Rights, Remedies and Article 32- Group 4

21st February 2018

Rights, Remedies and Article 32

Remedies and Rights:

While studying the constitution, Rights are accorded maximum importance, especially the “Fundamental Rights” which every citizen is entitled to enjoy. Article 13 points to the supremacy of these Fundamental Rights, when it declares that all laws in violation of fundamental rights are void.

If rights enjoy such a high footing, the question arises as to why an influential thinker like Jeremy Bentham calls them “nonsense upon stilts”. This is because he viewed rights as individual entities and in that sense, he could be correct. What good would rights do if they existed independently just on paper? If they made no impact on the ground, they were no good for a Utilitarian like him. While conceptualising this, he interpreted them in positivist manner, focusing on the codification of law, thereby missing a key concept which always goes hand in hand with Rights i.e. Remedy.

The very basis of rights is that if they are violated, the aggrieved party has another “right” to enforce the violated rights i.e. a right to remedy. The common law case of Ashby v White [(1703) 92 ER 126] recognises the principle of ‘Ubis jus ibi remedium’ meaning- Where there is a right, there is a remedy.

Article 32:

In India, Article 32 of the Constitution provides for the Right to Constitutional Remedies, recognizing the principle of ‘Ubis jus ibi remedium’, giving the citizens, in a nutshell, a right to approach the Supreme Court and High Courts, in case of a violation of Fundamental rights mentioned under Part III of the Constitution.

In Constitutional Assembly Debates, Dr. Ambedkar called Article 32 the “very heart and soul” of the constitution. It is an unalienable right and this is evident by its placement in the most important part of the constitution i.e. Part III (also referred as Mini Constitution). Article 32 has also been held to be a part of the Basic Structure of the Constitution [Kesavananda Bharati S. and Ors v State of Kerala and Anr (1973) 4 SCC 225].

Numerous cases have also emphasised the importance of the Article 32 calling it amongst other things, the cornerstone of democratic edifice [Prem Chand Garg v. Excise Commissioner AIR 1963 SC 996]. The role of courts, especially the Supreme Court becomes especially important with respect to Article 32, as it has taken upon itself a role of guardians and protectors of civil liberties of citizens in cases of breach of Fundamental Rights [Nilabati Behera v. State of Orissa (1993) 2 SCC 746]. The court has adopted a wide interpretation of the provisions of Article 32(1) encouraging more and more cases as writ petitions thereby giving a wide scope to the term ‘appropriate proceedings’.

Further, under Article 32(2), the Court has also exercised wide powers in issuing writs, orders and directions, which may be appropriate. In this way, it has also devised new tools and remedies, like continuous mandamus, suo moto cognizance, PILs, where it adopted a sort of inquisitorial system instead of an adversarial system [Bandhua Mukti Morcha v. Union of India and Ors. (1997) 10 SCC 549]

PILs:

The starting point of such judicial activism perhaps was the Hussainara Khatoon v. Home Secretary, State of Bihar[1979 AIR 1369] when Pushpa Kapila Hingorani approached the Supreme Court demanding justice for illegally detained undertrials in Patna and Muzaffarpur jails vide a habeas corpus writ. The procedural complications at the time and the limited concept of locus standi stood in her way, but in a historical order, the Court issued notice to Bihar Government to free these prisoners and eventually more than 70,000 such undertrial prisoners were released. This case came to be known as India’s first (and perhaps the world’s first) Public Interest Litigation (PIL).

In subsequent cases like Bandhua Mukti Morcha v UOI, the Supreme Court used PILs as a way to ensure social justice for the bonded labourers were unable to ensure rehabilitation and relocation. However in cases like Research Foundation for Science v UOI, the Court, by setting up Supreme Court Monitoring Committee on Hazardous Wastes, performed an executive function and created a parallel administrative system to ensure social justice. The wide variety of social issues taken up by the court is what makes Prof. Baxi call them ‘Social Action Litigation’ instead of PILs [Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, p.289].

These cases were steps towards the liberalisation of stern rules of Writ Petitions and the rule of locus standi was one of the most important concepts liberalised therein.

