FUNDAMENTAL RIGHTS AND THE SUPREME COURT’S OBSERVATIONS

 The Author of this blog is M Mohanapriya, student of 2nd year, BA LLB (H), Chennai Dr. Ambedkar Government Law College, Pudupakkam 

INJUSTICE ANYWHERE IS A THREAT TO JUSTICE EVERYWHERE’

                                   -KING MARTIN LUTHER

Introduction

The constitution of India, enacted in 1950, has been at cornerstone of India’s democracy.     The development of constitutionally guaranteed fundamental human rights in India were inspired by the England’s Bill of Rights, the United States Bill of Rights and France’s Declaration of Rights of Man[i]. Fundamental Rights enshrined in the Part III of the Constitution of India guarantees civil liberties such that all Indians can lead their lives in peace and harmony. The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They facilitate the establishment of rule of law in the country, strengthen the secular fabric of the Indian State, lay down the foundation stone of social equality & social justice, and ensure the dignity & respect of individuals. 

Legal Rights v. Fundamental Rights

The Legal Rights are protected by an ordinary law, they can be altered or repealed by the legislature.  However, Fundamental Rights are protected and guaranteed by the constitution.  They cannot be taken away by an ordinary law enacted by the legislature.  If a legal right of a person is violated. He, can move to an ordinary court, but if a fundamental right is violated the Constitution provides that affected person may move to High court or Supreme Court.

Types of Fundamental Rights

Fundamental Rights are mentioned under Article 12-35 of the Constitution of India. 

1.  Right to Equality (Article 14-18): Right to equality including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment.

2.     Right to Freedom (Article 19-22):  Right to freedom of speech and expression, assembly, association or union, movement, residence, and right to practice any profession or Occupation.   Articles 20 and 21 cannot be suspended during the National Emergency.   It also recognized under the United Nations-Universal Declaration of Human Rights, and the International Covenant for Civil and Political Rights[ii].

3.  Right against Exploitation (Article 23-24):  Right against exploitation prohibiting all forms of forced labour, child labour and traffic in human beings.

4. Right to Freedom of Religion (Article 25-28):  Right to freedom of conscience and free profession, practice, and propagation of religion.

5.  Cultural and Educational Rights (Article 29-30):  Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.

6.   Right to Constitutional Remedies (Article 32-35):  Right to Constitutional remedies for enforcement of Fundamental Rights.   

Right to Constitutional Remedies (Article 32)

Article 32 deals with the right to ‘Constitutional Remedies.’  This provision makes Supreme Court as a guardian of the Constitution and great protector of the Fundamental Rights.  The Indian Constitution empowers the Supreme Court to issue writs for enforcement of the fundamental rights conferred by Part III of the Indian Constitution under Article 32[iii].

(1)   The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2)   The Supreme Court shall have the power to issue directions or orders or writs, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3)   Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits its jurisdiction all or any of the powers exercisable by the Supreme Court under clause(2).

(4)   The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution[iv].

Meaning of Writ and its types

A formal order under seal, issued in the name of sovereign, government, court or other competent authority, enjoying the officer or other person to whom it is issued or addressed to do or refrain from some specified act[v].

1.     Habeas Corpus:  It was derived from the Latin term which means “That you have the body.”  It related to personal liberty in cases of illegal detentions and wrongful arrests.  It also known as bulwark of individual liberty against arbitrary detention[vi].  It can be issued against public as well as private.

2.     Mandamus:  Mandamus is a Latin that means “We Command.” It was first used by English Courts in the early Seventeenth century to the subordinate court, inferior tribunal, board or to any person for perform a public duty imposed by law in a proper manner. Mandamus can be issued to any kind authority in respect of any type of function – administrative, legislative, quasi-judicial & judicial.  It is called ‘Weakening Call’ because it awakes the sleeping authorities to perform their duty. 

3.     Quo warranto:  ‘Quo-warranto’ is a legal proceeding during which an individual’s right to hold an office or governmental privilege is challenged. It literally means ‘by what warrants?’ or ‘what is your authorities?’ It is used to restrain a person from holding a public office to which he is not entitled. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years.  Now, the court may directs him not to carry out any activities in the office or may announce the office to be vacant[vii].

4.     Prohibition: Prohibition means to ‘forbid’ or stop.  It is commonly known as ‘Stay Order.’  It issued to directing judicial, or quasi-judicial authorities, and not against administrative authorities, legislative bodies and private individuals or bodies to stop proceedings which it has no jurisdiction for.

5.     Certiorari: Re-examination of an order given by judicial, quasi judicial or administrative authorities.  Certiorari is derived for Latin word which means ‘to inform.’ It means to be certified.  There are various grounds based on certiorari is issued: (1) Lack of Jurisdiction; (2) Excess of Jurisdiction; (3) Abuse of Jurisdiction; (4) Violation of the principle of natural justice; (5) Error of law apparent on the face of record[viii].

The Supreme Court of India and Fundamental Rights

v In the case Romesh Thappar v. State of Madras, the Supreme Court observed that Article 32 provides a ‘guaranteed’ remedy for the enforcement of fundamental rights[ix].

v In the case of Golaknath v. State of Punjab (1967), the Apex Court held that law made by the parliament shall not be such that infringes and takes away the fundamental rights of the citizen which are provided by the Constitution of India.  According to the judgement, no act of the parliament can be considered a law if it violated the basic structure of the constitution[x].

v In the case of Kesavananda Bharati v. State of Kerala, the Supreme Court gave parliament power to amend any part of Constitution of India.  However, that such amendment shall not take away the fundamental rights of the citizen which are provided by the Constitution of India.

v In the case of Minerva Mills v. Union of India, the Supreme Court held that social welfare laws should not infringe fundamental rights.

v In the Case of Skill lotto Solutions Pvt. Ltd v. Union of India & Ors[xi], Supreme Court held that ‘Article 32 is an important and integral part of the basic structure of the Constitution.  Article 32 is meant to ensure observance of rule of law.  It provides for enforcement of the fundamental, which is the most potent weapon[xii]’

v Recently, the Supreme Court Bench headed by Chief Justice of India, during a hearing of a plea, said that, ‘the court is trying to discourage individuals from filling petitions under Article 32 of the Constitution’.  CJI reiterated that the High Court can also uphold fundamental rights under Article 226[xiii]. 

Conclusion

The people of India hold the Court in high esteem[xiv].  The Hon’ble Supreme Court should not discourage constitutional remedies provided in the Constitution.  Having the Right to Constitutional Remedies is crucial to uphold the ideas of democracy, freedom, equality, and liberty.  The Father of the Indian Constitution, Dr. B.R. Ambedkar had once said, ‘If I was asked to name any particular article in this Constitution as the most important – an article without which this constitution would be a nullity – I could not refer to any other article except this one (Article 32).  It is the very soul of the Constitution and the very heart of it’[xv].

---

 

[ii] http://www.sflc.in

[iii] http://www.knowindia.gov.in

[iv] http://www.constitutionofindia.net

[v] http://www.dictionary.com

[vi] http://www.thefactfactor.com

[vii] http://www.iasplanner.com

[viii] http://www.lawyerservice.in

[ix] http://www.indianexpress.com

[x][x] http://www.indianbarassociation.org

[xi] http://indiakanoon.org/doc/21712941

[xii] http://www.lawtimesjournal.in

[xiii] http://www.thequint.com

[xiv] http://www.livelaw.in

[xv] http://www.ambedkaritetoday.com