Fundamental Rights- 5 UPSC Notes | EduRev

Indian Polity for UPSC CSE

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Right to Constitutional Remedies mentioned in Art 32 of the Constitution and difference between the writ jurisdiction of Supreme Court and High Court

  • Article 32 provides a guaranteed remedy for the enforcement of Fundamental Rights. This remedial right is itself made a fundamental right, being included in Part III. The Supreme Court of India is constituted as the guarantor and protector of Fundamental Rights. It cannot, therefore, refuse to entertain, on technical grounds, applications from citizens seeking protection.
  • An application under Art 32 cannot be refused to be entertained on the ground that the petitioner has other legal remedies open to him. The Supreme Court can make any order appropriate to the merits and circumstances. 
  • Article 32 has been hailed as the corner stone of the entire edifice built up by the Constitution.
  • A Declaration of Fundamental Rights becomes meaningless unless there is an effective machinery for the enforcement of these rights. Hence, the framers of the Constitution were in favour of adopting special provisions guaranteeing the right to constitutional remedies.

Fundamental Rights- 5 UPSC Notes | EduRevFundamental rights

This, again, is in tune with nature, in general, of the various provisions embodied in the Chapter on Fundamental Rights. Article 32 has four sections. The first three sections taken together, make Fundamental Rights under the Constitution very real and as such, they form the crowning part of the entire chapter. Art 32 is not directly concerned with the determination of the constitutional validity of a particular legislative enactment. To make out a case under this Article, the petitioner has to establish: 

(a) That the law complained of is beyond the competency of the particular legislature, and 

(b) That affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order.

  • An outstanding feature of this Article is that an application under Art 32 lies in the first instance to the Supreme Court. Resort to the High Courts is not called for. The powers given to the Supreme Court under Art 32 are not confined to issue of prerogative writs alone but extend to issuing orders, writs or directions in the form of habeas corpus, mandamus, quo warranto, certiorari, and prohibition, as may be considered necessary for enforcement of the fundamental rights.
  • Article 32 has been held to be a ‘basic feature’ of the Constitution and so, it cannot be taken away by amendment of the Constitution, so long as the doctrine of ‘basic features’ remains.
  • Under Article 226, the High Courts have been conferred more extensive powers to issue writ and directions for the enforcement of ordinary legal rights, while the Supreme Court cannot do so.
  • Under Article 32, the Supreme Court can issue writs for the enforcement of fundamental rights alone.
  • Art. 32 guarantees the right to move the apex court for the enforcement of fundamental rights, and this right is in itself a fundamental right, while Art 226 confers on the High Courts the power to enforce these rights through appropriate writs.
  • The power of the High Courts to issue directions or writs for enforcement of fundamental rights is concurrent with Supreme Court and it will not be derogatory to the powers conferred on the Supreme Court in this regard. Thus, after an application has been refused by a High Court, a similar application can be made to the Supreme Court.

Right of residence and settlement 
All Indian citizens have the right to reside and settle in any part of the territory of India in terms of Article 19 (1) (e). The significance of this provision is to remove all internal barriers within the country or any of its regions. Any restrictions on this fundamental right must fulfill the following conditions as otherwise, they may be declared as unconstitutional, and, therefore, void.
(a) They must be imposed by law.
(b) They must be reasonable and
(c) They must be either in the interests of the general public or meant for the protection of the interests of any Scheduled Tribe. [Art. 19 (5)].

The Supreme Court of India has held, in a case in 1964, (State of U.P. Vs Kaushalya) that order to the effect that a prostitute should remove herself from the limits of a busy city and a restriction placed on her movements and residence was a reasonable restriction and valid under Art. 19 (5).

Limitations imposed on Fundamental Rights 
The Constitution allows Parliament to impose reasonable restrictions on some of the fundamental rights. It is for the judiciary to determine the reasonableness or otherwise of such restrictions. During the proclamation of emergency, certain rights can be restricted or suspended.
(i) The right to move any court for the enforcement of all or any of the fundamental rights, except the one relating to the protection of life and personal liberty, can be declared suspended by Presidential order.

(ii) If the proclamation of emergency is on the ground of war or external aggression and not armed rebellion, provisions of Article 19 relating to freedom of speech and expression etc. are automatically suspended and would continue to be so for the period of emergency.

Fundamental Rights- 5 UPSC Notes | EduRevRestrictions over Freedom of speech and expression

(iii) The fundamental rights shall cease to restrict the power of the State to make any law or to take any executive action which the State is otherwise not competent.

Parliament has been given the power to modify or restrict the fundamental rights in its application to the members of Armed Forces and forces dealing with civil order and persons employed in intelligence agencies and in the telecommunication system of the Armed Forces and intelligence agencies. When martial law is enforced in an area, Parliament may by law indemnify any person in the service of the Union or the State for any act done by him in connection with the maintenance or restoration of order in the area.

Present status of rights of property

  • The Fundamental Right conferred by Art. 31 (right to property) has been modified six times, by the 1st, 4th, 17th, 42nd and 44th Amendments, the last one virtually repealing Art. 31. Art. 300 A was substituted in its place.
  • Government found it difficult to push through its programme of agrarian reforms by reason of adverse judicial pronouncements. This resulted in the 4th Amendment Act, 1955, affecting property rights.
  •  When the Central Government nationalised 14 commercial banks in 1969, the Supreme Court held that the Bank Nationalisation Act was unconstitutional, and struck it down as invalid, on the ground that it violated Art. 31(2). In the Privy Purses case too, the Court held that the order was invalid. These strictures led to the passing of the 25th Amendment Act (the validity of which was questioned in the Kesavananda Bharati Case).
  • The result of the 42nd Amendment Act was that, under Art. 31 (c), no law passed by Parliament for giving effect to any of the Directive Principles could be challenged on the ground that it was inconsistent with (or took away or abridged) the fundamental rights conferred under Art. 14, 19 and 31 of the Constitution.
  • A new Chapter was added to Part 12 and Article 300A introduced, which reads: ‘No person shall be deprived of his property saved by authority of law’.
    It is available to citizens and corporations. The law under Art. 300A passed by a competent legislature, must be fair and just and should not violate Arts. 14, 19, 26 or 30. The right to property is only a legal right now.

(a) Statute: A statute is a law passed by a legislative body and set forth in a formal document. In its primary meaning, it is synonymous with an Act of Parliament. It refers to ‘written’ as opposed to ‘unwritten law’.

(b) Customary Law: Custom is one of the sources of ancient law. A custom has the force of law and will be recognised by courts if it is long established and clearly recognised and is not against any statutory law or against public policy. Hindu law before the enactment of the code bills was enforced by the British Courts on the basis of custom and usage and interpretation of ancient Hindu texts like Manu Smriti.

(c) Ordinance: An ordinance has the same force and effect as an Act of Parliament. It is required to be laid before Parliament and ceases to operate at the expiration of six weeks from the reassembly of Parliament. An ordinance can be withdrawn by the President by any time. The President of the Union and the Governors of States have legislative power to promulgate ordinances.

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