RIGHT TO CONSTITUTIONAL REMEDIES: THE BIGGEST WEAPON AGAINST VIOLATION OF HUMAN RIGHTS
Rights make individuals powerful, despite the fact that it isn't necessary that all citizens have equal resources and wealth one thing is without a doubt that they have it in terms of equality, all the countrymen inalienably and inherently by birth, have their fundamental rights.
Yet, to ensure and protect their rights or privileges people should have an alternative to enforce them. Article 32 works in that sense. With extraordinary power accompanies great duties and obligations, individuals utilize these rights as a weapon of harassment and different human rights violation and PIL become the Industry of vested interest. In spite of that, nobody can be permitted to encroach or infringe the rights of others. To guarantee the security of his/her rights individuals should know about the remedies which are provided in our constitution.
ARTICLE 32 OF THE CONSTITUTION
(1) The right to move to the Supreme Court by proper procedures for the enforcement of the rights given by this Part is ensured
(2) The Apex Court has the power to issue writs, in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, or orders or direction whichever might be suitable, for the requirement of any of the rights presented by the 3rd part of the constitution
(3) Without any bias to the power presented on the Apex Court by ( 1 ) and ( 2), Parliament may by law engage some other court to practice inside its jurisdiction all or any power exercisable by the Apex Court under ( 2 )
(4) The rights ensured by this article will not be suspended except as otherwise provided by this Constitution
ARTICLE 226 OF THE CONSTITUTION
Article 226, empowers the High Courts to issue, to any individual or authority, including the organization, directions, writs or orders, recollecting writs for the idea of habeas corpus, mandamus, certiorari, quo warranto, prohibition, or some other.
Article 226 sub-clause (2) provides that paying little heed to the seat of government or authority or residence of the individual isn't in the local jurisdiction of the High court still high court can provide direction, order to such government, authority, or individual if the purpose behind action totally or somewhat rises practically identical to its jurisdiction.
Article 226(3) states that the (i)When against a party any between interim order is given by the high court in the method for interim injunction or remain, or any procedures relating to an order under Article 226 without (a) giving a copy of the petition or copies of all documents of the interim order to such party and (b) offering opportunity to hear.
(ii) And if such party makes an application to the High court for the disposing of interim order or petition and outfits a copy of the application of vacation to the party in whose favor such interim order or to the counsel of the party.
(iii) Then the High court will dispose of the application
Inside a period of around fourteen days from the date on which it is received or, from the date on which the copy of such application is so furnished, whichever date is later or then again where the High Court is closed on the last day of that period, before the expiry of the next day on which the High Court is open
(iv) And if the application isn't so disposed of by the High court, the interim order will, on the expiry of that period, the expiry of the aid following day will be vacated.
Article 226(4) states that the power given to the high court to provide direction, writ, or order won't derogate the power given to the Supreme court under Article 32(2).
WRIT JURISDICTION UNDER ARTICLE 32 AND 226
Writs are the formal written document bearing the name of the court, or other legal authority to do some act, abstain or refrain from doing something. These writs have been acquired from England.
Under Article 32 and 226 of the Indian Constitution Apex court and the High courts have the power to give Writs separately. In India, the first writs were given by the Supreme Court at Calcutta later by the high court of Bombay and madras and since 1861 and 1937 by High Courts and Supreme Court of India.
The term habeas corpus is derived from the Latin expression which signifies "You should have the body". It represents habeas corpus Ad subjiciendum implies writ for securing liberty. By the assistance of this writ, Court directs the individual or any authority and state institution whosoever detained or wrongfully confines another person to deliver the body of the detainee before the court to decided by the court the validity, jurisdiction, and justification for such confinement. This writ aims to ensure judicial review of unlawful detention on liberty or freedom of an accused.
Article 22 of the Indian Constitution provides that, if the police or any authority arrested the individual is required to be presented before a magistrate within 24 hours of his arrest (barring the journey hours) and failure to do so would entitle the arrested individual to be released.
It is granted against the state as well as against the person, where an individual holds the unlawful detention of another person.
This implies what is your authority? This writ is utilized to Control the judicially Executive actions in the matter of appointment to public office under important provisions. This writ additionally helps to protect citizens from the holder of a public office which he has no Right and calls upon the holder to public office to the Court on what Authority he is holding the workplace is a question. If he isn't qualified for the office, the court guides the individual to vacate the office and announces the office to be vacant.