Locus Standi – Group 3 Presentation:

Locus Standi refers to the right or capacity to bring an action or to appear in a court. Locus Standi can be exercised by any party who has some reasonable relation to the situation, the continuation of which may cause harm to other people who are unable to approach the court for relief.

The scope of Locus Standi was broadened by giving way to Public Interest Litigation (PIL). Through PILs, ‘Person Aggrieved’ included any public spirited individual or association, who are independent of political motives or personal benefit.

Under Article 32, anyone can file a writ petition before the Supreme Court, in case of a breach of fundamental rights, even on behalf of those who are unable to ask for justice themselves, owing to socio-economic barriers. Even though the Supreme Court considers public aggravation in PILs, breach of fundamental rights is still a precondition of these petitions.

India has inherited the Anglo-Saxon system of Locus Standi which had three requirements – personal injury, causation and redressability. According to the Flexibility rule, even before PILs, the court had allowed flexibility in the interpretation of the words ‘aggrieved person’ in the rule of Locus Standi. In the case of K.R. Shehnoy v Udipi Municipality, the court said that the residents in that area could object to the action of municipality sanctioning a cinema hall.

The objectives of Locus Standi include representing the interests of the society, securing justice for the economically and socially backward and ensuring movement of law enforcement towards social justice.

Case laws:

· Fertilizers Corp. Kamgar Union vs Union Of India(1980)

Issue: Whether the sale of the plants and equipment of the factory violate any fundamental rights of the petitioners under Article 14 and article 19(1)(g) to carry on their occupation as industrial workers?

Held: Article 19(1)(g) conferred a general right to pursue any occupation of one’s choice but does not give the right to hold a particular job or post of one’s choice and hence their rights under Article 19(1)(g) were not violated. Since the sale was not unreasonable or unjust, no fundamental rights under Article 14 were violated. Since their fundamental rights under Article 14 or Article 19(1)(g) were not violated, no action can be taken against the respondents under Article 32.

· S.P. Gupta vs Union Of India (1981)

Issue: Did the lawyers who filed the PIL have the locus standi to do so since they had not suffered any legal injury?

Precedents: Barrows vs Jackson dealt with the contention that the defendant was not entitled to plead the constitutional rights of non-Caucasians in defense but the Supreme Court of United States rejected it and broadened the meaning of locus standi in view of public interest.

Sunil Batra (II) v. Delhi Administration and Dr. Upendra Baxi v. State of U.P. (1981) are Indian cases where locus standi has been loosely interpreted where the constitutional or legal rights of economically and socially disadvantaged people have been violated.

Held: Any member with sufficient interest and bona fide intention can seek remedy for a public injury arising from a breach of duty or violation of rights.

· B.P. Singhal v. UoI (2010)

Held: Using the S.P. Gupta case as precedent, the Supreme Court held that the PIL was not maintainable since the petitioner had no locus standi on behalf of the dismissed governors.

· Suraz India Trust v. UoI&Anr.(2011)

Held: The court held that even though the petitioners did not have the necessary locus, they allowed the petition for review of the decision regarding the appointment of Supreme Court judges.

Group 3 used a hypothetical case where a laborer wrote a letter to a lawyer, who wanted to take up this case in the Court. Initially using the precedent of Fertilizer Corp. Kamgar Union vs Union of India (1980), the Court dismissed the case due to the lawyer having no locus standi. However, after the S.P. Gupta vs Union Of India (1981), when the case was filed again, it was accepted by the Court as the rule of locus standi had been liberalized allowing

other people to approach the Court where they had a sufficient interest and public interest in the case.

Question-Answer and Discussion:

The relaxation of the rule of Locus Standi has been inspired from the United States of America, wherein the strict rule of standing or locus standi has been liberalised in the interest of justice (Barrows v. Jackson). However, this principle has been applied in India in a very innovative way, which makes the Indian Model unique and the Indian Supreme Court the most powerful court in the world. The relaxation of the rule of locus standi is not present in any other common law country. 

