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Evolution of Fundamental Rights and Constitutional Remedies

In 1919, when Rowlatt Act was passed, this act provides extensive power to the British Govt. and police to arrest and detain individual indefinitely. It was in opposition of this act mass campaign of non-violent civil disobedience were held by public throughout the country demanding guaranteed civil freedoms and limitation on govt. power.

Demands of such rights and a responsible govt. had been made earlier also in response to which various acts has been passed from time to time such as Indian Council Act, 1892, Indian Councils Act, 1909 (popularly known as Morley-Minto Reforms named after the then Governor General and Secretary of State resp.), Government of India Act, 1919 (popularly known as Montagu-Chelmsford Reforms named after the then Secretary of State for India and the Viceroy).

But all of these acts and various other acts had lacked something or other and therefore fail to fulfil the demands of the people. With the passage of time demands of people increase and a demand for separate nation by Muslim League had been made. All attempts to brought settlement and resolve the issue were failed and on 3 June, 1947 Lord Mountbatten issued a statement that partition was the only solution to the problems arising in the nation.

After partition while framing Constitution of India most of the features has been adopted from the Government of India Act, 1935 and many other features of the Constitution have been borrowed from the various Constitutions across the globe such as provision of Directive Principles of State Policy has been borrowed from Irish Constitution, amendment procedure and election of Rajya Sabha members from South Africa, federal structure from Canada, ideals of Liberty, Equality and Fraternity (contained in the Preamble) from France, Parliamentary form of Govt. from U.K. and various other features has been borrowed from different Constitutions across the globe.

In 1931, during Gandhi-Irwin pact Pt. Jawaharlal Nehru adopted resolution on fundamental rights at Karachi Session along with National Economic Program committing I.N.C. towards defence of fundamental civil rights and socio-economic rights. Earlier demands of fundamental rights and also a significant incidence which happened on 10 December, 1948 when United General Assembly adopted Universal Declaration of Human Rights and called upon its members to adopt this feature in their Constitution increases the value of these rights and later having inspired from this, the feature has been introduced in the Constitution of India.

These Fundamental Rights have been enshrined in the Part-III (Articles 12-35) of the Constitution of India. The name of these rights i.e. �Fundamental Rights' is evident that these rights are so essential and fundamental that they guaranteed some of the very basic rights which needs to be protected at any cost such as right to life and various other freedoms. They ensure protection against arbitrary action of the State via. Supreme Court and High Courts.

Now, since these rights are so important and given a special place in our Constitution, does this means that these are absolute in nature? Answer to this question is No, these are not absolute in nature and can be suspended during the proclamation of emergency. However, not all rights are suspended during the emergency, Articles 20 (Protection in respect of conviction for offences) and 21 (Protection of life and personal liberty) remain in operation and rest all are suspended.

But what if someone's right get violated when no emergency is proclaimed?
Does an individual have any remedy against the violation of his/her fundamental right?
Yes, a right without a remedy is no right at all, this phrase is very true in its meaning and the same can be understood with the help of this famous legal maxim �ubi jus ibi remedium' which means, �where there is right there is remedy'. In Constitution of India such remedies are provided by the means of Articles 32 and 226. Like in England, remedy of habeas corpus is called bulwark of liberties, in India Article 32 has been described by Dr. B. R. Ambedkar as the heart and soul of the Constitution.

In his words, he stated:
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. It is the very soul of the Constitution and the very heart of it�

We can infer from the words of Dr. B.R. Ambedkar how he personified this article with the human body as describing it as the heart and soul of the Constitution. Just like without heart and soul a human body can't afford to survive similarly without this Article the Constitution won't survive any long. Under this, one can approach directly to the Supreme Court for the enforcement of the rights conferred by Part-III of the Constitution.

Another important point is that the very nature of this Article, the point which gives it more weightage is that this itself is a fundamental right. Though courts can be approach even in the absence of this article but the fact that it provides for directly move to the apex court of the country and also a fundamental right assigns special significance given to the fundamental rights in the Constitution which has been further recognized and strengthened by declaring this article as part of basic structure of the Constitution.

Since, any law in derogation with fundamental right is void, the court in Prem Chandra Garg v. Excise Commr.[1] had recognized its special position in the Constitution well before giving the doctrine of basic structure.

