Right to Constitutional Remedies.
Right to Constitutional Remedies.
No Fundamental Right can have any value or significance unless and until it has the force of law behind it: This right implies that the citizens have a right to knock the doors of the courts of law, if they feel that any law of the legislature is against the letter or spirit of these rights or of a particular right and the courts are empowered to examine such requests, they can also declare such laws as ultra-wires of the Constitution.
This right is the heart and soul of the Constitution and without it, all rights will be meaningless. In order to enable the citizens to enjoy these rights in a proper and right way the High Courts, Supreme Court only have been empowered to issue writs like the Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warrant.
Hebeas Corpus implies that no citizen should be detained without judicial authority and also without intimation of the grounds of detention. In case the courts of law feel that the detention is unwarranted, it can issue directions for the release of detenue.
Right of Mandamus is utilized for public purposes and is issued by the courts of law when a specific request is made for the purpose. It is a sort of specific relief act. Prohibition writ forbids a person or institution from proceeding further in a particular case as it is feared that further proceedings will endanger natural ends of justice. The object of issuing of this writ is to provide immediate relief to the sufferer.
Certiorari is issued by the superior court to the lower court demanding records, etc., connected with a case pending before the lower court. Right of Quo Warrant is issued to a person in authority findings out from him the authority under which he is holding office or is in power. Article 226 gives this power to High Court and Article 32-to Supreme Court.
In the case of Gopal Das Vs. the Union of India, the Supreme Court held that no petition under Article 32 could lie if any person had been detained by a private individual. It is also provided that any petition under Article 32 could lie straight away in the Supreme Court without its passing through the High Court of any State.
In the case of Bhikaji Vs. the State of Madhya Pradesh, the Supreme Court, however, held that a ground which was not specifically taken in the petition could not be taken at the time of hearing. It was also held by the same court that only a person whose Fundamental Rights had been violated could make a petition under Article 32 of the Constitution.
Since the right to Constitutional Remedies is in itself a Fundamental Right, therefore, the Supreme Court cannot refuse to entertain an application moved for seeking the enforcement of a. Right and if any legislature attempts a legislation forbidding Supreme Court to entertain application under Article 32, such a law will be null and void and ultra-wire.
42nd Constitutional Amendment Act inserted a new clause as 32A in the Constitution. By this Article, it was provided that: Notwithstanding anything in Article 32, the Supreme Court shall not consider the constitutional validity of any state law in any proceedings under the Article unless the constitutional validity of any central law is also an issue in such proceedings.”
43rd Constitutional Amendment Act, however, omitted it. It was also further provided that : Any proceedings pending before the Supreme Court under Article 32 of the Constitution immediately before the commencement of the Act may be dealt with by the Supreme Court as if the said Article 32A had been omitted with effect on and from the lit day of February 1977.
According to critics Fundamental Rights have been given to us by one hand and taken by the other. The main line of argument of these critics is that these rights are not absolute. They feel that Conditioning of rights with duties has made these rights absolutely useless.
But Constitution makers were aware of the disruptive tendencies and they could not afford to risk independence by granting and extending absolute rights to the citizens e.g., P.B. Gajendragadkar, is however, of the view that the provision about constitutional remedies is a very distinguishing feature of our Constitution.