Role of Supreme Court in Protecting Individual Fundamental R

Supreme Court in securing individual fundamental right

INTRODUCTION

Supreme Court is the Highest Judicial body in the country. There are various jurisdiction and powers given to the Supreme Court. Supreme Court using its authority and give landmark decision with the changing needs of the society. In this research paper, we are going to look what are the jurisdictions under which an Individual Fundamental Rights is protected. In this research paper, we had analyzed through cases how judges interpret in the cases of Fundamental Rights.

The Researchers have looked upon the history of the Supreme Court in this paper and tries to find out what is the purpose behind the formation of Supreme Court. There is need of an Independent Judiciary which can solve the disputes between people and state, state, and other state. So, the constitution creates a broad three-tiered judicial system: District, High Court and Supreme Court. There were also demands of Fundamental Rights from our freedom fathers and Founding fathers of Constitution that the constitution should ensure the Fundamental Rights of the people. The demands were made far back in the year 1895, in the Constitution of India Bill, popularly known as the Swaraj Bill, which was inspired by Lokmanya Tilak.

Writ Jurisdiction is there to enforce a person Fundamental Rights, it provides the remedies for the violation of the Constitutional Rights. A Right without remedy is of no use, so, we can understand how important the Art. 32. The Rights would have been of no use if there is no effective mechanism to enforce it.

The Research methodology of the paper will be doctrinal, Researcher will read various articles, research papers, books, case laws, etc. and analyze the research topic.

The Research questions are whether Supreme Court is fulfilling its role of securing a person Fundamental Rights? Second, Whether Supreme Court is protecting Individual from arbitrary state actions? What is the expansion and protection of Fundamental Rights by SC?

HISTORY OF SUPREME COURT

Supreme Court is the Highest judicial authority in the country. People approach Supreme Court for breach of their Fundamental Rights and there are other jurisdictions which are given to the Supreme Court. So, we will see what the need behind the greatest decision body or the greatest dispute resolution body is. India got independence from British Rule in the year 1947. The Indian Constitution provides the blueprint for a rights-oriented, federal, secular, democratic polity. The Constitutional project, as envisaged by the framers, is not merely to delineate the structure of the state and define the relationship between the citizen and state. Rather, the constitution has a self-avowed social goal – to be a vehicle of social transformation.[1] Like other post-colonial Constitution, Indian Constitution also wants changes in social, political, and economic spheres to give effect the vision of an egalitarian social order.[2]

The Constitutional framers were aware that they need some strong mechanism to solve the disputes. There is need of an Independent Judiciary which can solve the disputes between people and state, state, and other state. So, the constitution creates a broad three-tiered judicial system: District, High Court and Supreme Court.

High Court and Supreme Court have given the powers to issue writ petitions and they are framed as the protector of the constitution. If any part of the constitution is violated. Then, High Courts and Supreme Court will solve the dispute in such cases. They are also given with another Jurisdictions such as they have their appellate jurisdiction in both civil and criminal jurisdiction. All the decision take by the Supreme Court is binding on other courts. Supreme Court is empowered by the constitution to pass any order, give direction to any authority within the country.

The Supreme Court started functioning in 1950. During the time of commencement, it consists of eight judges. With increasing time, Supreme Court has expanded and given various landmark judgment. The Supreme Court is leading the society towards the path for which our freedom fighters struggled. There are 67,279 cases pending before supreme court as of 04.04.21.

There were also demands of Fundamental Rights from our freedom fathers and Founding fathers of Constitution that the constitution should ensure the Fundamental Rights of the people. The demands were made far back in the year 1895, in the Constitution of India Bill, popularly known as the Swaraj Bill, which was inspired by Lokmanya Tilak.[3] In 1927 during the Madras Session, the Indian National Congress declared that the future constitution must contains a declaration of fundamental rights. In 1928, Motilal Nehru Committee report strongly recommended the presence of Fundamental Rights in the future constitution.

JURISDICTION OF SUPREME COURT

Supreme Court is the highest judicial authority in the country. It has given wide powers in terms of securing an Individual fundamental rights. The Jurisdictions of Supreme Court are:

Art. 129: Power to punish for its contempt.
Art. 131: Original Jurisdiction to decide inter-governmental disputes.
Art. 132 to 134: Appellate Jurisdiction.
Art. 136: Special leave petition.
Art. 32: Power to enforce an individual Fundamental Rights.
Art. 143: Advisory Jurisdiction
Art. 137: Power to review its own decision.
Art. 142: Court has power to make any order necessary for doing complete justice in any case.

The Researcher in this paper will look upon thing which are necessary to securing a person Fundamental Rights. So, the paper will majorly deal with the Articles 32 which is especially important Jurisdiction to secure any Individual Fundamental Rights. Others Jurisdiction can also be invoked where the issue is related to Fundamental Right but mainly within this article an Individual approach to the Supreme Court.