This privilege to approach directly to the Supreme Court had been reiterated by Supreme Court in Romesh Thappar v. State of Madras[2] when petitioner directly came to the apex court for the enforcement of the fundamental right and the then Attorney General contended that as a proper procedure one should approach first High Court under Article 226 but the court rejected this contention and said that as opposed to Article 226, Article 32 confers fundamental right on individuals to approach directly to the apex court in case of infringement of fundamental right.

Article 226, however, has been recognized as having wider scope than Article 32 which can be understood from the wording of the Article where it is used as, issuance of orders or writs for the enforcement of the rights conferred by Part III and for any other purpose, which implies that the scope of Article 226 is wider than that of Article 32 and not restricted to only Part III. There are five writs which the High Courts and the Supreme Court can issue for the purpose of enforcement the rights of individuals.

Types of Writs

As it was mentioned earlier that writs can be issued by the High Courts under Article 226 and by the Supreme Court under Article 32 for the enforcement of fundamental rights of individuals. There are five writs which these courts can issue to give relief or for enforcement of fundamental rights of the individuals such as habeas corpus, quo warranto, mandamus, prohibition and certiorari.
  1. Habeas Corpus:

    Habeas Corpus, means �you may have the body�, this writ is of nature calling upon for reason for the confinement or detention of an individual who is confined without any legal justification. The court seeks to know the reason behind the confinement of any individual by the other and if no legal justification be presented before the court then the person so confined be ordered to be released immediately. The point which must be taken care of is that whether the detention is legal or illegal, if the detention is found to be legal then writ can't be issued, or vice-versa.

    An application for the habeas corpus can be made by the person in confinement or by any other person on his behalf. This is evident from the judgement of Kanu Sanyal v. District Magistrate, Darjeeling,[3] in which Bhagwati J held that the production of body of person so detained is not essential in this writ what matters is the liberty of the individual detained illegally.

    Another important case in this is that of A. D.M. Jabalpur v. Shivkant Shukla,[4] though the decision is widely criticized but is a significant case regarding the writ of habeas corpus. In that case the majority decision held that no person has any locus standi to move any writ petition for habeas corpus during the proclamation of emergency to challenge the legality of an order of detention under the Maintenance of Internal Securities Act, 1971. Justice Khanna gave a powerful dissent stating that individuals right to approach the court for the implementation of the statutory rights can not be taken away by Article 359(1).
  2. Quo Warranto:

    Quo Warranto means �by what authority�, this writ is of nature where a person is prevented from assuming any public office or position on which (s)he has no right to do so. Where a person holds or usurped any public authority without any legal authority the said person can be called upon by the court to justify the court his claim for holding such office. If the person so holding failed to justify his claim then the court can pass an order to oust him/her from holding that office.

    However, for the issuance of writ of quo warranto the office in question must be of public nature. Public office can be said to be created under the Constitution, any Statute or Legislation or any office in which public interest is vested. An application of the writ of quo warranto can be maintained by any person even though he himself doesn't has any interest of his own.

    In the case of G.D. Karkare v. T.L. Shevde[5] the petitioner invoked this writ challenging the then Advocate General on the allegation that he didn't fulfil the required qualification needed for the office of Advocate General and had intruded into the office of Advocate General.
  3. Mandamus:

    Mandamus means �we command�, this writ is of nature where the superior court can order any government, public authority, lower court, tribunal, corporation to do or not to do any act which they are oblige to do or not to do but they aren't doing or doing i.e. acting contrary to what they are supposed to do.

    However, such duty to act or not must be of public nature and not of private, private duty can't be enforced with the help of mandamus. Such public duty can then be created by the Constitution or by any Statute. However, if any company is formed for the purpose of some public responsibilities to be fulfilled by it then in that case this writ of mandamus is allowed.

    There are some limitations regarding the issuance of writ of mandamus such as this writ can't be issued against the Head of the State(s) i.e. the President and the Governor nor can it be used to direct the Legislatures to enact a law or to not enact a law.
  4. Prohibition:

    As the name suggests this writ is used by the Supreme Court or the High Court towards the subordinate courts or tribunals possessing judicial or quasi-judicial authority ordering them to refrain from acting beyond their powers or when they about to act beyond their jurisdiction. This writ can be issued only to the body having judicial or quasi-judicial authority and not against any administrative authorities, legislative bodies or any individual.

