This article is written by Gunjeeta Jangra of 1st semester of National Law Institute University, Bhopal.
ABSTRACT
In order to maintain peace and harmony, the constitutions of democratic countries provide for the provision of fundamental rights. These rights aim to protect the basic rights of their citizens and provide equality and thereby, create the rule of law and help in the growth and development of the society. In India, fundamental rights are provided in part III of the Constitution of India which are justiciable in nature. This article aims to discuss the types of fundamental rights and constitutional remedies provided by the Constitution of India in the instance of their violation, in the light of judgements passed in two recent case laws of 2023.
Keywords: fundamental rights, the constitution of India, writs, equality, freedom, expression, exploitation, freedom of religion, cultural and educational rights, constitutional remedies.
INTRODUCTION
Fundamental Rights or basic rights are the base of a democratic system. The objective behind fundamental rights is to provide citizens of a country with basic rights and freedom in order to preserve their individual autonomy and personal liberty while keeping in mind the democratic principle to treat all with equality in society. They also help preserve the interests and rights of the minority communities whether caste or religion based and thereby, help the democratic countries to achieve an all-inclusive growth of the nation and its citizens. Following the same principle and keeping in view the interests of every section of the Indian society, the makers of the Constitution of India granted broadly six (originally seven) fundamental rights to its citizens which cover various rights under their horizon.
This research article aims to critically analyse the provision of the fundamental rights in the Constitution of India, and constitutional remedies for their violation while discussing the recent case laws pertaining to the fundamental rights. The Section II of this article briefly discusses the six fundamental rights provided by the Constitution of India to protect the basic interests of the citizens. Section III of the article explains, in brief, the enforceability of the fundamental rights and the constitutional remedies provided to the citizens by the Indian Constitution against violation of their fundamental rights. Section IV highlights the issuance of the five writs by the Courts. Section V deals with the recent two case laws of 2023 related to fundamental rights and briefly discusses the implications of the judgements passed in these cases by the Court of Law.
FUNDAMENTAL RIGHTS IN THE CONSTITUTION OF INDIA
The concept of the fundamental rights in the Constitution of India was adopted from the Constitution of the United States which contains the fundamental rights called the “Bill of Rights”. For this reason, the fundamental rights in India are also called the “Bills of Rights of the Indian Constitution”.[1] They are also termed the “Magna Carta” of the Indian Constitution because the “Magna Carta” or the “Charter of Rights” was the first document which listed the fundamental rights and was issued in 1215 by King John of England.[2]
The Constitution of India provides basic rights and freedoms, which are incorporated as the “Fundamental Rights”, individually as well as collectively, to its citizens. Some of them such as Equality before the law and equal protection of laws, Protection of life and personal liberty, Protection in respect of conviction for offences and many others are available to the non-citizen as well (except enemy aliens).
The fundamental rights are contained in Part III (Articles 12 to 35) of the Constitution of India. They are broadly classified into six categories which have been mentioned below.
- Right to Equality: Articles 14 to 18 of the Constitution of India deal with the “Right to Equality”.[3]
- Right to Freedom: Articles 19 to 22 of the Constitution of India deal with the “Right to Freedom”.[4]
- Right against Exploitation: Articles 23 and 24 of the Constitution of India deal with the “Right against Exploitation”.[5]
- Right to Freedom of Religion: Articles 25 to 28 of the Constitution of India deal with the “Right to Freedom of Religion”.[6]
- Cultural and Educational Rights: Articles 29 and 30 of the Constitution of India deal with “Cultural and Educational Rights”.[7]
- Right to Constitutional Remedies: Article 32 of the Constitution of India deals with the “Right to Constitutional Remedies”. [8]
Article 31 which originally was one of the seven fundamental rights provided for the “Right to Property” was omitted by the Constitution (Forty-fourth Amendment) Act, 1978 and Article 31(1) has been shifted to Article 300A as a new insertion in Chapter IV in part XII of the constitution.[9]
CONSTITUTIONAL REMEDIES FOR THE VIOLATION OF THE FUNDAMENTAL RIGHTS IN INDIA
The Article 32 of the Constitution of India was called “Heart and Soul of Constitution of India” by Dr. B.R. Ambedkar. This Article provides the right to constitutional remedies against the violation of the fundamental rights in India i.e. the remedies for the enforcement of rights conferred by the Part III of the Indian Constitution.[10] Article 32 provides the Hon’ble Supreme Court with the powers to issue “directions or orders or writs, writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.” in order to provide justice against violation of such rights.[11] Article 32 can only be exercised against the violation of the six fundamental rights and not for other legal or constitutional rights for which other remedies are set out under various laws.
