Showing posts with label Rule of Law. Show all posts
Showing posts with label Rule of Law. Show all posts

MY DEFINITION OF LAW

Law is the medium through which the society and the people living within the society gets bound by certain society manifesting rules, which controls human behavior in rightful way by putting particular limitation over the acts of the people living in the society. 
We humans are social being, we are all depended on each other while living in the same society. When so many people live together, there is bound to be some kind of fights, different kinds of perspectives are supposed to clash against each other and create anarchy. That time, it gets crucial to have some kind of rules to abide by; and law plays significant role on that purpose. 

In my opinion, when we create law with compassion, ethics, and with cognitive empathy, only then the best version of Law can be formulated. Law should not be just some bundle of rules that one gets bound to it, law should be like the light which upholds the highest human morals, ethics, human compassion, and cognitive empathy. When law succeeds to uphold all the qualities, it will be capable to control all the crimes in the society and change the society for the better by changing mentality of the people staying inside the society. Law should be seen as the light in the darkness, it is the only medium which is capable of ending darkness of anarchy and crimes in the world, by filling it up with the light of justice, and by ensuring a society where empathy and human compassion can be established with the right use of law.

THE EFFECT ON RECIPROCAL RELATIONSHIP BETWEEN STATE & ITS CITIZENS

A State’s wellbeing largely depends on the reciprocal relationship between the State and its citizens; and to keep the relationship smooth, law plays an important role in that. A State is run by particular laws and the citizens living within the State are bound by the laws as well.

To understand the needed ideal form of law, firstly we must understand the expectation of the citizens from its State, only then we can establish the ideal form of law’s main pillar. A citizen expects from the State to ensure the protection of himself and his family, to create sufficient job opportunities, to provide the fundamental needs, to ensure the security of his property and his life etc. In that case, such law should prevail in the State that ensures all the necessary expectations of the citizens. If such law is established which ensures the expectations of citizens, then a good bond can be created between the State and its citizens. But I think the ideal form of law cannot be formulated by ensuring certain expectations of citizens only, the matter is deeper than that.

According to me, the ideal form of law cannot be formulated without upholding the law that reflects compassion, cognitive empathy, ethics, highest human moral in the State. A law succeeding to uphold the highest qualities can eradicate darkness of crime within the society and ensure safety of every citizens living in the State. A good bond and decent understanding between the State and its citizens, is only possible when basic expectations of a citizen surely gets fulfilled; like- safety of life, respect and property etc. Ensuring the security of life, respect and property is completely possible, when law itself becomes the epitome of ethics, compassion, empathy, and highest human moral. When law succeeds to reflects all that, only that time all the citizens within the society can be capable of practicing compassion, empathy and ethics inside them; whenever a person thinks to harm someone or cause any crime, the deep-rooted highest moral values can possibly stop him to cause the crime that he intended to do. In that way, all the citizens can keep faith on the State where any crime is prevented by such law, and ensures all the necessary expectations as well.

Hence, the ideal form of law is which ensures the fulfillment of the expectations of the citizens and reflects highest human morals, ethics, cognitive empathy, in respect to the reciprocal relationship between the State and its citizens.

THE POSSIBLE REFLECTION OF THE LAW

The new form of law I am expecting to establish in future, it is supposed to bring possible positive changes in the society. It will not only change people’s lives in positive way, but will be able to make them think about the society, the State and other people with a mind filled with compassion and empathy. The State, where law can reflect empathy and compassion, that State can never fail to achieve harmony inside the people, and there barely any crime can take place. When every citizens of the State understand each other and sympathize while reflecting the ethics from the result of the law, no person will be able to harm each other without thinking twice. Such a society with this new form of law, can be free from any situation which can cause clash between the citizens or can cause any big crimes in the State.

CONCLUSION

Law is continuously evolving and law will keep changing till the end of the earth. Lots of matters depends on the upcoming development of law, so why not establish a new form of law which can change the epitome of law itself that has been lasting for the past several decades? Law should not be seen as the rule-bound to follow only, the law itself can reflect the highest human morals which can stop crimes and maintain peace & harmony in society. By law, we usually think as the medium to stop crimes in society by ensuring punishment who breaks the law. What if we can change the very epitome of law, by changing its way. This new form of law may not only ensure punishments for the law breakers, but it possibly can close the roots of all the crimes in the society. A society with a new perspective in the result of the new form of law, can definitely be a safe place for all the people.
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ABSTRACT

Rules and regulations are provided to put a stop to confusion and dispute among our society, these are specifically climb so that our society may function smoothly and to secure order in our lives. Each country formulate their own laws. Even the organizations themselves fixture their own rules and regulations such as a school, a club, a political party or the army. Rules are made according to their treaty and needs to enable a smooth functioning of work. Higher commands are given the responsibility to watch the execution of these rules. Laws help us to do the right thing at the right time in the right place and in the right way. 

