17 RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLES 32—35) as asked to name any particular Article in this Constitution as the most oqf Iwi . F } ; Article without which this Constitution wovld be a nullity—I could not impor ther Article except thi er to any Ol T Pt this one.. . It is the very soul of th wee sittion and the very heart of it,” Dr. Ambedkar.! z me Introduction.—It is true that a declaration of fundamental rights is meaningless re is an effective machinery for the enforcement of the rights. It is remedy es the right real. If there is no remedy there is no right at all. It was, therefore, ss of the things that our Constitution-makers having incorporated a long list of fundamental rights have also provided for an effective remedy for the enforcement of these rights under Article 32 of the Constitution. Article 32 is itself a fundamental right. hele 226 also empowers all the High Courts to issue the writs for the enforcement of fundamental rights. Article 32 (1) guarantees the right to move the Supreme Court by “appropriate proceedings” for the enforcement of the fundamental rights conferred by Part III of the Constitution. Clause (2) of Art. 32 confers power on the Supreme Court to issue appropriate directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of any of the rights conferred by Part III of the Constitution. be noted here that the power has been given to issue appropriate directions, orders or writs. The writs which the Supreme Court can issue include the writs in the nature of the five writs mentioned in Article 32—Habeas corpus, mandamus, prohibition, quo-warranto and certiorari. It means the writs besides these five writs can also be issued. Further, the Court can issue the writ “in the nature of" habeas corpus, mandamus, prohibition, quo-warranto and certiorari. The court is not bound to issue these writs strictly as these writs were issued in English law. The word in the nature of "give more liberty to the court to issue writs for doing justice. A similar power is wielded by the High Courts but the High Courts have power to issue writs not only for the enforcement of fundamental rights but for any other purpose” also. Under clause (3) of Art. 32 Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or of the powers exercisable by the Supreme Court under clause (2). Clause (4) says that the right guaranteed by Article 32 shall not be suspended except as otherwise provided for the Constitution. Article 32 thus Provides for an expeditious and inexpensive remedy for the protection of fundamental tights from legislative and executive interference.” _ Under Art. 32 (1) the Supreme Court's power to enforce fundamental right is widest. There is no limitation in regard to the kind of proceedings envisaged in Art. 32 (1) ee unless thet which mak in the fitne: It is to396 CONSTITUTIONAL LAW OF INDIA (CHAP. 17 except that the proceeding must be “appropriate” and this requirement must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of fundamental rights. It is not obligatory for the Court to follow adversary system. The Constitution-makers deliberately did not lay down any particular form of proceeding for enforcement of fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or a strait-jacket formula because they knew that ina country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a right formula of proceeding for enforcement of fundamental right would become self-defeating? It is clear from Article 32 (1) that whenever there is a violation of a fundamental right any person can move the Court for an appropriate remedy. Power of Parliament to enlarge writ jurisdiction of the Supreme Court.— The Parliament, under Article 139, may by law confer on the Supreme Court power to issue directions, orders or writs including writs of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them, for any purposes other than those mentioned in Clause (2) of Article 32. It is to be noted here that the writ jurisdiction of the High Court is wider than the writ jurisdiction of the Supreme Court. The Supreme Court has power to issue writs only for the purposes of enforcement of fundamental rights whereas the High Court has power to issue writs for the purposes of enforcement of fundamental rights and also for any other purposes. For giving similar jurisdiction to the Supreme Court, the need is of a law made by the Parliament and there is no need:of amendment of Constitution. Articles 32 and 226 : Judicial Review : Basic features of Constitution cannot be curtailed by Act of Parliament and Constitutional provisions.