Constitution: Right to constitutional remedies

 Contents

  1. Introduction
    1. Article 32 (1)
    2. Article 32 (2
  2. Directive Principles
    1. Differences between FUNDAMENTAL RIGHTS and DIRECTIVE PRINCIPLES
    2. Article 38
    3. Article 39

Introduction

Justice can be defended for fundamental rights. This implies that when one's fundamental rights are violated, they may seek judicial redress. The right to petition a court for its enforcement (Remedies for enforcement of rights given by this Part) is one of the fundamental rights recognised by the Constitution.

Article 32 (1)

‘The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.’ 

Therefore, the Supreme Court may be contacted in cases of fundamental rights violations. The Supreme Court's "writ jurisdiction" is what it is known as. Delhi is home to the Supreme Court, which has jurisdiction over the whole country of India. 

Article 141 : ‘The law declared by the Supreme Court shall be binding on all courts within the territory of India.’ 

Any individual who feels wronged because their fundamental rights have been violated has the right to file a case with the Supreme Court. This applies to both citizens and non-citizens when some basic rights, such those provided by Article 19 and Article 21, only apply to citizens. 

Article 32 (2)

‘The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.’
The Supreme Court may issue writs, which are instructions or directives, to make a basic right enforceable. The five different sorts of writs that may be issued are listed in Clause (2) of Article 32.
  • Writ of Habeas Corpus : It's a Latin phrase that translates to "you have the body." A person who has been imprisoned against their will and/or in violation of legal procedure is seeking freedom through the use of such a writ. It is filed to ensure the release of a person who has been held against his will and to ensure his right to personal liberty. To determine whether the detention was lawful, the court orders the detaining authority to turn over the person who is being held. Since the person is being held in custody or it is unknown where he is, any family member, acquaintance, or other person with information of the detention may contact the Supreme Court. A petition for the person's release may be submitted if they are held without being produced, as required by Article 22, clause (2), within twenty-four hours of their arrest. This is a fundamental right. A good example is Ummu Sabeena v. State of Kerala [(2011) 10 SCC 781].
  • Writ of Mandamus :  Mandamus is Latin for "command." A writ of mandamus will be issued against a person, authority, or organisation that is required by law to carry out specific tasks and whose failure to do so violates basic rights. The Supreme Court issues an order requiring the pertinent public official, state authority, or state agency to carry out an official duty in order to stop infringement of basic rights. For instance, the Mumbai Municipal Corporation is required by the Mumbai Municipal Corporation Act to maintain the city's streets. If a street is not cleaned, which leads to garbage collection, violating residents' fundamental rights to a decent environment and/or to health, a writ of mandamus will be issued against the Assistant Municipal Commissioner of that Ward. S.B. Vohra, Union of India v. [(2004) 2 SCC 150].
  • Writ or Prohibition :  The Supreme Court sends this writ to a lower court to stop it from doing something it doesn't have the power to do. It stops the lower court from moving forward with the case it already has. It tells a lie against a court or a group that acts like a court. For example, if the Magistrate's Court is trying a crime that only the Sessions Court can hear, the Supreme Court could be asked to make sure that the trial does not continue before the Magistrate.
  • Writ of Certiorari : This writ is similar to the Writ of Prohibition, but the lower court has already decided the case because it didn't have the power to do so. In a Writ of Prohibition, the lower court is still thinking about the case. In a Writ of Certiorari, the case has already been decided. A Writ of Certiorari is sent out to overturn, cancel, or set aside such an order. It can also be used to stop administrative actions that aren't in line with basic rights or natural justice principles. For example, if a decision that hurts someone is made without giving that person a chance to be heard, this goes against the 'audi alteram partem' rule, which says that a party should be given a chance to be heard before any decision is made. This is a principle of natural justice, and the decision needs to be overturned. See Hari Vishnu Kamath v. Ahmad Ishaque [(1955) 1 SCR 1104]. 
  • Writ of Quo Warranto : People want the Supreme Court to look into whether or not a claim that someone makes to a public office is legal. If the court agrees that the claim is valid, the person in that office will be removed from office. It gives the higher judiciary control over what the executive branch does when they appoint people to public offices. This is to make sure that someone who has a legal right to a public office doesn't lose it because of favouritism. The Constitution or a law must have made this public office or post possible. For example, a Writ of Quo Warranto could be used when a position created by a law has been filled without following the law's rules. See Renu vs. District and Sessions Judge [(2014) 14 SCC 50].
Under Article 226, not only the Supreme Court but also the High Courts have the power to issue these writs "to enforce any of the rights granted by Part III and for any other purpose." So, a petitioner can choose between going to the Supreme Court or the High Court to enforce fundamental rights. The words "for any other purpose" show that the High Court's writ power is broader than just protecting fundamental rights.