If laws were absent then everyone would go on their way and there would be a big chaos. In the truancy of proper laws there would be confusion as to who is to do what. People would always be in tension and they would not feel safe to move anywhere. There would be more crime and inequality in the society. The stronger and rich ones would have all the advantages and utilize the others.

INTRODUCTION

The law is necessary for a society for it serves as a norm of conduct for its citizens. It was also made to supply for proper guidelines and order upon the behaviour for all the citizens and to comfort the equity on the three branches of the government. It keeps up the society running. Without law there would be more chaos and it would be survival of the fittest and everyman for himself. Not an ideal lifestyle for the most part. The law is necessary because it acts as a guideline as to what is accepted in the society. Without it there would be conflicts among social groups and communities. It is crucial that we follow them.
The law allows for easy assumption to changes that occur in the society. Society is a ‘web-relationship’ and social change obviously means a change in the system of social relationship where a social relationship is understood in terms of the social processes and social interactions and the social organizations. Thus, the term, ‘social change’ is used to indicate desirable differences in social institution, social processes and social organization. It comprises of alterations in the structure and functions of the society. 

RELATIONSHIP BETWEEN THE LAW AND THE SOCIETY

Societies are governed by some standards, regulations and procedures to reflect the notion of human being as a social animal. In absence of these rules the social order would not have function in a smooth way. And hence some powers for everybody part of society should be there to make it sure that the society would remain free from anarchy, violenc and conflicts. Social contract theory says that the people live together in society in accordance with an agreement that establishes moral and political rules of behavior. Some people believe that if we live according to a social contract, we can live morally by our own choice and not because of a divine being requires it.
Over the centuries, philosophers as far back as Socrates have tried many times to describe the ideal social contract, and to explain how existing social contracts have been evolved. Philosopher Stuart Rachels suggests that the morality is the set of rules governing behavior that rational people accept, on the condition that others accept them too. Indeed, regardless of whether social contracts are explicit or implicit, they provide a valuable framework for harmony in the society. So laws are very much essential for smooth functioning of the society and such laws should be fair and rationale so that everybody have an equal say in society without any kind of discrimination or subjugation. Constitutional values and norms in a democratic society shows the importance of laws to make a better society.

NECESSITY OF LAW IN SOCIETY

There is importance of law because it goes about as a rule concerning what is acknowledged in the public theatre. Without it, there would be many clashes between social gatherings and networks. We must end them up. The law takes into deliberation simple reception to changes that happen in the general public. The rule of law is so valuable precisely because it limits the arbitrary power of those in power. Public authority is necessary, as Thomas Hobbes rightly observed, to save against private authority, but the rule of law keeps public authorities honest.
Government officials, along with everyone else, should be legally and publicly liable in the courts. Sticking to the rule of law will help to keep governmental and private power part of the solution, rather than part of the difficulty. It will also make our society safer.It requires measures to ensure attachment to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and the legal transparency.

SUGGESTION

The law is dynamic. Our Preamble states that the ideals of JUSTICE, LIBERTY, SOVEREIGNITY, FRATERNITY and EQUALITY which add up to the basic foundation of Our Constitution. However, without law these ideals will be shattered all the time. There will be nothing to save these ideals. In a world where ‘survival of the fittest’ is widespread, and looking at the size of human population we can say only one thing. Law is needed for the survival. We cannot go against each other as it will definitely lead to the destruction. Law plants an element of fear which may stop to killing of fellow human beings. It gives each one his or her own share and what they deserve.
Laws tell us what to expect as consequences as a result of the actions. It makes us look before we vault. It is there to save and to destroy. It limits people who get carried away due to the freedom given to them by the absence of law if this is the case. They know one misuse of the law will affect them economically, mentally and physically. Some irregularity may be found but this is applicable for the majority.

CONCLUSION

It can be implied by common sense that law helps us to survive as a society and also it is convenient. Convenient is comfortable and humans look for the comfort above all things apart from the happiness. Also the law helps in getting rid of the social barriers that exist in our society. Through law we survive yet blossom. Hence the law is necessary in a society.

INTRODUCTION

Nemo judex in causa sua i.e., it is a common percept that no one should be a judge in his/her own case. Fairness and impartiality are the prime qualities to be possessed by a judge. Recusal means the removal of oneself as a judge from a particular case due to any conflict of interest or due to a strong possibility of bias. The right of the judge to remove themselves from a specific case is based on the principle of natural justice. Every judge has a duty to act fairly and impartially, as ingrained under Art 14 and Art 21 of our Indian Constitution. While taking the oath of office, all judges of High Court and Supreme Court promise to perform their duties and to deliver justice “without fear or favor, affection or ill-will”. If this basic principle of the judiciary is in the fear of being compromised, then the judges usually recuse themselves. 