This writ assists with maintaining control over the Executive from making appointments in public office against law and protects the society from being denied of public office to which the society has a right.
Its meaning is derived from the Latin expression signifying "We Command". It is given by the Court to an authority directing to perform a public duty which is imposed on it by law. When a body omits to do Some act which it's bound to do, it can be commanded to do likewise. To issue this writ there should be a few conditions that are needed to be satisfied that the petitioner should have the legal right to the performance of the legal duty, the legal duty should be of public nature. The right which is to be enforced should be subsisting on the date of the petition and mandamus isn't issued in anticipation of injury.
It means "to be informed" or "To be Certified". It is issued by the Apex or higher Court to the lower Court or to the Tribunal either to pass on a case pending with the subordinate court to itself or quash the order for the subordinate court in a case. It is issued when there is an excess of jurisdiction or lack of jurisdiction or there is an error of law, anything in opposition to a procedure as established by law.
It means " order inaction" and it is issued by the Higher Court to the Lower Court or Tribunal Directing the judge or party to cease the litigation because the inferior court doesn't have jurisdiction to hear and decide the case. This writ is an extraordinary remedy. This writ can be given against the Judicial and Quasi-Judicial bodies.
PUBLIC INTEREST LITIGATION
PIL is a legal remedy initiated in a courtroom for the enforcement of public interest or general interest in which masses have a particular interest by which their legal rights affected. In PIL it isn't required that the aggrieved party itself approach the court anybody can present PIL even the court itself or by some other private party. It is likewise not compulsory for the exercise of the jurisdiction of the Court, the victim moved toward the court. PIL is the power given to the public by the Court through Judicial Activism, nonetheless, it is to be fulfilled to the Court that the petition filed is for public protection, and not based on the absence of legal merit. It is a cost effective remedy, and it is remedial in nature as anyone can get a remedy. It is the better use of law to advance the concept of human rights and cover the scope of broad public issues, expanded the meaning of fundamental rights, speedy process of trial, fulfilling the objective of social, economic, and political justice as mentioned in the preamble of the Constitution.
PROCEDURE TO FILE THE PIL
Any citizen of India can file a PIL for public welfare where the interest of the masses gets influenced under Article 32 in the Supreme Court or Article 226 in High Court and section 133 of CRPC under Court of Magistrate. .A court can regard a letter or telegram as a Writ Petition and makes a move upon it if a few conditions collateral to it should be fulfilled.
Public Interest Litigation has been logged similarly, as a writ appeal is filed. If PIL is filed in the High Court, two copies of the petition must be filed. 5 Copies would be filed in Apex Court and this evidence of service should be affixed on the petition. After that a Court fee of Rs. 50, for each number of the party, must be affixed on the petition.
LIMITATIONS TO ARTICLE 32
Under Article 33, the Parliament is empowered to make changes in the utilization of Fundamental Rights to military and the police are empowered with the obligation to guarantee appropriate discharge of their duties and obligations.
While the Martial law is in operation in any region, any individual may be indemnified by the Parliament, if such individual is in help of the central or state government for the acts of maintenance of law and order under Article 34 of Constitution of India .
Under Article 352 of the Constitution when an emergency is proclaimed, the ensured Fundamental Rights of the citizens stay suspended. Likewise, Fundamental Rights ensured under Article 19 are limited by the Parliament under Article 358 during the pendency of an emergency.
Article 359 confers the power to the President to suspend Article 32 of the Constitution. The order will be submitted to the Parliament and the Parliament may disapprove of the order of the President.
In India, for the first time, this concept was presented in the case Mumbai Kamgar Sabha versus Abdul Bhai Faizullah Bhai Justice Krishna Iyer permitted to file a PIL by a group of individuals in the interest of others. J. Iyer said a person of a group of individuals can move toward the Court for other people.
In Ram Singh versus Delhi, the Supreme Court of India decided that the high court should see the right, proposed to be fundamental should be kept fundamentally.
A mere threat to the encroachment of fundamental rights is sufficient to justify the issue of the writ if there should be an occurrence of Simranjit versus Union Of India
In Hussainara Khatoon versus the State of Bihar PIL was filed for the privileges of detainees and the attention of the Court was attracted to the trial pending upon them which came about into an excess of detention period which was exceeding the maximum punishment available under the law for which they were accused of.