Directive Principles

Part IV of the Constitution, which is made up of Articles 38 to 51, is called "Directive Principles." We're going to look at a few important rules for giving directions. In this Part, the word "state" means the same thing as it does in Article 12,

What are Directive Principles

Article 37 defines Directive Principles – ‘The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.’
Directive Principles explain the goals and purposes of a Welfare State and promote the idea of social and economic justice. When running the country and making laws, the state has to keep the directive principles in mind. In Golak Nath vs. State of Punjab (1967) 2 SCR 762, the Supreme Court says, “In Part IV of the Constitution, the Directive Principles of State Policy are laid down. It enjoins it to bring about a social order in which justice, social, economic and political — shall inform all the institutions of national life. It directs it to work for an egalitarian society where there is no concentration of wealth, where there is plenty, where there is equal opportunity for all, to education, to work, to livelihood, and where there is social justice.” In Kesavananda Bharati vs. State of Kerala[(1973) 4 SCC 225], the Supreme Court observed,“Parts III and IV which embody the fundamental rights and directive principles of State policy have been described as the conscience of the Constitution…. Granville Austin says that the goals of the Indian social revolution were set out in the directive principles of State policy. Granville Austin, in a summary of how fundamental rights and directive principles work together, says that it is clear that the members of the Assembly made fundamental rights and directive principles to be the most important tools for making the big changes of the social revolution. He says "yes" when asked if they have helped move Indian society closer to the Constitution's goal of social, economic, and political justice for everyone. In conclusion, fundamental rights and directive principles go hand in hand. Their goals are the same: to bring about a social revolution so that a Welfare State can be set up, as envisioned in the Preamble.

Differences between FUNDAMENTAL RIGHTS and DIRECTIVE PRINCIPLES

Since directive principles can't be ruled on in court, they are qualified with words like "strive," "take steps," "endeavour," and "promote," which mean that the state has to pass laws to make them happen. The economic growth of the Indian state is important for the gradual realisation of directive principles. While holding in the negative that ‘right to work’ falls within Article 21, the Supreme Court noted in Indian Drugs & Pharmaceuticals Ltd. vs. Workmen[(2007) 1 SCC 408], “No doubt, Article 41 provides for the right to work, but this has been deliberately kept by the Founding Fathers of our Constitution in the directive principles and hence made unenforceable in view of Article 37, because the Founding Fathers in their wisdom realised that while it was their wish that everyone should be given employment, but the ground realities of our country cannot be overlooked.In our opinion, Article 21 of the Constitution cannot be stretched so far as to mean that everyone must be given a job. The number of available jobs are limited, and hence courts must take a realistic view of the matter and must exercise self-restraint.”  In 2005, the Central Government passed the Mahatma Gandhi National Rural Employment Guarantee Act to make the right to work more and more real.

At this point, it's important to talk about Article 31C, which was added by the Constitution (Twenty-Fifth Amendment) Act of 1971. It says that laws that give effect to certain directive principles are saved. Article 31C says that a law passed to make directive principles work can't be thrown out because it goes against Articles 14 and 19. But such laws can be challenged in court to see if they actually follow the directive principle they are supposed to enforce.

Article 38 : State to secure a social order for the promotion of welfare of the people

‘(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. 
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.’
Article 38 says that India is a Welfare State, which means that the government has to use its policies and laws to help people live better lives. It also shows that in order to make a fair society, the government, including the courts, should favour the weak.
“The challenges in these writ petitions compel us to remind ourselves that under our constitutional system courts are havens of refuge for the toiler, not the exploiter, for the weaker claimant of social justice, not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental right. No higher duty or more solemn responsibility rests upon this Court than to uphold every State measure that translates into living law the preambular promise of social justice reiterated in Article 38 of the Constitution.” [Azad Rickshaw-Pullers’ Union (Regd.) vs. State of Punjab : 1980 Supp SCC 601]
Clause 2 of Article 38 shows that the Indian government is a socialist one. It also puts a lot of emphasis on making the whole country more equal in all ways. It recognises that people are very different from each other and that communities in different parts of the country have different values. Article 38 says that the state has to come up with policies and pass laws to close this gap. For example, more and more people think that industrialization is the key to development, which means that the agricultural sector is often ignored. Article 38 says that the focus should be on balanced development, which means that both the industrial and agricultural sectors should be supported.