In Ranjit Thakur v. Union of India [1], Justice M N Venkatachalaiah held that ‘the proper approach for the Judge is not to look at his own mind but to look at the mind of the party before him.’ 

LAWS RELATING TO RECUSAL IN INDIA

There are no specific laws in respect of recusal in India. There are no written rules specifying when a situation can be considered as a violation of judicial ethics nor are there any laws about whether it is compulsory for judges to recuse in specific situations. Every judge has a right to hear and judge all the cases listed before them in a Constitutional Court. The decision of recusal is left to the discretion of the judge. Whenever a judge has any pecuniary or other benefits from the outcome of the case or if there is a possibility of bias or conflict of interest or any association with the parties of the case, they usually recuse themselves. 
In the case of Supreme Court Advocates-on-Record Association v. Union of India [2], the 99th Constitutional amendment was challenged and a claim was made seeking Judge J.S.Khehara’s recusal. The plea was rejected, but Justice Chelameswar attempted to establish some kind of basis for recusals. He enunciated that where a Judge has a pecuniary interest, no further inquiry as to whether there was a real danger or reasonable suspicion of bias is required to be undertaken and in other cases, such an inquiry is required. The relevant test in such cases is the real danger test. This is the closest to a concrete rule regarding recusal in India. 

WHEN CAN THE LITIGATING PARTY REQUEST A RECUSAL? 

At times, the parties of the case may raise apprehensions about a possible conflict of interest or bias. For example, if the case relates to a Company where the Judge has a vested interest like holding of shares, then the apprehension about the possibility of bias is. This rule was held in the House of Lords in an 1852 judgement, which ruled that the Lord ought not to have delivered a verdict in a case where he owned shares in one of the parties to the litigation. The Restatement of Values of Judicial Life adopted by the Supreme Court categorically states that a Judge shall not hear and decide a matter in a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised. 
Similarly, if the judge had appeared previously as a lawyer for one of the parties of the case, then the call for recusal by the other party is justifiable. However, the parties requesting a recusal is always under the risk of the dismissal of the request and they have to deal with the consequences of the same. In India, no judge can be forced to withdraw from a case by another party. 

SHOULD THE REASON OF RECUSAL BE REVEALED? 

The judges are under no compulsion to disclose the reasons for their recusal under normal circumstances. Since the prerogative to recuse himself/ herself vests in the particular judge, he/she is not expected to disclose the reason for recusal in the judicial order. Revealing the reason in detail may open up many requests from the parties of similar cases, thus delaying the delivery of justice. The reasons may also be used as an excuse by the parties to request recusal in cases where they think the judge will not rule in their favor. Some judges orally convey the reason to the lawyers involved in the case while some others disclose in the judicial order. The ultimate decision rests on the conscience of the judge.

However, if no reason is given, it becomes difficult to decide whether the recusal was justified or not. Justice Kurian Joseph (now retired), in his separate opinion in the National Judicial Appointments Commission (NJAC) case, highlighted the need for giving the reason for the decision of recusal as a measure to build transparency. In his view, “It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case”. One of his companion judges on the Constitution Bench, Justice (retired) Madan B. Lokur, also agreed that specific rules are required to be framed on recusal in our country. 

RECUSAL LAWS IN THE UNITED STATES: 

In the United States, Sec 144 and Sec 455 of Title 28 of the United States Code (U.S.C.) provides the standard for judicial disqualification or recusal. Sec 455 provides that a federal judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Sec 144 provides that under circumstances, when a party to a case in a United States District Court files a timely and sufficient motion that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party, the case shall be transferred to another judge.

CASES OF RECUSAL

· In the Central Bureau of Investigation case, three judges including the then Chief Justice Ranjan Gogoi, recused themselves from hearing a petition challenging the Central Government’s decision to appoint M.Nageshwara Rao as interim director of Central Bureau of Investigation(CBI). 
· In Ayodhya case, Justice U.U.Lalit recused himself after being pointed out that he had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a similar contest. 
· In the appeal hearing of Mr. Navlakha's plea to protect his fundamental right to personal liberty and the quashing of FIR against him in the Bhima Koregaon case, five Supreme Court judges opted to recuse themselves. 
· The CJI S A Bobde recused himself from hearing a review petition filed by one of the convicts in the Nirbaya case as his nephew had appeared on the behalf of the mother of the victim in the case. 

Judges recusing themselves due to some conflict of interest strengthens the view of our Justice system and confidence reposed in them by the Public. 