    Therefore, three essentials required for the issuance of writ of prohibition are:
    1. There must be a judicial or quasi-judicial body
    2. This body is acting beyond its jurisdiction, and
    3. This writ is issued only when the matter is pending before the court

      This writ can be said to be a good example of English proverb, �prevention is better than cure' therefore, we can say it is of preventive in nature rather than curative.
  5. Certiorari:

    Certiorari means, to be more fully informed, this writ is of nature issued to subordinate judicial or quasi-judicial body quashing their orders when they took in excess of their authority or for the purpose of transmitting the record of proceeding pending with them for scrutiny. Since, this writ is issued against judicial or quasi-judicial, if any administrative body took decision without having any quasi-judicial authority then in such a case the writ of certiorari can't be issued against the administrative body, however, to arrive at a decision or if the administrative body is vested with quasi-judicial authority to decide matters judicially then in such a case the writ of certiorari can be issued against the said authority.

    As stated earlier also this duty can be vested in the body through some statute or through the Constitution itself. Obviously, the decisions of lower courts can be quashed by the respective High Court of that State and that of any High Court by the Supreme Court.
This writ is also issued when a decision is taken violating the principle of natural justice.

Two principles of natural justice have been classified under the traditional English law which are:

  1. Audi Alteram Partem, means, both the parties should be given fair chance of hearing.
  2. Nemo Judex In Causa Sua, means, no person can be judge in his own case
The rule of natural justice is not restricted to only judicial or quasi-judicial body but can extended to the administrative body also in some circumstances for e.g. in A.K. Kraipak v. Union of India[6] the Supreme Court extended the application of principles of natural justice to administrative functions when it is found that one of the members of the selection committee to the Indian Forest Service was also the candidate for the same.

In that situation the Supreme Court quashed the selections since the board could not be said to acted in a �fair' and �just' manner.

Also, this writ can be issued in case of error of law, which means if it is required to examine law which is disregard or ignored then in such a case this writ is available to correct that error but an error of fact howsoever grave it is it can't be corrected by the writ of certiorari.

This writ can be said to be curative in nature.

Distinction between Prohibition and Certiorari

Both the writs of Prohibition and Certiorari are available as a remedy when there is a violation of fundamental right or any legal right (in the case of High Courts). Also, they both looks similar but there is a difference between them to be noted carefully. This is as to at which stage of the proceedings these can be available. Former is available when the proceeding is going on and the High Court or the Supreme Court can issue this writ forbidding to proceed further while the latter is available when the proceedings had done and the court ask to review for scrutiny or even to quash it.

India has really walked long for its freedom and the major incidences and struggles through which India attain independence can be found between the period of 1858-1947 i.e. almost a century. It is evident that the demand for the fundamental rights arise with the demand of a responsible govt. during the colonial era and with time it goes increasing, which ultimately has been fulfilled while the adoption of the Constitution. With the establishment of fundamental rights, their protection and remedies also be provided under the Constitution. Significance of these rights has been reiterated by the courts of India from time to time with the help of different cases.

For protection of these rights Articles 32 and 226 have been inscribed in the constitution under which court can issue various writs provided under these articles such as habeas corpus, mandamus, prohibition, quo warranto and certiorari. Article 226, however, has been of much scope than that of Article 32 but this doesn't diminish the importance of Article 32, it is not only just an Article but is a fundamental right in itself.

First, being used for the immediate release of a person from illegal detention, second, when any govt authority act contrary to what they are supposed to, third to stop any judicial or quasi-judicial authority acting beyond their powers while the case is going on i.e. when the case is not decided, fourth one is to prevent someone from holding any public office which he/she is not entitled to hold or to ask the reason for holding any such office, and the last is used to quashed the orders of any judicial or quasi-judicial body acted beyond their powers.

Some of the writs are of preventive in nature like that of Prohibition and some of curative like Certiorari. Both of these writs, however, looks similar but the former one is used when the case is in deciding state and the final verdict hasn't been pronounced by the court but the latter one is used when the case is already decided or when the court has pronounced its verdict.

These writs, however, can be issued against the public authorities and not in private cases like enforcement of contracts or when any public duty hasn't been fulfilled. Thus, any private matter can't be sorted out with the help of these writs.

  1. AIR 1963 SC 996, 999
  2. AIR 1950 SC 124
  3. AIR 1973 SC 2684
  4. AIR 1976 SC 1207
  5. AIR 1952 Nag 330
  6. AIR 1970 SC 150

    Award Winning Article Is Written By: Mr.Keshav Sharma

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