In continuation to Article 38, Article 39, through its seven clauses, especially clauses (b) and (c), further depicts the Indian state’s socialist character. Article 39 : Certain principles of policy to be followed by the State: ‘The State shall, in particular, direct its policy towards securing— 
  1. (a) that the citizens, men and women equally, have the right to an adequate means of livelihood; 
  2. (b)that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; 
  3. (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; 
  4. (d)that there is equal pay for equal work for both men and women; 
  5. (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; 
  6. (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.’
Any action of the state should further the intent contained in clause (b) and (c), namely, the equitable distribution of resources amongst the people. The Supreme Court has described clauses (b) and (c) of Article 39 as “a futuristic mandate to the State with a message of transformation of the economic and social order” [State of Karnataka vs. Ranganatha Reddy : (1977) 4 SCC 471].

The goal of clause (b) is to make sure that the community's material resources are shared among the people and used to help them. What does it mean when someone talks about the "material resources of the community"? To help it reach its goal, the words in clause should be taken in a broad, not a narrow, way (b). The phrase "material resources of the community" doesn't just mean natural resources. It includes all resources, whether they are natural or made by humans, and whether they are owned by the public or by individuals. [Sanjeev Coke Manufacturing Co. vs. Bharat Coking Coal Ltd.: (1983) 1 SCC 147]. What does it mean for something to be "divided as best to serve the common good"? The "principle of distributive justice" is shown in this phrase. "Distributive justice" means "to get rid of economic inequalities and fix the unfairness that comes from dealings or transactions between people who are not equal." State of Andhra Pradesh vs. Samatha: (1997) 8 SCC 191. Material resources cannot be arbitrarily apportioned, they should be allocated for enjoyment by all. It is important to keep in view that natural resources are limited, hence, the same should be utilised for public purpose, and not in private interest. In Victorian Granites (P) Ltd. vs. P. Rama Rao [(1996) 10 SCC 665], the Supreme Court states, “Article 39(b) of the Constitution envisages that the State shall, in particular, direct its policies towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Socio-economic justice is the arch of the Constitution. The public resources are distributed to achieve that objective since liberty and meaningful right of life are hedged with availability of opportunities and resources to augment economic empowerment.” This judgment negates legislation that depletes “the assets of the State for personal benefit of the vested interests, defeating the constitutional objective behind Article 39 (b) of the Constitution, the preamble and fundamental rights enshrined in the Constitution.”

For example, Brihanmumbai Electric Supply & Transport Undertaking (public sector) or Reliance Energy (private sector) turns water and coal, which are natural resources, into electricity, which is a material resource. However, the end product should be shared so that as many people as possible can benefit from it. To reach this level of distribution, what matters more than profits or revenue is how cheap and easy things are to get.

Clause (c) of Article 39 also promotes the concept of distributive justice. ‘Means of production’ includes the objects of production [natural resources and raw materials] and instruments of production [machines and tools]. “According to Encyclopedia Americana (1970 Ed., Vol. 9, p. 600) ‘economic systems are forms of social organization for producing goods and services and determining how they will be distributed.’ ”[Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225]Clause (c) calls upon the state to legislate to ensure that it is not the owner of the means of production, alone, who should profit – the gain should be dispensed amongst the workers and the public in the form of wages, taxes, etc.

What is a Welfare State and its nexus with Articles 38 and 39 is best summarised in the words of the Supreme Court in Lala Ram vs. Union of India [(2015) 5 SCC 813],
“A welfare State denotes a concept of Government, in which the State plays a key role in the protection and promotion of the economic and social well being of all of its citizens, which may include equitable distribution of wealth and equal opportunities and public responsibilities for all those, who are unable to avail for themselves, minimal provisions for a decent life. It refers to ‘greatest good of greatest number and the benefit of all and the happiness of all’. It is important that public weal be the commitment of the State, where the State is a welfare State. A welfare State is under an obligation to prepare plans and devise beneficial schemes for the good of the common people. Thus, the fundamental feature of a welfare State is social insurance. Anti-poverty programmes and a system of personal taxation are examples of certain aspects of a welfare State. A welfare State provides State-sponsored aid for individuals from the cradle to the grave…A welfare State is one, which seeks to ensure maximum happiness of maximum number of people living within its territory. A welfare State must attempt to provide all facilities for decent living, particularly to the poor, the weak, the old and the disabled i.e. to all those, who admittedly belong to the weaker sections of society. Articles 38 and 39 of the Constitution of India provide that the State must strive to promote the welfare of the people of the State by protecting all their economic, social and political rights. These rights may cover, means of livelihood, health and the general well-being of all sections of people in society, specially those of the young, the old, the women and the relatively weaker sections of the society. These groups generally require special protection measures in almost every set up. The happiness of the people is the ultimate aim of a welfare State, and a welfare State would not qualify as one, unless it strives to achieve the same.

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