CASES OF JUDGES REFUSING TO RECUSE: 

· In the Sexual harassment case, when a Supreme Court employee accused the then CJI Ranjan Gogoi of sexual harassment, he decided to hear the case himself. 
· The then CJI Ranjan Gogoi refused to recuse himself in the Assam Detention Center case wherein a PIL was filed highlighting the “sub-human” living conditions of detenues in the detention centers. 
· In medical college scam case, CJI Mishra was requested to recuse himself as the CJI’s own conduct was under scanner. However, CJI Mishra rejected the plea. 
· In Land acquisition case, Justice Arun Mishra refused to recuse himself even when he lead a Bench meant to re-examine a judgement that he himself had given earlier. 
Judges refuse to recuse themselves in certain cases on the ground that it has enormous potential to damage the institution and that a CJI’s recusal would mean the destruction of the Judicial System. In some cases, judges refuse to recuse as it may seem that the Judge had been scared out of the case. 

WHAT HAPPENS IF ALL THE JUDGES RECUSE THEMSELVES FROM A CASE? 

Ever wondered what would happen should all the Judges recuse themselves from a matter? Even though it is highly unlikely and has never occurred in our Independent India, the Supreme Law of the Land provides provisions for such a situation. Under Art 128 of the Constitution, the CJI can appoint a retired judge of the Supreme Court or High Court to sit in and act as a judge, with the permission of the President. Unlike Art 127, Art 128 does not talk about the necessity of a quorum. Such an appointment is a need-based one.

CONCLUSION:

Recusal emphasizes on the two key principles of impartiality and independence. Thus, a decision whether to recuse from a case or not has to be made by the Hon’ble Judge themselves as per conscience and there should not be any law relating to this, which will make the litigants take advantage of the situation to get rid of particular Judge, in case if the litigant feels he may not get a favorable order.

REFERENCES: 
· [1]Ranjit Thakur v. Union of India 1987 AIR 2386 
· [2]Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1 
· https://www.thehindu.com/news/national/when-can-a-judge-opt-out-of-a-case/article30831685.ece 


This blog is authored by-K.Keerthana

Introduction

With the passing centuries, we have seen the rise and fall of various dynasties but the only thing which was common between them was their use of death penalty as a means of administering justice. Further, if we look at the time of the Mauryan Dynasty, the principal followed to penalize a person was an eye for an eye, a hand for a hand, etc. The later dynasties followed diverse types of punishments such as dragging the body by a horse, cutting of head or any body part, stamping by an elephant which was very vicious in nature. 
According to the world’s perspective, the criminal laws regarding death penalty were first codified by King Hammurabi of Babylon. There were other forms of death penalty which were rampant in the world such as guillotining in France, beheading in Middle East countries, putting to death by electrocution in Russia, etc. But in the present age with codified laws and awakened principles, on behalf of death penalty that whether it is still a best option of punishment. Despite many organizations which were protesting for the abolishment of a death sentence, is still being carried out in different countries. Consequently, India’s international rise on the suspension on death penalty both at the General Assembly and at the Human Rights Council has always been against the resolution saying, it goes against the statutory laws of the country where an implementation is carried out in the “rarest of rare” cases. [1]

 DEATH PENALTY 

Death penalty, which is also known as capital punishment, also paves a way to certain doubtful questions, where it enables to think that whether this capital punishment eliminates the criminals and crime from the society? Whether it could a conceivable thing, in this society? Having a deep apprehension on human nature, it is inconceivable. It can be only done when the criminals recuperate themselves, change their approach for a better prospect. There has been a global inclination towards the eradication of capital punishment; however, India has not adopted this point. This type of punishment is hence different from the others, because of the understandable element of irreversibility attached to it. A man who is once executed for an offense can never be brought back to his normal life. So if any mistake has crept in while deciding on an issue, this mistake cannot be rectified at a later phase. As it is being stated earlier, death penalty has its existence since the ancient times, where it got started back from the early 1750 B.C, moreover it has been enumerated and its existence is distinguished in all ancient scriptures such as code of Hammurabi, Bible and so on. Even great scholars, such as Plato, John Locke, etc. who spoke about the social contract theory, supported and privileged this type of punishment for serious offences. The idea of punishment took a dimensional change in the society, leading to the abolishment of this death penalty or capital punishment, where it became a controversial issue by of one of the great criminologist named Cessare Beccaria, who swayed on many citizens that death penalty should be abolished because it is brutal, useless and strictly speaking, a communal assassination. In the year 1846, Michigan became the first State to abolish the capital punishment, followed by Portugal and Venezuela in 1867. Abolition of the death penalty was also supported by the United Nations during the period of drafting of Universal Declaration of Human Rights in the year 1948.[2]

