A declaration of FR is meaningless in absence of judicial remedy for their enforcement.



A right without a remedy is as meaningless as a vehicle without fuel. The assertive nature of any right guaranteed by part III of the Constitution derives its essence only from the duty imposed upon the State to ensure that these fundamental rights are not abrogated or taken away under ordinary circumstances. The Constitution of India, undoubtedly, gave these fundamental rights so that an individual have access and recourse to avenues required for its overall development, but, the question arises, what if these fundamental rights are snatched away from an individual. With no remedy available at hand, situation similar to class oppression will begin to prevail where the mightier oppresses the might and might crushes the weak; to curtail any such situation, our Constitution framers incorporated Article 32 in the Constitution which empowers the Supreme Court to keep a check that fundamental rights of any individual is not violated. The right to constitutional remedies is itself a fundamental right guaranteed to both citizens and non-citizens.

Article 32 of the constitution empowers the Supreme Court to issue inter alia writs, “including” habeas corpus, mandamus, certiorari, prohibition and quo warranto. The word “including” deserves much significance in terms of power of Supreme Court to issue writs; the connotation thereof implies that writ can be of any nature, for simplicity we can consider it as an order or direction issued by the Supreme Court to preserve the fundamental rights (or any other legal right, in case of High Court under Article 226) of an individual. The aforementioned 5 types of writs are the prominent ones which are widely used by the Supreme Court, but there is no limitation that only these writs can be issued.

The right to constitutional remedies being a fundamental right deserves special position in terms procedure of Supreme Court and therefore, it has been kept devoid of elaborate and intricate procedures generally seen in court proceedings. For example, a mere letter to the Supreme Court intimating violation of fundamental right is treated as a petition to safeguard fundamental rights of an individual. In a country driven by poverty, illiteracy and ignorance, our Constitution framers deemed it extremely necessary that easy and quick remedy is available to the people, in case there is violation of their fundamental rights. Therefore, a mere intimation to the Supreme Court pertaining to violation of fundamental rights enough for the Court to exercise its writ jurisdiction and see that fundamental rights is preserved.

There has been a number of judicial pronouncements through which the Supreme Court has explained, interpreted and widened the scope of right to have access to judicial remedies. The progressive approach on preservation of fundamental rights is reflected from the glide in opinion of the Supreme Court with reference to locus standi of an individual to move the Supreme Court in case of violation of these rights. While the traditional approach permitted only to aggrieved to approach the Supreme Court, i.e., only that person whose right has been infringed can move the Supreme Court, the modern approach is fairly relaxed and now even “public spirited citizen” can move the Supreme Court for enforcement of fundamental rights (or any other right in case of High Court) of any person or group of persons who cannot approach the court directly on account of any reason- social, economic and educational backwardness. Such type of litigation in common parlance is referred as Public Interest Litigation (or PIL).

The Hon’ble Supreme Court in S.P. Gupta v. President of India and others while adopting a liberal view on right to move the Court held that any member of the public having “sufficient interest” can approach the Court for enforcing constitutional or legal rights of other persons and redressal of a common grievance. However, the concept of sufficient interest was one debatable issue when seen in contradistinction to private or personal interest. On one hand it is the responsibility of Supreme Court to ensure that fundamental right of any person if not violated while on the other hand it is also the duty of the Supreme Court to check that PIL’s are not used as weapon for settling scores with the Government. A classic example of abuse of PIL was seen in the case of Janata Dal v. H.S. Chowdhari wherein the petitioner tried to abuse Public interest litigation for political purposes. There is a plethora of judgments where Supreme Court and High Courts have recorded findings that courts have been used for settling disputes of private nature by filing PIL’s and therefore this practise is being deprecated by imposition of costs to show bona fides of the petitioners and discourage vexatious litigation.

Some of the remarkable judgments delivered by the Hon’ble Supreme Court while acting as guardians of fundamental rights of people can be seen in cases of Bandhua Mukti Morcha v. Union of India wherein the rights of bonded labourers working in stone quarries were preserved on an application by an organization dedicated to the cause of bonded labour. Similarly in Sarbanand Sonowal v. Union of India, the Constitutional validity of Illegal Migrants (Determination by Tribunal) Act, 1983 was challenged by way of PIL as it discriminated against the citizens of Assam with citizens of rest of India. However, in the case of State of Uttaranchal v. Balwant Singh Chaufal, the Supreme Court dealt with the issue of vexatious litigation in form of PIL and issued detailed guidelines for entertaining PIL’s. These are as under:

  • a. The court must encourage genuine and bona fide PIL and effectively discourage and curb PIL filed for extraneous consideration.

  • b. The courts should prima facie verify the credentials of the petitioner before entertaining a PIL.

  • c. The court should be prima facie satisfied regarding the correctness of the content of the petitioner before entertaining a PIL.

  • d. The courts should be fully satisfied that substantial public interest is involved before entertain the petition.

  • e. The court should ensure that the petition involved larger public interest, gravity and must be given priority over other petitions.

  • f. The court before entertaining a PIL is aimed at redressal of genuine public term of public inquiry. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the PIL.

  • g. The Court should also ensure that the petition filed by busy body for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions filed for extraneous consideration.

It would not be out of place to mention here that the power of Supreme Court to preserve the fundamental rights of persons is unfettered and infinite. Time and again it has been witnessed that the Supreme Court has adopted a rather proactive approach while dealing with issue of preservation of fundamental rights.

The Supreme Court being the guardian and final interpreter of the Constitution has on several occasions resorted to judicial activism to ensure that no arbitrary state action is permitted at the cost infringement of fundamental rights of individuals. The Supreme Court under the Indian Constitution is shouldering the humongous responsibility of ensuring the proper functioning of a welfare state and the fundamental rights which have been guaranteed to persons/individuals are farce and meaningless without Supreme Court exercising powers under Article 32 and High Courts under Article 226.

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