M.C. Mehta versus Union Of India, an industry name the Shriram food fertilizer industry was delivering chlorine and caustic as a subsidiary of Delhi cloths mills limited. A significant spillage of oleum gas occurred from the industry from fourth to sixth December 1985 which brought about the death of a few innocent people and an advocate practicing in Tis Hazari Court died. The spillage was caused because of several mechanical and human mistakes in the unit. The district magistrate directed the Shriram Fertilizer to move the chemical out of Delhi district within 7 days. M.C. Mehta filed a PIL in the Supreme Court to get compensation for the individuals who have suffered various losses in the issue and requested to close down the unit and not to grant permission for restart.
In case of National Emergency imposed this Writ cannot be issues and individuals cannot seek the help of the court for illegal detention observed by the Apex Court in A.D.M Jabalpur versus Shivkant Shukla. Constitutional Bench of Five Judges gave this important judgment with a ratio of 4 out 5. This case was popularly known as Habeas Corpus Case.
In Jamalpur Arya samaj versus Dr D ram High Court of Patna observed that writ of Quo Warranto can not be issued against the private association and only public offices will lie under the scope of quo warranto.
In SP Gupta versus Union Of India. It was, held that any member of the group or public action with bonafide or good intention invokes the writ of Jurisdiction from Apex Court or High Court looking for redressal against infringement of the constitutional or legal right of an individual who because of social or financial or different reasons cannot approach the court.
Vishaka versus the State of Rajasthan. a lady, who was a social worker, was brutally assaulted while she was in the course of her employment, and for her; an NGO filed PIL in the Supreme Court for the protection of the rights of ladies at the workplace. The court acknowledged the appeal and set out the rules to protect the interest of ladies at the workplace and after that Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted dependent on the rules set by Apex Court in this case
It was held in Narayan v. Ishwarlal that the court would depend on the way of procedures in which the Jurisdiction of the Court of law has been executed.
The Constitutional Remedies that are provided to the citizens are the powerful orders with immediate impact. The Writ Jurisdictions which are given by the Constitution however have prerogative powers and are discretionary in nature but they are unbounded in their limits. The discretion is practiced on legal principles. the essential on which the constitutional system is based in absence of arbitrary power. . Subsequently, the decision should be taken based on sound principles and rules and ought not to be based on whims, fancies, or humor. If a decision isn't upheld by any standards or rules, such a decision is viewed as arbitrary and is taken not as per rule of law
PIL has a significant function to be played in the civil justice framework which gives a ladder to justice to disadvantaged individuals of the general public who are even ignorant of their rights. PIL can likewise add to great administration by keeping the government responsible. Finally, PIL likewise helps in spreading social awareness to individuals and educating and ensuring their human rights, giving a voice to the more fragile segments of the society, to the weak ones or individuals who are poor and can't move toward the Court because of the absence of economic or social funds.
The Indian Judiciary has likewise played an important part in keeping and perceiving the rights of the residents by guiding the government and its bodies to not abuse their power and protect the rights mentioned in the constitution of the individuals. However, it must be guaranteed that the Right to Constitutional Remedies like PIL should not be abused or misused by the individuals for their interest and publicity or some other malafide intention and must work according to the term in the interest of general society.
Mumbai Kamgar Sabha versus Abdul Bhai Faizullah Bhai 1976 AIR 1455
Ram Singh versus Delhi 1951 AIR 270.
Simranjit versus Union Of India AIR 193 SC 280.
Hussainara Khatoon versus the State of Bihar 1979 AIR 1369
M.C. Mehta versus Union of India 1987 AIR 1086.
A.D.M Jabalpur versus Shivkant Shukla 1976 SSC 521.
Jamalpur Arya samaj versus Dr. D ram 1954.
SP Gupta versus Union Of India 1981.
Vishaka versus State of Rajasthan (1997) 6 SCC 241
Narayan v. Ishwarlal AIR 1965 SC 1818
Article 32, 226 and 227 of Constitution of India.
NAME- GAURAV PUROHIT
AMITY UNIVERSITY RAJASTHAN
BBA LLB (H) 3RD YEAR