CONSTITUTIONAL VALIDLITY OF DEATH PENALTY 

Capital punishment has gone through many dimensional changes which implicated many forms of punishment from immemorial period. Capital punishment in Indian picture started from Indian penal code, where The Indian Penal Code, 1860 (IPC) is an Open Law and substantive Criminal Law which defines crime and suggests punishments accordingly. Section 53 of the IPC provides for death sentence and imprisonment for life as alternative punishment. In the current situation, capital punishment is documented as a legal death penalty in India. Capital punishment has been acknowledged for serious offences. Indian judiciary declares it, by giving significance to its Constitution, where Article 21 of the Indian Constitution states about the “protection of life and personal liberty”. This article says “No person shall be deprived of his life or personal liberty except as according to procedure established by law”. It also confirms that right to life is promised to every citizen in India. In India, IPC provides death sentence as a retribution for various offences such as criminal conspiracy, murder, waging war against the government, dacoity with murder and so on.[3] The Indian Constitution has a certain provision for mercy of capital punishment, being stated by the President. Whenever, any question of death penalty or capital punishment arises, this article particularly comes into play, where it instigates the judiciary members to examine the case again, and make them to sense before conceding a death sentence or punishment.[4] Further, Article 14 of Indian Constitution declares “equality before law and equal protection of the laws”, which means that no person shall be discriminated against unless the discrimination is required to achieve equality. Capital sentence hence seems to be an anti-thesis of one’s right to life. It is an undividable fact that there is nothing in the Indian Constitution that specifically holds the capital punishment to be unconstitutional, though there are provisions which suggests that the constitutional system accepts the possibility of capital punishment. Punishment as given in various sections of the Indian Penal Code is unconstitutional because the provisions of the Indian Penal Code forwarding capital punishment, is violative of certain provisions of the Constitution of India. These two aspects of the matter may have been considered separately to have a clear revelation on the subject.


· Constitutionality of capital punishment as such.

· Constitutionality of the provisions of I.P.C. providing for capital punishment.

CONCEPT OF RAREST OF RARE

The concept of rarest of rare cases came into force in the case of Bachan Singh v State of Punjab, which was one of the most significant cases, which brings out the issue of the soundness of capital punishment. This was the case that gave birth to the doctrine of “rarest of the rare cases” and still it resulted in a discussion on the subject of the compatibility of the death sentence with Article 21 of the Indian Constitution. The Supreme Court while holding the legality of the death penalty expressed the estimation that a real and enduring concern for the decorum of human life postulates resistance for taking a life through law’s instrumentality. There was always a question in mind of court judges regarding an issue that at what conditions, death penalty can be given? It was also laid down that for ascertaining the continuation or lack of “special reasons” in a case, the Court must pay due regard to both the criminal and the crime equally.[5]

CONCLUSION 

Every human being must have a note in their mind that no one has right to take away one’s life except it is prescribed by law. In the current scenario, contemporary issues in death penalty mainly mark because there is a breakdown in probing the nature of crime. Cruel punishment is necessary to keep the probable convicts at bay, and ensuring that the humanity is not damaged or the peace, tranquillity and order of the society is not compromised. The State cannot compromise the lives of thousands of naive persons only for the life of one convict who does not even deserve to live among a society of civilized persons. Thus, death penalty should continue to exist.


[1] https://www.ssrn.com

[2] https://www.theconversation.com 

[3] https://www.digitalcommons.iwu.edu

[4] https://www.researchgate.net

[5] Supra4 

This blog is authored by-Shramana Sengupta

Abstract

As we all know about Article 21 that it is our basic and important fundamental right as compared to other fundamental rights. It has more value in our constitution, life, liberty and it plays important role as well. Article 21 of Indian Constitution ensures right to dignified life and personal liberty but Article 21 has many implied rights for dignified life. 
Role of Judicial activism under Article 21 helps it to interpret and making it scope wider which helps its citizens to rights for dignified life. In Article 21, the judiciary expand the scope of personal liberty from physical to mental liberty which includes right to privacy. Article 21 interprets by judiciary. In many cases, judiciary had interpreted Article 21 and expanded its scope. In my article, we will discuss what the meaning of Article 21 within the Constitution is. Now, the judiciary expanded its scope too much which we do not need to expand this much. Because of Judicial activism position of Article 21 also decreases and loses its importance.

MEANING OF ARTICLE 21 UNDER INDIAN CONSTITUTION

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law[i].” Article 21 is available for citizens and non-citizens but not for juristic or artificial person. Nature of Article 21 has two trends i.e. past trend and future trend. In past trend, it was considered as negative right because it prohibiting the state from doing anything against the life and liberty. The language of Article 21 starts but in present trend Supreme Court with its activism and judicial creativity has converted Article 21 from a negative to positive right because it directing the state to take all the necessary steps to guarantee a quality, meaning and dignified life. Article 21 is not an absolute right it has also restrictions. In past trend, the meaning of personal liberty is limited to physical liberty and life means mere existence. The concept of procedure established by law also plays important and main role under Article 21. The concept has been picked from constitution of Japan. In past trend, it means only requirement is whether the procedure has been laid down under an act that has been passed by the Parliament. In present trend, in case of Maneka Gandhi v. Union of India[ii], the court held that any procedure that takes away the life or liberty of a person must be just, fair and reasonable.

