(FUNDAMENTAL RIGHTS)
PART - 2

Definition of State : (Article - 12)

It includes Government and Parliament of India, that is, executive and legislative organs of the Union Government. Government and legislature of states, that is, executive and legislative organs of state government. All local authorities, that is, municipalities, panchayats, district boards, improvement trust etc. All other authorities, that is, statutory or non-statutory authorities like LIC, BHEL, SAIL, GAIL etc. or even a private body or an agency working as an instrument of the State.

It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.

Article - 13 : Laws inconsistent with Fundamental Rights

Doctrine of Judicial Review: All law that are inconsistent with or in derogation of any of the fundamental rights shall be void. Supreme Court (Article 32), High Court (Article 226) can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.

Law:

• Permanent laws enacted by the Parliament or the State Legislatures'
• Temporary laws like ordinances issues by the president of the state governors;
• Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and
• Non-legislative sources of law, that is, custom or usage having the force of law.

Article - 13: with respect to Constitutional Amendment Act

Constitutional Amendment Act is not a law and hence cannot be challenged, it was the position till 24th April 1973. However, the Supreme Court held in the Kesavananda Bharti case (1973) that a Constitutional Amendment Act can be challenged on the ground that it violates a fundamental right that forms a part of the 'basic structure' of the Constitution and hence, can be declared as void.

Article - 32: Right to Constitutional Remedy

According to Dr. B.R. Ambedkar, mere declaration of fundamental right is meaningless without providing a effective machinery for their enforcement. Hence, Article 32 : right to remedies for the enforcement of the fundamental rights of an aggrieved citizen.

Right to get the Fundamental Rights protected is in itself a fundamental right making the fundamental rights real. That is why Dr. Ambedkar called Article 32 as the very heart and soul of the Constitution - 'an Article without which this constitution would be a nullity'.  Supreme Court (under Article 32) : is a basic feature of the Constitution, hence it cannot be abridged or taken away even by way of an amendment to the Constitution.

Article 32 contains the following four provisions:

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed.
• The Supreme Court shall have power to issue directions or orders or writs any of the fundamental rights.
• Parliament can empower any other court to issue directions, orders and writs of all kinds (not HC, already under 226).
• The right to move the Supreme Court shall not be suspended except by President during a national emergency (Article 359).
• Supreme Court has been vested with the 'original' (direct approach with or without appeal) and 'wide' (not only orders, directions but also writs) powers for to provide a guaranteed, effective, expedious, inexpensive and summary remedy for the protection of the fundamental rights.
• Only Fundamental Rights can be enforced under Article 32 and not any other like non-fundamental constitutional rights, statutory rights, customary rights etc.
• Jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court Article 226. (direct approach to High Court or Supreme Court). Where relief through high court is available under Article 226, the aggrieved party should first move the high court.

Writs are total five in number:

• Supreme Court (32) and the High Court (226) can issue writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
• Parliament (under Article 32) can be empower any other court to issue these writs (not done till date).

• Power with respect to writ jurisdiction

  • Limited to fundamental rights for supreme court (narrower), but both fundamental rights and Legal rights for High Courts.

  • For Supreme Court territory is wider as includes entire India

  • High Court may refuse to issue writs and 226 is not fundamental right, but Article 32 being a fundamental right itself, Supreme Court cannot (Hence, Supreme Court is ultimate defender and guarantor of fundamental rights.

1. Habeas Corpus: 'to have the body of'. Order issued by the court to a person who has detained another person, to produce the body of the latter before it. Examines the cause and legality of detention. Set free it detention is found to be illegal. Protection of individuality liberty against detention.

   • It is both against State and Private Citizen and Principle of Locus Standi does not apply. Writ is not issued (a) lawful, (b) contempt of a legislature or a court, (c) detention is by a competent court, (d) outside the jurisdiction of the court.

2. Mandamus: 'we command'. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.

   • Filed only by aggrieved person (Principle of Locus Standi applies).

   • The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president, governor, chief justice of a high court acting in judicial capacity.

3. Prohibition: 'to forbid'. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding/usurping its jurisdiction.

   • The writ of prohibition can be issued only against judicial and quasi-judicial authorities.

4. Certiorari: 'to be certified/informed'. It is issued by a higher to a lower court/tribunal either to transfer a case or to squash the order. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.

   • Till recently, the writ of certiorari could be issued against judicial, quasi-judicial authorities and administrative authorities. Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.

5. Quo-warranto: 'by what authority or warrant'. It is issued by the court to enquire into the legality of claim of a person to a public office, preventing illegal usurpation of public office by a person.    

   • The writ can be issued only in case of a substantive public office of a permanent character created by a statue of by the Constitution. It cannot be issued in cases of ministerial office or private office.

Present Position of Right to Property

Originally fundamental rights Article 19(1)(f) guaranteed to every citizen the right to acquire, hold and against deprivation of his property. State can acquire on two conditions: (a) it should be for public purpose, and (b) it should provide for payment of compensation (amount) to the owner.

Lot of controversy merged. Many amendments done which introduced Article 31 A, B, C to prevent Judicial Review of certain laws. So, finally 44th CAA, 1978 removed repeating Article 19(1)(f) and Article 31 from Part III. Article 300A in Part XII under the heading 'Right to Property'. It provides that no person shall be deprived of his property except by authority of law. Thus, the right to property still remains a legal and a constitutional right. Not a Fundamental Right as it is not a part of the basic structure of the Constitution.

• It can be regulated i.e. curtailed, abridged or modified merely by an ordinary law of the Parliament (no CAA needed).
• Protection only against executive action (not legislative).
• No Guaranteed right to compensation in case of acquisition or requisition of the private property by the state.

But since the law has been introduced now; so it cannot be done.

What is the Exception to state acquisition

These are the two cases where compensation is guaranteed in case of acquisition requisition of the private property by the Stat are:

• Whe the State acquires the property of a majority educational institution (Article 30); and
• When the State acquires the land by a person under his personal cultivation and the land is within the statutory ceiling limits (Article 31 A).