Tilokchand Motichand
& Ors vs H.B. Munshi & Anr
1970 AIR 898 categorically held that laches of
the aggrieved party shall not disentitle him to get relief under Article 32 of
the Constitution. The Court observed thus:
"As mentioned earlier a right to approach this Court under Art. 32 is itself a
fundamental right. In that 'respect our Constitution makes a Welcome departure
from many other similar Constitutions. As seen earlier a party aggrieved by the
infringement of any of its fundamental rights has a right to get relief at the
hands of this Court, and this Court has a duty to grant appropriate relief see
Joseph Pothen v. The State of Kerala
1965 AIR 1514.
The power conferred on this Court by that Article is not a discretionary power.
This power is not similar to the power conferred on the High Courts under Art.
226 of the Constitution, Hence laches on the part of an aggrieved 'party cannot
deprive him of the right to get relief from this Court under Art. 32."
It would be trite to refer to the case of Tukaram Kana Joshi and Ors. v. M.I.D.C.
and Ors., (2013) 1 SCC 353 wherein the Apex Court while dealing with a similar
fact situation, held as follows:
9. There are authorities which state that delay and laches extinguish the right
to put forth a claim. Most of these authorities pertain to service
jurisprudence, grant of compensation for a wrong done to them decades ago,
recovery of statutory dues, claim for educational facilities and other
categories of similar cases, etc.
Though, it is true that there are a few authorities that lay down that delay and
laches debar a citizen from seeking remedy, even if his fundamental right has
been violated, under Article 32 or 226 of the Constitution, the case at hand
deals with a different scenario altogether. Functionaries of the State took over
possession of the land belonging to the appellants without any sanction of law.
The appellants had asked repeatedly for grant of the benefit of compensation.
The State must either comply with the procedure laid down for acquisition, or
requisition, or any other permissible statutory mode. There is a distinction, a
true and concrete distinction, between the principle of "eminent domain" and
"police power" of the State. Under certain circumstances, the police power of
the State may be used temporarily, to take possession of property but the
present case clearly shows that neither of the said powers have been exercised.
A question then arises with respect to the authority or power under which the
State entered upon the land. It is evident that the act of the State amounts to
encroachment, in exercise of "absolute power" which in common parlance is also
called abuse of power or use of muscle power. To further clarify this position,
it must be noted that the authorities have treated the land owner as a 'subject'
of medieval India, but not as a 'citizen' under our constitution.
10. The State, especially a welfare State which is governed by the Rule of Law,
cannot arrogate itself to a status beyond one that is provided by the
Constitution. Our Constitution is an organic and flexible one. Delay and laches
is adopted as a mode of discretion to decline exercise of jurisdiction to grant
relief. There is another facet. The Court is required to exercise judicial
The said discretion is dependent on facts and circumstances of the cases. Delay
and laches is one of the facets to deny exercise of discretion. It is not an
absolute impediment. There can be mitigating factors, continuity of cause
action, etc. That apart, if whole thing shocks the judicial conscience, then the
Court should exercise the discretion more so, when no third party interest is
involved. Thus analysed, the petition is not hit by the doctrine of delay and
laches as the same is not a constitutional limitation, the cause of action is
continuous and further the situation certainly shocks judicial conscience.
11. The question of condonation of delay is one of discretion and has to be
decided on the basis of the facts of the case at hand, as the same vary from
case to case. It will depend upon what the breach of fundamental right and the
remedy claimed are and when and how the delay arose. It is not that there is any
period of limitation for the Courts to exercise their powers under Article 226,
nor is it that there can never be a case where the Courts cannot interfere in a
matter, after the passage of a certain length of time.
There may be a case where the demand for justice is so compelling, that the High
Court would be inclined to interfere in spite of delay. Ultimately, it would be
a matter within the discretion of the Court and such discretion, must be
exercised fairly and justly so as to promote justice and not to defeat it. The
validity of the party's defence must be tried upon principles substantially
(Vide: P.S. Sadasivaswamy v. State of T.N. AIR 1974 SC 2271; State of M.P. &
Ors. v. Nandlal Jaiswal & Ors., AIR 1987 SC 251; and Tridip Kumar Dingal & Ors.
v. State of West Bengal & Ors., (2009) 1 SCC 768;)
12. No hard and fast rule can be laid down as to when the High Court should
refuse to exercise its jurisdiction in favour of a party who moves it after
considerable delay and is otherwise guilty of laches. Discretion must be
exercised judiciously and reasonably. In the event that the claim made by the
applicant is legally sustainable, delay should be condoned. In other words,
where circumstances justifying the conduct exist, the illegality which is
manifest, cannot be sustained on the sole ground of laches.