ROLE OF JUDICIAL ACTIVISM

IMPLIED RIGHTS UNDER RIGHT TO LIFE

CASE LAWS

RIGHT TO FOOD

PUCL v. UNION OF INDIA

RIGHT TO SHELTER

CHAMELI SINGH v. STATE OF UTTAR PARDESH

RIGHT TO HEALTH

PARMANAND KATARA v. UNION OF INDIA

RIGHT TO EDUCATION

MOHINI JAIN v. STATE OF KARNATAKA

RIGHT TO LIVELIHOOD

OLGA TELIS v. UNION OF INDIA

RIGHT TO CLEAN ENVIORNMENT

MC MEHTA v. UNION OF INDIA

RIGHT AGAINDT BONDED LABOUR

BANDHUA MUKTI MORCHA v. UNION OF INDIA









Judiciary plays an important role to interpret the Article 21. It extends the scope of personal liberty and life. In case of Justice Puttaswammy (Retd) v. Union of India[iii], it was held that right to privacy is an integral part of liberty, freedom, dignity and again held it is a fundamental right and sexual orientation was held to be important facet of right to Privacy. Through judicial activism the meaning of life expanded as it is a quality, meaningful and dignified life not mere animal existence. Implied rights are also born out from this as Justice PN Bhagwati declared that the correct way of interpreting part-3 of Constitution, it is not merely and attempt to explain the meaning of right under this part and every effort must be made to expand the scope of Fundamental Right to include all other rights that have the same character as Fundamental Right. The concept of right to dignified life under Article 21 has given birth to prisoner rights in India through following cases mentioned below:-

RIGHT OF PRISONERS UNDER RIGHT TO LIFE

CASE LAWS

RIGHT AGAINST TOURCHER

SUNIL BATRA v. DELHI ADMINISTRATION

RIGHT AGAINST HANDCUFFING

D.K. BASU v. STATE OF WEST BENGAL

RIGHT TO FREE LEGAL AID

SHEELA VERSE v. STATE OF MAHARASTRA

RIGHT TO SPEEDY TRIAL

HUSSAIN ARA KHATOON v. STATE OF BIHAR

RIGHT TO AGAINST SOLITARY CONFINMENT

FRANCIS CORALLIE v. UNION TERRIORY OF DELHI

RIGHT TO AGAINST CUSTODIAL VIOLENCE AND ILLEGAL DETENTION

KHATRI v. STATE OF BIHAR

RIGHT TO COMPENSATION

RUDL SHAH v. STATE OF BIHAR

 Judicial Activism also interconnects the Article 14, 19 and 21. In the case of Maneka Gandhi v. Union of India[iv], the court held that the Doctrine of Exclusiveness of fundamental rights rejected. According to this, every fundamental right is independent of each other and must read in its own sphere. The court held that Article 14, 19 and 21 are intimately connected and one must stand the test of other. Article 14, 19 and 21 were held to for the Golden Triangle of Part-3. Judicial activism has also defined the meaning of procedure established by law. The court held that a procedure which takes away life and liberty of a person must stand the test of justice, fairness and reasonableness. It cannot be an arbitrary procedure. Justice Krishna Iyyer impliedly imported. The American Doctrine of due process of law in Article 21 and now protected not only form executive action but also from legislative action. There was also one question arises that whether right to life include right to die or not? In case of, State of Maharashtra v. Shri Maruty Dubl,[v] it was held that right to life include right to die. A person cannot be compelled to live life to this determinant and Section 309 of Indian Penal Code was held to be unconstitutional. After that, in case of, Gyan Kaur v. State of Punjab[vi], the court held that right to life does not include right to die and Section 309 of Indian Penal Code was held to be constitutional.

