Right to Constitutional Remedies

 Right to Constitutional Remedies 

Introduction

In the event that a citizen's fundamental rights are violated, they may all petition the Supreme Court under Article 32 of Part III of the Indian Constitution.

Dr. B R Ambedkar had stated, "If I were 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" in reference to a discussion on this fundamental right (in the draught, it is referred to as Article 25). It is both the heart and the soul of the Constitution. He said the rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended and hence it was “ one of the greatest safeguards that can be provided for the safety and security of the individual”.

The right to petition the Supreme Court for the enforcement of rights granted by Part III of the Constitution is provided under Article 32 (1).

Article 32(2), which gives the Supreme Court the authority to issue directives, orders, or red for the enforcement of rights granted by Part 3 of the Constitution, including the red of habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

According to Article 32(3), Parliament may pass legislation authorising any other Court to exercise the rights granted to the Supreme Court by Article 32(2).

The rights granted by this article may not be suspended, unless the constitution expressly specifies otherwise, according to Article 32(4).

Habeas Corpus 

When someone is being held against their will, the courts will issue a Writ of Habeas Corpus. One of the best options accessible to a person in custody is the writ of habeas corpus, which translates to "to have the body."

Through this Writ, the Court directs whoever or whatever detains or restrains another person to bring them before the court. The person who is holding someone hostage must furnish the court with the reason(s) for holding them, and if he does not do so, the court will immediately release the individual from custody.

ADM Jabalpur v. Shivkant Shukla, (Habeas Corpus Case), AIR 1976

• A five-judge panel made up of Justices Ray, Beg, Chandrachud, Bhagwati, and Khanna rendered the decision in this case. 
• Four justices rendered the majority decision, while Justice Khanna strongly dissented.
• The Court held - Given the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala-fides factual or legal or is based on extraneous consideration.
• The Court also maintained Section 16A (9) of MISA's constitutionality.
•  In his dissenting opinion, Justice H.R. Khanna said that using Article 359(1) does not remove a person's ability to ask the Court to apply their legislative rights.
• He continued by saying that Article 21 was not the exclusive source of life and individual freedom.
• He said that when an emergency is declared, Article 21 simply loses its procedural power; nonetheless, this article's substantive power is still extremely important, and the State is not allowed to rob someone of their rights to life and liberty without a court order.

 

Mandamus

'We command' is what it says. A higher court order directing a lesser court or public officer to carry out his official obligations properly. Any public organisation, business, lower court, tribunal, or even the government itself may be the target of a writ of mandamus.

Checking the arbitrariness of an administrative decision is a crucial writ. It is also known as a "Writ of Justice" It cannot be used to enforce a private individual or entity's rights under a contract or a governmental directive that lacks statutory authority.

The Chief Justice of a High Court acting in a judicial capacity, the Governors of the States, or the President of India are not targets of this writ. The High Courts may also issue this writ in cases of violations of fundamental rights. When an alternative remedy is available, the Courts may choose not to grant this writ because it is a discretionary remedy.

Prohibition

Its meaning is "to forbid" or "to keep order." In cases of excess or lack of jurisdiction, it is given by a higher court to a subordinate court to enforce inaction in the jurisdiction. It is a writ that a superior court issues to a lower court or tribunal to direct them to carry out an action that is outside of their purview.

It is a preventative writ that can only be used against judicial and quasi-judicial authorities; administrative authorities, legislative bodies, and private people or entities cannot use it.

Certiorari

It is issued by the Supreme Court and High Courts to a subordinate court, tribunal, or quasi-judicial body often to overturn the decision of the latter. It means "to be certified" or "to be informed."

The following justifications can be used to issue it: 

(a) to remedy mistakes of jurisdiction (excess or absence of jurisdiction); and 

(b) in cases of legal errors.

If an individual's rights are violated, it can also be issued against administrative authorities. This writ is only accessible against inferior courts; it cannot be used against an equal or higher court.

Quo-Warranto

It refers to the "by what authority or warrant" or "by what warrants" clause.It is a judgement that the court issues against someone who usurps public office. It asks whether a person's invasion of public office is legal.It is a writ that is intended to prevent someone from serving in a public position that they are not qualified for. An unauthorized assumption of any position or usurpation of any public office by anybody is prohibited under the writ of quo warranto.

The basis for issuing this writ is either 

(a) the creation of a public office by legislation or by the Indian Constitution, or 

(b) the appointment of a person by statute. 

Neither a governmental office nor a private office may be the target of the writ.

PUBLIC INTEREST LITIGATION

The conventional wisdom is that only people who have a locus standi, or whose basic rights have been violated, are entitled to use Article 32's right to petition the Supreme Court. The Supreme Court has just ruled to loosen the long-standing locust standi norm. The court now allows public interest litigations at the request of civic-minded individuals for the enforcement of the constitution and other legal rights of any individual or group of individuals who are unable to seek relief from the court due to their poverty or socially or economically disadvantaged positions.

Union of India vs. ABSK sangh (Railway) 1981 Although it was decided that an unregistered association could file a writ petition under Article 32 for the resolution of a shared grievance. Access to justice through class actions, PILs, and representative processes is the current constitutional doctrine, according to Justice Krishna Iyer.

Judges in SP Gupta v. Union of India, 1982 Justice Bhagwati has remarked that in cases of violations of any constitutional or legal rights of any individual or group of individuals, the transfer case should be brought.

Any member of the public may maintain an application for an appropriate direction for writ in the high court under Article 226 or in case of a violation of any fundamental right to this court under Article 32, even if they are unable to seek relief from the court.In the following cases, the Supreme Court has expanded the application of Article 32 by issuing the necessary writs, orders, and directives based on PIL. 

1. Bihar blinding case.
2. Injustice done to children in jail.
3. Protection of pavement and slum dwellers of Bombay.
4. Payment of minimum wages.
5. Abolition of bonded labourers.
6. Protection of environment and ecology.

PIL Criticism

• It is claimed that if courts accept cases through letter, they will be inundated with litigation.
• It is claimed that there would be a delay in the resolution of many other crucial cases.
• Interference by the court through a PIL in executive and legislative matters is not warranted.
• The court lacks the power to implement its rulings. 

Although Justice Bhagwati had added a note of caution while extending the locus standi. He said that we need to be vigilant to ensure that a member of the public is behaving in a legitimate manner.

In an appropriate manner, but not out of any political or personal agenda. It demonstrates that the judges were aware that the liberal locus standi rule could be abused.