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