POSITION OF ARTICLE 21 IN INDIA NOW

We discuss about what is Article 21, its meaning within the constitution but its position in India is not valuable anymore. Article 21 has implied rights which included in two words i.e. dignified life and Personal liberty, but these rights should be implied or interpreted in Article 21? Implied rights like prisoner’s rights also included in Article 21 which does not needed to interpret or imply in this article. In many cases judges interprets Article 21 where we does not need because of implied rights Article 21 loses importance in law. In past trend word “personal liberty” includes physical or bodily liberty and this was held in AK Gopallan v. State of Madras[vii], but in present trend it was extended to mental liberty which includes right to privacy. Right to privacy extends to telephone tapping and restrict the interest of right to health of another person. These implied rights can be separated from Article 21 or can be inserted under sub-point of other articles which are related to them. Prisoner’s rights can also be a fundamental right but it has to be separate right. The telephone tapping right cannot be included under mental liberty. These implied rights have no value under Article 21 like right to clean environment, right against bonded labour etc. A person always filed case under Article 21 for any matter relating to life and liberty which becomes burden. For prisoners there should be different laws like right to solitary confinement, right to torcher, right to handcuffing and right to compensation etc. because of the judicial activism, Article 21 interpreted too much which we do not need.

CONCLUSION

Now, we all know about the position of Article 21 in India. We have to change the position or status of Article 21 otherwise it will vanish or loses its importance completely. Article 21 has widest meaning within the constitution itself but too much expansion make it junk or salvage for Indian Constitution. Different rights can be elucidated in form of heading or sub-heading of other articles. Judicial activism interprets Articles 21 but make it burden. All the issues related to life and personal liberty cannot be elucidated under this. Article 21 is an adorable fundamental right that provide us a dignified life and personal liberty. It is also difficult to find implied rights under Article 21 because they are implied and not mentioned in Indian constitution. But we cannot deny that Judicial Activism has given such wide meaning to Article 21 and now it becomes the source of human rights in India. 


[i] THE CONSTITUION OF INDIA, BARE ACT

[ii] 1978 AIR 597, 1978 SCR (2) 621

[iii] 26th September, 2018

[iv] 1978 AIR 597, 1978 SCR (2) 621

[v] 1987 (1) BomCR 499, (1986) 88 BOMLR 589

[vi] 1966 AIR 946, 1996 SCC (2) 648

[vii] AIR 1950 SC 27

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This blog is authored by Nishu Singh


“It is the very soul of the Constitution and the very heart of it and  I am glad that the House has realized its importance”

-Dr B R Ambedkar


INTRODUCTION:

 The Part III of the Indian Constitution deals with various fundamental rights. The framers of the Indian Constitution while framing the fundamental rights, they also provided certain remedies for the enforcement of fundamental rights. The Supreme Court is the custodian of the fundamental rights. The Supreme Court under article 32 of the Indian Constitution and High court under the article 226 of the Indian Constitution issue various writs for the protection of fundamental rights. This paper deals with the following constitutional remedies:

1.     Public Interest Litigation (PIL)

2.     Article 32 & Article 226 of  Constitution of India, 1950

3.     Writs:

Ø  Writ of Habeas Corpus

Ø  Writ of Mandamus

Ø  Writ of Certiorari

Ø  Writ of Prohibition and

Ø  Writ of Quo Warranto

PUBLIC INTEREST LITIGATION

Public Interest Litigation (PIL) are the writ petition brought before the High Court or Supreme Court to protect the basic human rights of those people who were unable to protect themselves. It is also known as “social interest litigation”. Public interest litigation means any public-spirited individuals or particular group can approach the court for the public (in the interest of the public or public welfare) by filing the petition:

Ø  In the Supreme court under article 32 of the Constitution of India, 1950

Ø  In the High court under article 226 of the constitution of India, 1950

Who can file a PIL (LOCUS STANDI)

The term “Locus standi” means right to appear in a court.Locus Standi for filing a litigation is normally available only to a person who has suffered a legal injury by violation of his/ her legal right or legally protected interest by the impugned action of the state or a public authority or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest of any such action. This rule has gone a complete change. In S.P. Gupta& others V. President of India&ors[i] [AIR 1982 SC 149], the supreme court held that any member of public having sufficient interest can approach the court for enforcing the constitutional or other legal right of other person or group of person. The Supreme Court would have dealt with various petitions under article 32 of the Constitution of India complaining of infractions of Fundamental rights of individuals or weak or oppressed group.

In,Akhil Bharatiyasoshitkarmacharisangh V. Union of India[ii][AIR 1981 SC 298] the concept of PIL was initiated in this case. Justice V.R. Krishna Iyer held that wherein an unregistered association of workers was permitted to institute a writ petition under article 32 of the constitution of India for the compensation of common grievances.It was held that whether the petitioner belonged to a recognized union or not if there are common grievances, hence they can approach the Court under Article 32 of the Constitution of India. The Court set aside the objection and heard the contention of the petitioner.

