Right to Constitutional Remedies Right to Constitutional Remedies- Enforcement of Fundamental Rights

 

 

ABSTRACT

The Indian Constitution recognizes rights which are called fundamental rights. These rights are enforceable, and the Constitution indicates how an aggrieved citizen can enforce their rights. The law also stipulates the remedies available to an aggrieved citizen.

In this article, we shall examine the ways in which citizens’ rights can be enforced and the remedies available to an aggrieved applicant. Our discussion shall flow in the following order:

1. Introduction
2. Enforcement of Fundamental Rights
3. Remedies available to Aggrieved Citizens
4. Conclusion

1.0     Introduction

The Constitution puts in place the legal mechanism through which a person can enforce his fundamental right(s) where there is an existing or threatened infringement to the exercise of such right(s). The law also stipulates the constitutional remedies that can be sought and given to an aggrieved applicant.

We shall proceed to examine fundamental aspects of the Constitution-

2.0     ENFORCEMENT OF FUNDAMENTAL RIGHTS  

Article 32(2) of the Constitution states:

The Supreme Court will have the capacity to issue bearings or requests or writs, incorporating writs in the idea of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be suitable for the requirement of any of rights given by this Part.

Article 32(2) vests the Supreme Court of India with the jurisdiction to entertain matters bordering on the enforcement of Fundamental Rights. Thus, by virtue of Article 32, an aggrieved Indian citizen has the right to file a fundamental right enforcement action directly at the Supreme Court. In Ramesh Thappar v. State of Madras, AIR 1950 SC 124, the Supreme Court ruled that a petitioner can go straight to the Supreme Court to enforce his rights without having to go to a High Court first. It was observed that Article 32 constitutes the Supreme Court as the guarantor and protector of fundamental rights.

Article 32 is somewhat restrictive in scope. This is because the Supreme Court can only exercise jurisdiction over fundamental rights protected under Article 12 – 35, i.e. Part III of the Constitution.

The High Courts of India, also have the jurisdiction to entertain matters on enforcement of Fundamental Rights. Article 226(1) of the Indian Constitution provides as follows:

Notwithstanding anything in Article 32, every High Court shall have powers throughout the territories in relation to which it exercise jurisdiction to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”

The scope of the High Court’s jurisdiction is much wider than that of the Supreme Court. However, unlike the Supreme Court which has jurisdiction over the whole of India, territorial jurisdiction limits the scope of the High Court.

3.0     Remedies available to Aggrieved Citizens

The Supreme Court and the High Court may issue the suitable writ for the enforcement of a citizen’s fundamental right.

A writ is an order of court directing the recipient of such order to do or refrain from doing a particular act. Different writs serve different purpose. The available writs that can be issued for the enforcement of a fundamental right under the Indian Constitution are as follows:

• Writ of Habeas Corpus

It is an order by the court directing that a detainee, who has been illegally and unlawfully detained, be produced or brought before the court, in order to intimate the court of the grounds and reasons of his detention. The court can set the detainee free where illegal detention is proved.

Who Can Apply?

1. A family member, friend, or any other person that has interest in the detainee, can apply for the writ on behalf of the detainee.
2. Where it beliefs the issuance of the writ will be in the interest of justice, the court can issue the writ suo motu upon receiving any information,

When will it be issued?

• It is issued when a person has been unlawfully or illegally detained, either in private detention or public detention (i.e. detention by the State)

When will it not be issued?

• It cannot be issued against a lawful detention.
• It cannot be issued during a period of emergency. This is because, during such periods, the fundamental rights of citizens are suspended and no person can move the court to issue this writ. This position was established in D.M. Jabalbur v. Shivakant Shulka, 1976. Furthermore, the Article 359 of the Constitution enables the President to suspend enforcement proceedings at the Supreme Court.

 

• Writ of Mandamus

It is an order of court compelling a lower court or government body/officer to perform a particular Constitutional duty or any other public duty imposed by such a body under any other law.  This writ can also compel a person to refrain from doing an Act which is contrary to the act that the Constitution or any other law mandates him to do.

Who Can Apply?

A person who shows that he has the locus standi to enforce a public duty for his private benefit.

When will it be issued?

It will be issued when the applicant/petitioner proves that

• He has a legal right which gives him the locus standi to make the application
• The authority which the applicant/petitioner complains against has a public duty legally imposed on it, and the performance of such duty is compulsory.
• The authority did not carry out its public duty, erroneously, in abuse of his jurisdiction/power, and in violation of the principles of natural justice.
• The conduct of the authority resulted in the infringement of his fundamental rights

 

When will it not be issued?