The Constitution of India under Article 226 (Power of High Courts to issue certain writs) also grants the powers to the High Courts to provide remedies for the violation of the fundamental right in the form of orders or writs.[12] Though the scope of Article 226 is wider and broader than that of Article 32, as it provides people with the right to approach the High Court directly for the enforcement of other legal rights as well. Therefore, the fundamental rights are “justiciable”, which is enforceable in the court of law in India.
FIVE WRITS IN THE CONSTITUTION OF INDIA
“A writ is a command given by the court to a person or an authority or both to act or not to act in a particular way.”[13] This is a formal written order which is issued by a court having authority. There are five writs enshrined in the Constitution of India to provide justice to the people whose fundamental rights have been violated by the state, which have been explained briefly below:
- Habeas Corpus
The meaning of the legal term “Habeas Corpus” is “to have the body of”. This writ is issued by the court in the case of “illegal detention” that is not legally justified as it curtails the “Fundamental Right to Personal Liberty” under Article 21 of the Indian Constitution.
- Mandamus
The meaning of the legal term “Mandamus” is “we command”. This writ is issued by the court in order to enforce the public duties which are mandated by the law to the public authorities when they fail to do so.
- Quo Warranto
The meaning of the legal term “Quo Warranto” is “By what authority”. When this writ is issued, the person is required to show the authority to hold a public office in order to prove his appointment to the office is valid and lawful.
- Certiorari
The meaning of the legal term “Certiorari” is “to be certified”. This writ is “corrective” in nature and issued by the Supreme Court or High Court when a lower court, tribunal or other authority while deciding a particular case, exceeds or lacks its jurisdiction or violates the principles of natural justice or there is an error on the face of the records.[14]
- Prohibition
This writ is a “preventive remedy” provided when the proceedings in a particular case are still going on and no final order has been passed. This writ is issued by the superior court to the lower court, tribunal or other authority while deciding a particular case, it exceeds or lacks its jurisdiction or violates the principles of natural justice or there is an error on the face of the records. It is also called “stay order”.[15]
RECENT DEVELOPMENTS IN 2023: CASE LAWS RELATED TO THE FUNDAMENTAL RIGHTS
Patel Dharmeshbhai Naranbhai v. Dharmendrabhai Pravinbhai Fofani [(2023) SCC OnLine Guj 986]
In this case law, the Hon’ble Gujarat High Court decided the conflict pertaining to the “Right to free trade” under Article 19(1)(g) and the “Right to safe food” under Article 21. In the case, following the directions of the High Court in a plea, the authorities sealed the meat shops/slaughterhouses which were violating the statutory laws by not complying with food safety laws, selling meat in unhygienic conditions or through unlicensed shops.[16] Consequently, the petitioners opposed the same by arguing that there is no proper mechanism for operating the meat business and that such closure violates their Right to free trade under Article 19(1)(g).