When substantial justice and technical considerations are pitted against each
other, the cause of substantial justice deserves to be preferred, for the other
side cannot claim to have a vested right in the injustice being done, because of
a non- deliberate delay. The court should not harm innocent parties if their
rights have in fact emerged, by delay on the part of the Petitioners.
(Vide: Durga Prasad v. Chief Controller of Imports and Exports & Ors., AIR 1970
SC 769; Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., AIR
1987 SC 1353; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur
& Ors., AIR 1993 SC 802; Dayal Singh & Ors. v. Union of India & Ors., AIR 2003
SC 1140; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar & Ors., AIR
2011 SC 2161)"
It would also be relevant to refer to the case of Sukh Dutt Ratra vs The State
of Himachal Pradesh (2022) 7SCC 508, wherein the Apex Court, dealing with a
similar controversy, observed thus:
18. There is a welter of precedents on delay and laches which conclude either
way--as contended by both sides in the present dispute--however, the specific
factual matrix compels this Court to weigh in favour of the appellant
landowners. The State cannot shield itself behind the ground of delay and laches
in such a situation; there cannot be a ―limitation to doing justice.
This Court in a much earlier case --
Maharashtra SRTC v. Balwant Regular
Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, (1969) 1 SCR
808 : AIR 1969 SC 329] , held : (AIR pp. 335-36, para 11)
11. ... Now the doctrine of laches in Courts of Equity is not an arbitrary or a
technical doctrine. Where it would be practically unjust to give a remedy,
either because the party has, by his conduct, done that which might fairly be
regarded as equivalent to a waiver of it, or where by his conduct and neglect he
has, though perhaps not waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to place him if the remedy were
afterwards to be asserted in either of these cases, lapse of time and delay are
But in every case, if an argument against relief, which otherwise would be just,
is founded upon mere delay, that delay of course not amounting to a bar by any
statute of limitations, the validity of that defence must be tried upon
principles substantially equitable. Two circumstances, always important in such
cases, are, the length of the delay and the nature of the acts done during the
interval, which might affect either party and cause a balance of justice or
injustice in taking the one course or the other, so far as relates to the
It would be apropos to refer to a recent judgment of the Apex Court in
Association of Vasanth Appts. Owners vs V. Gopinanth And Ors. 2023 SCC OnLine SC
137 wherein the Court held thus:
Doctrine of Laches and Delay cannot become a constitutional limitation on
It would be apropos to refer to the case of Vidaya Devi vs The State Of Himachal
Pradesh on (2020) 2 SCC 569 wherein the Apex Court reiterated the said dictum &
10.7. The contention advanced by the State of delay and laches of the Appellant
in moving the Court is also liable to be rejected. Delay and laches cannot be
raised in a case of a continuing cause of action, or if the circumstances shock
the judicial conscience of the Court. Condonation of delay is a matter of
judicial discretion, which must be exercised judiciously and reasonably in the
facts and circumstances of a case. It will depend upon the breach of fundamental
rights, and the remedy claimed, and when and how the delay arose. There is no
period of limitation prescribed for the courts to exercise their constitutional
jurisdiction to do substantial justice.
In a case where the demand for justice is so compelling, a constitutional Court
would exercise its jurisdiction with a view to promote justice, and not defeat
It is worthwhile to mention the case of Sunil Kumar Rai vs The State of Bihar on
(2022) 3 SCC 245 wherein the Apex Court held thus:
32. "�..Further, in Olga Tellis v. Bombay Municipal Corpn., it has now been
conclusively held that all fundamental rights cannot be waived (at para 29).
Given these important developments in the law, the time has come for this Court
to say that at least when it comes to violations of the fundamental right to
life and personal liberty, delay or laches by itself without more would not be
sufficient to shut the doors of the court on any petitioner." Therefore, we do
not think we should be detained by the objection. We would think that delay by
itself cannot be used as a weapon to Veto an action under Article 32 when
Fundamental Rights is clearly at stake."
It is therefore undisputable that Laches & Delay in seeking due redressal do not
bar the Constitutional Courts from granting relief particularly where human or
fundamental rights have been throttled & violated.
Written By: Inder Chand Jain
Email: [email protected]
, Ph no: 8279945021