Other South Asian countries like Pakistan, Bangladesh, and Sri Lanka have tried to adopt models similar to that of India. However some countries like Nigeria have tried to incorporate a similar model given the narrow scope of their constitution. Britain on the other hand has adopted a liberal attitude towards locus standi, which is tempered by the discretionary nature of the remedies involved, and the exercise of the discretion by the judiciary, ensuring that those whose claims are undeserved are not successful. (You can read more on Nigeria and England, in this article which discusses relevant case laws and statutes for both countries in the matter of locus standi: https://www.vanguardngr.com/2013/07/the-supreme-courts-approach-to-locus-standi-2)

The relaxation of the rule of Locus Standi aimed to democratize judicial remedies, remove technical barriers against easy accessibility to justice and promote public interest litigation, thereby creating a new category of rights in favour of large sections of people and imposing a new category of duties on the State and the public officials to achieve social justice for citizens who are unable to approach the court owing to socio economic constraints.The relaxation of the rule is applicable only in constitutional law cases i.e. Writ Petitions and PIL. However, the strict rule of locus standi i.e. only the aggrieved can seek remedy is still applicable to civil and criminal cases.

However, such relaxation of locus standi in constitutional cases has lead filing of petitions by several citizens in the highest court of the country, thereby leading to overburdening of courts, judicial overreach, backlog and pendency and delay in cases. However, to combat frivolous litigation, the Supreme Court Act, under Rule 31, provides for considerations to be kept in mind – what are the issues to be accepted, the petition is read, and if such conditions are not fulfilled, then the petition may be dismissed. So, the sufficient interest test has to be complied with. Sufficient interest has to be distinguished from special interest and public interest, however, they may be overlapping as in SP Gupta’s case.

Also, no general rules have been laid down to ascertain what constitutes “interest and bona fide intention”, which is a condition for any member of the public seeking redressal. This depends on the subjective interpretation of the judges, judicial discretion and varies form case to case. Perhaps the only persons the court has disallowed is a busy-body or meddlesome interloper [S.P. Sathe, Judicial Activism in India (first published in 2002 by Oxford University Press) 17].

An important implication of the relaxation of the rule of Locus standi is the rise of epistolary jurisdiction of the Courts, wherein the citizens can send letters and postcards to the Judges and these letters can serve as a basis for the petition. The judges receive almost 2,000 letters per month in India, however only 25-30 of them are decided and published. There is a PIL

Cell, which is responsible for examining the letters. They have established certain guidelines which is necessary to be followed for a letter to be accepted. (This is explained in the following link which discusses the categories under which one can file a PIL and the procedure, which should be followed for its perusal- http://supremecourtofindia.nic.in/pdf/Guidelines/pilguidelines.pdf ) The gap between the number of letter received and decided clearly shows the problem of transparency, accountability and burden on the Court.

Owing to the lack of transparency and workload on the Court, there is also a need to look for alternative to PILs and Writ Petitions. One alternative could be the appointment of an Ombudsman i.e. special investigation officer, as an alternate dispute resolution mechanism to deal with complaints. The Government of India has created several ombudsmen or Chief Vigilance Officer (CVO) for the redress of complaints and grievancesfrom individuals in the insurance, banking and other sectors being serviced by both private and public bodies and corporations. An example of such a system is that of Insurance Ombudsman scheme, which is described in detail in the following link. (http://www.policyholder.gov.in/ombudsman.aspx)

Also, rather than considering all the cases as issues of constitutional law, they could also be treated as a part civil/criminal law to subject them to the jurisdiction of the lower courts. For example, from the play performed in the class by Group 1, rather than treating it as a violation of Right to Life, it could be dealt with through labour laws. Additionally, there is a need to improve the functioning of the lower courts, to enable them to engage with the law more actively, in order to reduce the burden on the higher judiciary.

While researching, we came up with an interesting article on a website called CrowdJustice, which pools money for public interest litigation. This could be alternative or a subset to the institution of PIL, thus leaving you with an idea to debate  upon. (https://ukhumanrightsblog.com/2015/05/22/the-future-of-public-interest-litigation/)