—Centre for PIL v. Union of India,3# the two writ petitions were filed under Article 32 of the Constitution challenging the appointment of P. J. Thomas an IAS, the respondent as Central Vigilance Commissioner under Section 4 (1) of the Central Vigilance Commission Act, 2003 against whom a criminal case was pending in the Court of Special Judge for the offence under Section 13 (1) of the Prevention of Corruption Act, 1988 read with Section 120-B of IPC (in Polmolein import case). The petitioners also alleged that P. J. Thomas had also played a big part in the cover up of the 2G Spectrum allocation which matter was sub-judice. The Supreme Court confined its judgment strictly on the legality of selection and recommendation of the appointment by High Powered Committee (HPC) and it clarified that any reference in the judgment should not be understood as observations on the merits of the case. Under Section 4 of the Vigilance Commission Act, 2003, the service conditions of the candidate being a public servant or civil servant in the past was not the sole criteria. The HPC must also take into account the question of institutional competency. If the selection adversely affects institutional competency and functioning, it is the duty of the selection committee not to recommend such a candidate. While recommending the name of P. J. Thomas the institutional integrity of the C. V. C. was not kept in mind. The HPC had to take into consideration the institutional competence, the values and impartiality of the institutions and had also to take an informed decision keeping in mind the above mentioned vital aspects. The Supreme Court to which the Prayer was made to issue the writ of quo warranto or any other writ, direction or order which the Court might deem fit and proper in the facts and circumstances of the case declared the recommendation of the name of P. J. Thomas as non-est in law and quashed his appointment. While issuing guidelines/directions, the Court through Chief JusticeRIGHT TO Con: 1 ISTITUTIONAL, REMEDIES ‘ |j—Not MC i fi om inj a ane adi eld hing pre ne this Court, if so satisfied, from issui ig gectaratio ;s in contravention of S rovinine gamseauenty i sri a arias in conte ion of the provisions of Central Vi i ce Commission Act ‘al Vigilance Commission Act. s a i 7 there is no merit in submissions advanced on behalf of cern a ‘spondent No, 2 aoe lo. 2 on non- (0 be enforced and rights and interests inability of writ petition. If public du rotected, the Court may, in furtheran re n ce Of public i a state of afta Pettis : to inquire he eee a of the subject-matter of litigation in ilnnaneat et one he Gor rae Not accountable to the Courts it esiecmeaig iss jegality o' lecisions when impugned under judicial review jurisdet ee isdiction, 003. ain In a landmark judgment in Stare of W.B. v it nocrtic Rights, West Bengal.‘ the complainant along waiaice beret waters political party had been staying in camps of Garpita, District Midna See Sner ore polit. They decided to return their hom Care r i cs from such a ee ac an ey HEH camp, the way they were jeal qutacke mis 1 workers and injured many members. TI i 2 lodged the First Information Report wae ee As to «senPe an investigations of the case. A writ petition under Article 236 was filed nthe High ourt of Calcutta by the Committee for Protection of Democratic Right: : W sponge Fable Interest Litigation alleging that three months had passed sie he incident net serious seme tend taken to investigate the crime. Since the Police adiainiseation was in the State's hand which was under the influence of the ruling party which trying to hide the incident to save its image the investigation be fd verto the CBLL tan independent agency. The High Court on the ase of the affidavit ofthe State fel that there is NO hope for justice in investigating the crime by the State police and if it was conducted fairly it would be involved with suspicion because all the assaillants were members of the ruling party. In view of this the High Court held it appropriate to hand over the investigation to the CBI. Aggrieved by this, the State Government filed a SPL in the Supreme Court. The main question for consideration was whether the High Court in exercise of its jurisdiction under Article 226 can direct the CBI established under the Delhi Special Police Act to investigate a cognizable offence which took place in the State of West Bengal, without the consent of the State Government. It was argued by the State referring to Entry 80 of List I of the Tenth Schedule and Entry 2 of List II and Sections 5 and 6 of the Special Police Act that on these constitutional and statutory provisions that there is a complete restriction on Parliament's legislative power in enacting any law permitting the police of one State to investigate an offence committed in another State, without the consent of that State. It was also said that the separation of powers between the three organs of the State requires that such organs to confine itself within the field alloted to it by the Constitution. Thus the main argument was that the federal structure as well as the principles of separation of powers being a part of the basic structure of the Constitution neither the Central Government can encroach upon the legislative power of the State in List II nor can the superior Courts exercise such jurisdiction which is prohibited by the Constitution. In brief, the High Court cannot issue any direction ignoring the statutory and constitutional provisions. On behalf the Union of India, it was argued that the alleged restriction on Parliament's legislative power under Entry 80 to List I and under Section 6 of the Special Police Act do not apply to the Supreme Court to exercise their powers under Article 32 and Article 226 of the Constitution as it is the obligation of the superior Courts to protect the citizens and enforcing fundamental rights. A five judge consti- Wlireltoech of (he Covticomeeing oC 2 Deaceeinae: Raveendran,