An independent and impartial judiciary is the sine qua non of the democratic system. In social life, different types of disputes crop up and they badly require peaceful settlement. It is the judiciary which performs this serene duty and, as such, it saves society from disorder and anarchy through the legal settlement of all disputes.
Particularly in a federal state, powers are distributed between two sets of government – central and provincial. Naturally, they are often at loggerheads regarding their actual jurisdiction. In such cases, the judiciary is called upon to settle the issue on the basis of an authentic interpretation of the Constitution.
For these reasons, the makers of the Indian Constitution have provided for an able judiciary and various attempts have been made to make it independent and impartial.
Above all, Part III of the Constitution contains six kinds of fundamental rights for the individual (the right to property was deleted in 1976 by the 42nd amendment of the Constitution). As a stark reality, these rights are ‘fundamental’, because they actually form the very root of the Constitution.
Moreover, they are ‘enforceable’ in the sense that if an aggrieved person feels that he has been unduly deprived of any of these rights, he can move the superior courts in order to restore it.
The Founding Fathers wisely felt that a right without proper remedy was totally meaningless and, this is why, the Supreme Court and High Courts have been empowered to act as the vigilant protector of such rights. They offer a guaranteed remedy whenever such a right is, in any way, transgressed upon, as noted by Durga Das Basu.
Thus, in this matter, the Supreme Court and the High Courts enjoy concurrent jurisdiction, because an affected person can proceed to either of them with his grievances. But there are two important differences. First, while the apex court can intervene by issuing a writ under Art. 32, only when a fundamental right is allegedly violated by a person or an organisation or a Government-organ but the High Court can, under Art. 226, issue such writs even ‘for other purposes’.
The significant point is that when a person moves the Supreme Court under Art. 32 of the Constitution, he resorts to a fundamental right in order to restore another fundamental right, because Art. 32 itself has been placed in Part III of the Constitution under the title of ‘Fundamental Rights’. As Patanjali Sastri, a former Justice of the apex court, put it, “Art. 32 provides a guaranteed remedy for the enforcement of these rights and this remedial right is itself made a fundamental right by being included in Part III (Ramesh Thapar v. Madras, 1950). In his words, ‘the Supreme Court is thus constituted (as) the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it, refuse to entertain application seeking protection against the infringements of such rights.” Significantly, an appeal may lie in this court without resorting to the High Court as held in MK Gopalan v. M.P., 1955.
For this reason, Dr MV Pylee has aptly opined that Art. 32 makes Fundamental Rights real and, as such, it forms “the crowning part of the entire chapter”. Significantly, Dr BR Ambedkar, the chief architect of the Constitution, held in the Constituent Assembly, “If I was asked to name the particular Article in this Constitution as the most important one without which the Constitution would be a nullity, I would not refer to any other Article except this one. It the very soul of this Constitution and the very heart of it.”
Thus, the Constitution has made the Supreme Court the chief custodian of fundamental rights. Though the High Courts can equally take up such cases, the apex court can hear appeals and quash the decisions of the former that involve the breach of such rights.
This is why, it can be stoutly claimed that the rights in India are not mere paper-rights – there are the superior courts which act as the watchful sentinel of these rights. As Dr NH Das claims, Art. 32 is extraordinarily important in this matter, because it eventually gives meaning and fulfillment to the other fundamental rights. Thus, the court has become the supreme guarantor of these rights – (Kashmir v. Madras, 1959).
However, the superior courts can protect these rights by issuing appropriate writs. These writs are five in number –
1) Habeas Corpus – Literally, it means ‘you shall have the body’. If a person thinks that he has unduly been arrested, he can move the superior Courts for a remedy. When the relevant court finds that the arrests or detention has been whimsical and unlawful, it can set aside the order of arrest in order to free the accused.
2) Prohibition – by such writ, the subordinate court is prevented from exercising a jurisdiction with which it is not legally vested. In other words, it is issued in order to keep them within their own ambit so that they cannot damage the interest of the people.
3) Mandamus – It means ‘we command,’ when an applicant suffers a loss for the dereliction of duty of a person or department, the superior courts can issue such writ for the purpose to ensure performance of public duty.
4) Certiorari – Certiorari is a writ which orders for the removal of a case from an inferior court to a superior one. It may save the petitioner from an excess or abuse of authority by a subordinate court. In other words, when a court takes up a case over which it has no jurisdiction, the victim may seek the necessary remedy by approaching the superior court.
5) Quo Warranto – It is issued to prevent an illegal assumption of any public office by anybody. Such appointment or promotion may mean the denial of rightful claim of others and, thus, it negates the right to equality as enshrined in Art. 14. In this way, it can prevent nepotism and favouritism of the Government.
Thus, these writs duly protect the fundamental rights of aggrieved persons and they allow our democracy to provide liberty, equality and justice as declared in the Preamble of the Constitution.
But, in this connection two points are of immense significance. First – The right to remedy can be suspended during National Emergency as mentioned in Art. 352. Thus, even for an insufficient reason, the president can, under Art.
359 (1), legally suspend this opportunity during such period. Secondly – the judicial remedy in our country is a costly, dilatory, hazardous and clumsy affair.
This is why average people cannot seek the judicial remedy or protection even when gross injustice is meted out to them. Often years are spent but justice remains beyond the reach of the affected persons.
But, in spite of such deficiencies, the superior courts have, by dint of this remedial measure, rendered a signal service for a huge number of affected people. In this sense, it is a judicial marvel which is unknown to most Constitutions of the world.
The writer is a Griffith Prizeman and Former Reader, New Alipore College