It cannot be issued against:

1. the President, Governor of State in the exercise of the powers of their office. Moreover, these persons enjoy immunity under Article 361 of the Constitution
2. State legislature for enacting a law in the interest of the public, even though the applicant feels that the law infringes on his rights.
3. Against a private individual or body
4. An inferior public officer working in accordance with the orders given to him by his superior officer

 

• Writ of Prohibition

It is an order of a Superior Court directing that a lower court or tribunal/quasi-judicial body/authority (i.e. tribunal) should refrain from or stop doing a particular act. The writ prohibits the continuation of the act or process complained about.

Who Can Apply?

A person whose fundamental right is being infringed by an ongoing process of a court or a quasi-judicial body can apply for the Writ of Prohibition.

When will it be issued?

It is issued when an applicant proves that a lower court or a quasi-judicial authority/body:

• is acting in violation of the principles of natural justice;
• is acting in absence of jurisdiction or excess of jurisdiction;
• is acting in an unconstitutional manner
• Is acting in a manner which infringes the applicant’s fundamental right.

 

When will it not be issued?

• It cannot be issued against a completed act of a lower court or quasi-judicial authority. In such a case, depending on the body involved, mandamus or certiorari are the appropriate writs.
• It cannot be issued against an administrative body in the discharge of its administrative, executive or ministerial functions.
• It cannot be issued against the legislature for the purpose of restraining it from enacting a law.

 

• Certiorari

It is an order of a Superior Court which quashes the decision of a lower court or tribunal. A person who applies for the issuance of this writ, is in effect, calling upon the Court to certify the legality and validity of the order of the lower court or quasi-judicial body. If the Superior Court finds that the decision is not legal and valid, then it has the power to quash such decision.

Who Can Apply?

A person whose fundamental right has been infringed by virtue of the decision or completed process of a judicial or quasi-judicial body, can apply for the Writ of Certiorari to quash such decision.

When will it be issued?

It is issued when the applicant proves that:

• The court or quasi-judicial authority had the legal authority to determine questions affecting the applicant’s rights
• The court or authority had the duty to act judicially
• The court or authority acted in excess of its authority; made an error on the face of the record; had no jurisdictional fact; or violated the principles of natural justice.
• The applicant’s fundamental right has been infringed by the decision or order of a court or tribunal.

When will it not be issued?

• Since it is restricted to judicial and quasi-judicial decisions, then any decision which does not fall within this category will not attract the issuance of a writ of certiorari.
• It cannot be issued against a superior court or court of coordinate jurisdiction. In Surya Dev Rai v. Ram Chander Rai & Ors. It was held that a certiorari cannot be issued against an equal or higher court.

 

• Quo Warranto

This Latin term means ‘what is your authority or show your authority’. It is an order issued to determine whether a person has the legal right to the public office which he holds. Where it is shown that the public officer does not have the right to hold the public office, the court can remove him from the office.

It is pertinent to know that an applicant cannot apply for this remedy as of right. It is a discretionary remedy and the court can refuse to grant it, after taking into consideration the facts and circumstances of the case.

Who Can Apply?

• A person who is legally entitled to claim a public office can apply.
• Any other person can also apply for the issuance of this writ, even though his fundamental right has not been infringed.

When will it be issued?

It will be issued when the applicant/petitioner proves that

• He asserted his claim to a public office
• The public office was usurped by the respondent.
• The public office is a statutory or constitutional office i.e. a created by statute or in the Constitution.
• The public office is also a substantial office i.e. an independent office.

When will it not be issued?

• It cannot be issued against a private office.
• It cannot be issued against a public office that is not created by statute or by the Constitution. In Jamalpur Arya Samaj v. Dr. D. Ram, the writ was not issued because the office was of a private nature. It was also held that the wit can only be issued against a public office that is of substantive character.
• It may not be issued where the court finds that there is an alternative remedy, suitable for the applicant.

5.0     CONCLUSION

The fundamental rights created under the India Constitution are necessary for a democratic society. Articles 32 and 226 are very vital provisions, as they give citizens the medium through which they can enforce their fundamental rights, and seek appropriate remedies. However, in a State of Emergency, the President is empowered under Article 359 of the Constitution, to suspend enforcement proceedings at the Supreme Court.