 

1.     ARTICLE 32 & 226 OF CONSTITUTION OF INDIA, 1950

Article 32 of constitution of India, 1950

Article 32 of the constitution of is a fundamental right guaranteed under the part III of the constitution of India, 1950. This article can be exercised only for the enforcement of fundamental rights. The fundamental right provided under the constitution shall not be suspended except as otherwise provided in this constitution. It also provides individuals to move to Supreme Court for enforcement of fundamental rights.It is the part of basic structure. Article 32 confers power to Supreme Court to issue various writs that is

Ø  Habeas Corpus

Ø  Mandamus

Ø  Prohibition

Ø  Certiorari

Ø  Quo warranto

Article 226 of Constitution of India, 1950

Article 226 of the Indian constitution empowers High Court to issue various writs as mentioned in the article 32. Article 226 grants individuals to move to High Court for enforcement of fundamental rights and for any other purposes. Article 226 confers wider power to High Court, when compared to Supreme Court. The powers under article 226 cannot be restricted by the legislation. Even if the statute declares an administrative action as final, still it can be challenged under article 226.

WRITS

The term “writ” literally means an order of the court, by which the Supreme Court or high courts direct an individual or an authority to do an act or abstain from doing an act. Articles 32 and 226 of the Constitution of India, 1950 confers writ jurisdiction on Supreme Court and high court. Writs are classified under the following heads:

WRIT OF HABEAS CORPUS

The term “Habeas Corpus” means “to produce a body”. The purpose of this writ is to release the person who is arrested/ detained unlawfully or illegally.

Who can file a writ of Habeas Corpus?

The general rule is that the person who is detained can apply for writ. However, in certain cases the writ can be filed on behalf of his relatives or friends. But a stranger cannot file the petition for writ of habeas corpus.

In Rudal sha V. State of Bihar  [iii][AIR 1983 SC 1086]the Supreme Court in this case awarded exemplary damages of Rs.35, 000 to an acquitted person, who was illegally detained for more than 14 days.

 WRIT OF MANDAMUS

The term “mandamus” means an order or a command. Mandamus is the judicial order issued in form of command to any constitutional, statutory or non- statutory authority asking to do a public duty imposed by law or to restrain from doing that act. This writ is also known as “Writ of Justice”.

Who can file a writ of Mandamus?

The affected person can only file the writ of Mandamus. The petitioner who files the writ has to prove that he has the right to enforce public duty in his favour.

In Gujarat State Financial V. Lotus Hotels Pvt. Ltd [iv][AIR 1983 SC 848], The Corporation entered into the agreement with lotus hotels to provide finance for construction of a hostel and did not release the funds. The Gujarat High Court issued the writ of mandamus to release the funds as agreed.

WRIT OF CERTIORARI

The term “Certiorari” means to be certified. This writ is issued by the Supreme Court or High Court to review the record of proceedings in the inferior or lower court. The writ of certiorari confers powers on Supreme Court or High Court.

Who can file writ of certiorari?

Any person or a firm or non- statutory body such as managing committee of the school whose legal right has been taken up and who has been aggrieved by the order complained can apply for certiorari.

In A.K. Kripak V. Union Of India[v] [AIR 1970 SC 150], the Supreme Court issued the writ of certiorari to squash the selection list of the Indian Forest service on the ground that among the selected members one of the member was an ex-officio member of the selection committee.

WRIT OF PROHIBITION

The writ of prohibition means “to stop or to prohibit”. This writ is also known as stay order. The writ of prohibition will be issued by the superior court to the inferior court or tribunal forbidding it to perform an act outside the jurisdiction. Once the writ is issued, then all its proceedings come to an end. The writ of certiorari and writ of prohibition have common characteristics, the main difference between both the writs are:

Ø  The writ of prohibition is issued by the superior court to prevent the decision of the lower court in which administrative action is in the process, so that it cannot proceed further

Ø  Whereas, in writ of certiorari issued by the superior court is used to squash the decision already given by the inferior courts

In Raj leathers V. Secretary to the government of India[vi][AIR 1990 MAD 30] the court held that, the petitioner cannot get the help of court and obtain a writ of prohibition to stop the authorities from conducting investigations. The petition was dismissed.

 WRIT OF QUO WARRANTO

The term “quo warranto” means By what authority. This writ is issued by judicial order seeking the person, who occupies public office, to show by what authority he holds the office. If it is found that holder of the office does not have valid title, then the writ of quo warranto is issued to vacate his office.

Who can file a writ of Quo Warranto

If a person fundamental or legal right is violated, he may apply the writ of quo warranto. This writ is issued with a view of restraining a person from acting in public office which he is not entitled.

In K. Bhima Raju V. State of Andhra Pradesh[vii] [AIR 1921 AP 24] the Andhra Pradesh high court squashed the appointment of a government pleader on the ground that rules for said appointment are not compiled.

 CONCLUSION

The fundamental rights created under constitution of India are more important in the democratic country. This remedy provides relief to those persons whose fundamental rights are affected, and they can enforce their fundamental rights under article 32 and 226 of constitution of India. It also guarantees that every person can live with peace and harmony.