General Explanations

CONSTITUTIONAL REMEDIES: CONTENT WHICH MAKE FUNDAMENTAL RIGHT ALIVE

 

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MANISHEK  KUMAR  SINGH, City Academy Law College (Lucknow)

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 very heart of it,”

                                                                                                            Dr. Ambedkar

                                                ARTICLE 32&226 OF CONSTITUTION OF INDIA

INTRODUCTION:-

Imagine what if we all are provided with a society without law, a vehicle without brakes, a body without brain etc. but now the basic question is what will happen then, it can be imagined easily by everyone, that world will nevertheless worst and complicated then solving a physics problem with chemistry formulas. That is why our constituent assembly while drafting Part III of Constitution mentioned Right to Constitutional Remedies (Article 32- Article 35) to avoid such situation because we the humans are unpredictable no one can predict our next step therefore in order to control the ill-behavior and to protect the essence of democracy that is the general people from those people who attain power and authority in democracy (legislature, Executive) the constituent assembly vested the gift of Article 32 and Article 226 in the hands of the common people through Constitution so that no one can check it or challenge it.

ARTICLE 32

As everyone knows that India opted Parliamentary form of Government, where every section is involved in policy-making and decision making, so that every point remain transparent and to ensure fair representation of every section of the people. In such type of Democracy Judiciary plays a very important role and that’s why the principle of Judicial Review became an essential feature of written constitutions of many countries. The power of Judicial Review is incorporated in Art.226 & Art227 of the constitution insofar as the High Courts are concerned while in the case of Supreme Court it is vested in Art 32 and 136 of Indian Constitution.

Historically, the judicial branch has often been the sole protector of the rights of minority groups against the will of popular majority”

                                                                                    Diane Watson

 

 

Article 32 states:

  • 32(1) Guarantee to Remedy : right to move Supreme Court by “appropriate proceedings” for the enforcement of Fundamental rights.
  • 32(2) Power of Supreme Court to issue writs : in the nature of
  • Mandamus
  • Habeas Corpus
  • Prohibition
  • Quo-warranto
  • certiorari
  • 32(3) power of Parliament to confer the Power to issue writs to other courts
  • 32(4) Suspension of Fundamental Rights.

Article 32 as well as article 226 is basically a way to judicial Review and as per the case of Centre for PIL vs. Union of India[1] it was held that basic feature of Constitution cannot be curtained by act of Parliament and Constitutional provisions.

In the case of Rupa Ashok Hurra Vs. Ashok Hurra a five judge constitutional bench of the supreme court held some provisions and conditions for the court to entertain such a curative petition under its inherent power that are as follows:

  • Court reaffirms that litigants are barred on challenging final decisions.
  • But in cases of miscarriage of justice it would be its legal and moral obligation to rectify the error.
  • The petitioner will have to establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgement that adversely affected him.

Who can apply:-

Locus standi the traditional rule is that the right to move the Supreme Court is only available to those whose fundamental rights are infringed. But with the passage of time the above traditional rule of Locus Standi is relaxed by the recent rulings of Supreme Court.

  • B.S.K Sangh (Rly) vs. Union of India[2]
  • P Gupta and others vs. President of India and others[3]
  • Janata Dal vs. H.S Chowdhari[4]

After these rulings petition is also made in case of Public interest Litigation/social interest litigation. It was made cleared that any corporation or association whether registered or unregistered can file a petition in the case of violation of fundamental rights.

 

ARTICLE 226 OF INDIAN CONSTITUTION

Power of High Courts to issue any person or authority, including in appropriate case any Government Directions, orders or writs, for the enforcement of any of the rights conferred by Part III and for “any other Purpose.”

Article 226 also have the power to issue writs but it is limited to the territorial it has binding that is within that state. The ending statement of the concerned article that is “any other purpose” clearly explains that the Jurisdiction of a High Court is not limited to the Protection of the fundamental rights but also other legal rights.

In the case of L. Chandra Kumar vs. Union of India[5] it was held by the apex Court that the power of Judiciary over legislative action vested in the High Court under Art.226 and it is a basic feature of the constitution and therefore it cannot be ousted or excluded even by way of constitutional amendment. Locus standi is same as in the case of ARTICLE 32 of Indian Constitution.

DIFFRENCE BETWEEN ARTICLE 32 AND ARTICLE 226

                           ARTICLE 32                                   ARTICLE 226
1.       IT CAN ONLY DEAL WITH CASE OF FUNDAMENTAL RIGHTS INFRINGEMENT    IT CAN BE USED TO DEAL WITH CASE OF   FUNDAMENTAL RIGHTS AS WELL AS CONSTITUTIONAL RIGHTS.
2.      CAN BE SUSPENDED DURING EMERGENCY  CANNOT BE SUSPENDED DURING EMERGENCY
3.      IT HAS A LIMITED SCOPE AS IT CAN ONLY RESTRICTED TO FUNDAMENTAL RIGHTS  IT HAS WIDER SCOPE AS IT CAN BE USED TO DEAL WITH OTHER LEGAL RIGHTS
4.      IT HAS MUCH WIDER JURISDICTION THAT IS ALL OVER INDIA JURISDICTION IS LIMITED TO THE CONCERNED STATE AND ITS TERRITORY

 

 

CONCLUSION:-

The very safeguard provided to the Fundamental right through Article 32 and 226 is very essential and a landmark work for the constitution of India and also for the person of India. Without these two the fullest of development of an individual which is the aim behind the fundamental right can never be achieved. By enlarging the scope of article 32 and 226 Supreme court made a statement that law is dynamic. Without Judicial Review constitution, fundamental right and of course the democracy cannot be imagined because it holds the voice of individual and make the individual stand before the most supreme person.

 

Justice consists not in being neutral between Right and wrong, but in finding out the right and upholding it wherever found, against the wrong”

                                                                                          Theodore Roosevelt

[1] AIR 2011 SC 1267

[2] AIR 1981 SC 298

[3] AIR 1982 SC 149,

[4] AIR 1982 SC 149

[5] AIR 1997 SC 1125

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