Main Ruling of the Court
In this case, the court noted that “Right to freedom of trade may be a fundamental right, but not a carte blanche. The above laws are enacted and operate in public good and public interest.”[17] Further, on the question of the Right to Safe Food, the court observed that “The right to food with hygiene is also concomitant to Article 21 of the Constitution, as the right to food itself is.” “Intervention is not called for by the court when it comes to abiding by the food safety etc. norms. It would be an overriding principle that the public concerns of hygiene and food safety will have to prevail.”[18]
This case is an example of the provision that though the fundamental right to do trade/business under Article 19(1)(g) is provided by the Constitution, the same cannot be enforced against the interest of the general public. This falls under one of the restrictions to this fundamental right under Article 19(6) of the Constitution of India which provides that the State can impose restrictions on the right under Article 19(1)(g) if the same is in the interests of the general public. [19]
Ved Yadav v. State (NCT of Delhi), [ (2023) SCC OnLine Del 943]
The landmark judgement in the case Ved Yadav v. State (NCT of Delhi) favoured the fundamental rights of inmates which are often neglected by the authorities. The Hon’ble Delhi High Court examined the important question of the human rights of an inmate, “Is a prisoner entitled to the same compensation and facility from the State in case he is a convict in a criminal case which he would have been entitled to in case he was not a convict?”[20]
Main Ruling of the Court
The High Court opined that there is no employee-employer relationship between the prisoners and jail authorities as the inmates do not willingly enter into work employment agreement or contract and consequently, if any work-related injuries are suffered by the prisoners, they are entitled to remedies as “Constitution vision does not permit that any citizen should be rendered remediless in case of commission of an offence or infringement of a fundamental right or availing compensation for injuries even as a prisoner.”[21] Further, the Court observed that “justice for an inmate who has suffered disability due to an injury suffered which is work-related in the prison, has the fundamental right to get justice and compensation as per law.”[22]
The judgement in the present case reiterated the recognition of the right to equality, the right to life and human dignity of a prisoner who has been convicted and tried to give meaning to the existing rights of the prisoners.[23] The court also laid down guidelines regarding the remedy available against the work-related injuries suffered during the imprisonment by the inmates. While the basic human rights of the prisoners get often neglected, this is a landmark judgement which favoured the fundamental rights of prisoners.
CONCLUSION
The fundamental rights are the soul of the existence of democracy in a country. They protect the individual liberty of citizens of every section of the society, whether majority or minority and provide equal rights to every citizen before the law. In India, we have broadly six categories of fundamental rights in the Constitution of India. It is an established fact that “rights without remedies are no rights”. Following this principle in the Constitution of India, Article 32 provides for constitutional remedies against the violation of the fundamental rights and different types of writs are issued by the Supreme Court of India and the High Courts in such violation. The judgements of the Court of Law in the above-mentioned two recent case laws of 2023 clearly depict that fundamental rights provide equal representation and rights to every citizen even as a prisoner but the same is subject to certain restrictions in some instances as provided in the Constitution of India.
[1] Jagpravesh Singh, What are Fundamental Rights?, Legal Service India E-Journal, available at https://www.legalserviceindia.com/legal/article-5537-what-are-fundamental-rights-.html, last seen on 08/05/2023.
[2] Balaji, Which Part of the Constitution is called the Magna Carta?, available at https://byjusexamprep.com/upsc-exam/which-part-of-the-constitution-is-called-the-magna-carta, last seen on 08/05/2023.
[3] The Constitution of India.
[4] Ibid.
[5] Ibid
[6] Ibid
[7] Ibid
[8] Ibid
[9] Laxman, Emergence of Article 31 A, B and C and its validity, Legal Service India E-Journal, available at https://www.legalservicesindia.com/article/1435/Emergence-of-Article-31-A, -B-and-C-and-its-validity.html, last seen on 08/05/2023.
[10] Art. 32, the Constitution of India.
[11] Ibid.
[12] Art. 226, the Constitution of India.
[13] Harshkarad, 5 Types Of Writs In Indian Constitution, Legal Service India E-Journal, available at https://www.legalserviceindia.com/legal/article-9960-5-types-of-writs-in-indian-constitution.html, last seen on 08/05/2023.
[14] Sneha Mahawar, All you need to know about the writ of certiorari, ipleaders blog, available at https://blog.ipleaders.in/all-you-need-to-know-about-the-writ-of-certiorari/#The_writ_of_Certiorari, last seen on 09/05/2023.
[15] Michael Shriney, All you need to know about the writ of prohibition, ipleaders blog, available at https://blog.ipleaders.in/all-you-need-to-know-about-the-writ-of-prohibition/#Grounds_on_which_the_writ_of_Prohibition_can_be_issued, last seen on 09/05/2023.
[16]Patel Dharmeshbhai Naranbhai v. Dharmendrabhai Pravinbhai Fofani, (2023) SCC OnLine Guj 986.
[17] Ibid.
[18] Ibid.
[19] Art. 19(6), the Constitution of India.
[20] Ved Yadav v. State (NCT of Delhi), (2023) SCC OnLine Del 943.
[21] Ibid.
[22] Ibid.
[23] Ibid.
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