Article 32-35 - Lecture notes 5 PDF

Preview

Summary

Notes...

Description

Right to Constitutional Remedies Article 32-35 Part III of the Indian Constitution provides for various Fundamental Rights. In the event of any Fundamental Right is infringed/ abridges, the aggrieved can approach the court for the enforcement of his/her Fundamental Right. The framers of Indian Constitution while providing various Fundamental Rights, also provided the remedial measures for enforcement of Fundamental Rights. The Supreme Court of India is custodian of the Fundamental Rights. The Supreme Court under Article 226 issues various writs for the protection of Fundamental Rights. The framers of Indian Constitution while providing various Fundamental Rights, also provided the remedial measures for enforcement of Fundamental Rights. The Supreme Court of India is custodian of the Fundamental Rights. The Supreme Court under Article 32 and the High Court under Article 226 issues various writs for the protection of Fundamental Rights. The topics discussed are, 1. Locus- Standi and public interest Litigation and Constitutional Remedies. 2. Writs- under Article 32 and 226 a. Writ of Habeas Corpus. b. Writ of Mandamus. c. Writ of Ceritorari. d. Writ of prohibition and e. Writ of Quo-Warranto 3. Special Leave to Appeal (Article 136) Locus Standi and Public Interest Litigation Locus Standi: The expression “Locus Standi” mean the Right to move the court. Generally, a person legal right is violated, alone has a right to move the court. However, there are certain circumstances, in which any member of the public have a right to move the court. Article 32 and 226 of Indian Constitution do not prescribe specifically such persons or class of persons, who have the right to

move the court. Thus, the matter of “Locus-Standi” lies within the discretion of courts (whether to adopt liberal or restrictive attitude). Thus, the traditional rule is, the person whose legal right is infringed can alone move the court. This narrow view leads to certain problems as stated below: 1. There may not be any one to challenge an arbitrary administrative action. Such arbitrary actions can be happily continued by Administrative Authorities. 2. In a developing country like India, most of the people cannot afford to move the court due to poverty and illiteracy. The narrow view, confining a particular person to move the court has been relaxed by the courts through ‘Public Interest Litigation’.

Public Interest Litigation: It is also known as social interest litigation. The concept of public interest litigation was introduced in Akila Bharathiya Soshit Karmachari Sangha v/s Union of India AIR 1981 SC 298 by Justice V.R. Krishna Iyer, wherein, an unregistered association of a writ petition under Article 32 of the constitution for the red vessel of common grievance. In simple words, PIL means any public spirited citizen can move/approach the court for the public cause by filling a petition; i. ii. iii.

The Supreme Court court under Article 32 of the constitution. In the High Court under Article 220 of the constitution. Under Section 133 Cr.P.C. before the court of magistrate.

Public Interest Litigation or social interest litigation today has great significance and draw the attention of all concerned. The traditional rule of Locus Standi that a person, whose right is infringed can file a petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now, the court permits PIL at the instance of public spirited citizens for the enforcement of constitutional right or legal rights.

Justice Krishna Iyer in Fertilizer Corporation Kamagar Union v/s Union of India, 1981, enumerated the following reasons for liberalisation of the rule of locus standi. 1. Exercise of state power to eradicate corruption may result in unrelated interference with individual’s right. 2. Social Justice warrants liberal judicial review of administrative action. 3. Restrictive rules of standing are antithesis to a healthy system of administrative law. 4. Activison is essential for participate public justice. Therefore, public minded citizen must be given an opportunity to move the court in the interest of the public. Further, the Supreme Court in S.P. Gupta v/s Union of India AIR 1982 SC 149, popularly known as judges transfer case, J.Bhagwati firmly established the validity of PIL. Since then, a good number of PIL petitions were filed. 1. In Ratlam Muncipality Case the Supreme Court allowed PIL petition for removal of public nuisance and directed the municipality to remove the public nuisance by providing drainage system irrespective of the financial position of the municipality. 2. Oleum Gas Leak Case, the Supreme Court allowed the PIL petition and evolved the principle of Absolute Liability. 3. In Kamalanath Case, the Supreme Court evolved the principle of public trust doctrine and condemned the damage to environment by misuse of political power. 4. In Ganga Pollution Case: The Supreme Court appreciated the petitioner M.C.Mehata, Advocate, Supreme Court for filling PIL petition in the Supreme Court against the union of India, Kanpur Municipal corporation for removal of public nuisance caused by pollution of Ganga water. 5. In Vellore Citizen Welfare Association Case: The Supreme Court allowed PIL petition filed by Vellore Welfare Citizens forum for large scale pollution caused by the tannery industry to the river polar in Tamil Nadu. I this case, the evolved the principle of sustainable development....