A. ARTICLE 32: WRIT JURISDICTION

A person can file a writ petition under Art. 32 for writ of nature of Habeas Corpus, mandamus, prohibition, quo warranto and certiorari. Each type of writ covers the scope and protect Fundamental Rights of a person in different way. Such as Habeas Corpus is a Latin term which means ‘to have the body of’, it is enforced to protect a person from Unlawful Detention, In Simple terms, the Court asks the authority to present the body of a person in front of them. Mandamus means ‘to command’, by the application of this writ court can order public authority to properly function. Prohibition means ‘to forbid’, it prevents a lower court to proceed exceeding its jurisdiction. Quo warranto means ‘by what warrant’, it is applied to know whether particular public office have legal jurisdiction or legality in taking decisions in matters of that person. Certiorari means ‘to be certified, by application of this Supreme Court transfer the case from one court to other when in the opinion of the Court that it may result in erroneous results or it exceeds the jurisdiction of that lower court.

Therefore, The Writ Jurisdiction of Supreme Court makes it an important pillar for protecting and guaranteeing persons Fundamental Rights. The Supreme Court also stated the Same while Commenting on the Writ Jurisdiction in Daryao v. State of Uttar Pradesh[4]:

“The Fundamental Rights are intended not only to protect individual’s rights, but they are based on high public policy. Liberty of the individual and the protection of the Fundamental Rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this court to uphold these rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself.”

In Romesh Thappar v. State of Madras[5], Supreme Court stated that as a protector and guarantor of Fundamental Rights. It cannot deny the application seeking protection for infringement of such rights. Particularly, Talking about Art. 32 Supreme Court in Case of Prem Chand Garg v. Excise Commissioner, UP[6]:

“The Fundamental Right to move to this Court can therefore be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should regard itself “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights…In discharging the duties assigned to it, this Court has to play the role of a ‘sentinel on the qui vive’ and it must always regard it as its solemn duty to protect the said Fundamental Rights ‘Zealously and vigilantly.”

Therefore, by these words of Supreme Court we can understand how important the writ jurisdiction is to ensure a person fundamental right.

Article 32 is an overly broad provision of the Constitution, it is a fundamental right, it cannot be restricted. Even if some laws specifically mention that the Administrative action and decision would be final, in those cases writ jurisdiction can be invoked.

In Khatri v. State of Bihar,[7] several petitioners filed a writ petition under Article 32 for enforcement of their Fundamental Right under Article 21, there allegation was police officer blinded them while they were in the custody. The Issue was whether the court could order production of certain reports submitted by the CID to the State Government and some correspondence between the Government and certain officers. The Respondents contended that the material cannot be produced as they were protected under Sections 162 and 172 of the Cr.P.C.

The Contentions of Respondents were rejected by the Supreme Court Stating that proceeding under Article 32 are neither an ‘inquiry’ nor a ‘trial’ for an offence. Neither the Supreme Court is a Criminal Court while hearing a writ petition nor are the petitioners accused persons and so these sections of the Cr.P.C. are not applicable to the Court’s writ jurisdiction under Article 32.

Supreme Court in the case of Bandhua Mukti Morcha[8] clarified that there is no specific procedure to be followed or the court must adopt an adversary procedure. It is on the discretion of the court that court may adopt any procedure which is necessary for the enforcement of Fundamental Rights.

LANDMARK JUDGMENT DECIDED BY SC

Judiciary is the ultimate guardian of the human rights of the people. It not only protects the rights enumerated in Constitution but also has recognized certain unenumerated rights by interpreting the fundamental rights and widened their scope. As a result, people not only enjoy enumerated rights but also un-enumerated rights as well.[9] There were various landmark cases decided by such as in Maneka Gandhi v. Union of India[10], court stated that right to travel abroad is within right to life. The Court also stated that the procedure established by law must be just, fair and reasonable. Court also bring relation between Article 14, 19 & 21.

In People’s Union for Civil Liberties and another v. State of Maharashtra and ors., it was held by the supreme court that right to life includes right to live with human dignity. In Labourers working on Salal Project v. State of J&K,[11] it was held by the Supreme Court that child below the age of 14 years cannot be employed and allowed to work in construction process.

Court also passes necessary guidelines when it thinks necessary for the interest of people and for their fundamental rights such as in Vishaka & Ors. v. State of Rajasthan[12], Supreme Court laid certain guidelines for welfare of women and for their protection from harassment at workplaces. After this case, legislature also enacted Prevention of Sexual harassment of women at Workplace Act, 2013.

In the Criminal Jurisprudence of the Country, Supreme Court protected various Fundamental Rights of Arrested person. Article 20[13] provides rights of person against conviction of offences. In case of Sakshi v. UOI[14], Supreme Court refused to give wider interpretation of word rape in section 375 IPC on the grounds that it will violate Art. 20(1).

In Sajjan Singh v. State of Punjab,[15] Sec. 5(3) of Prevention of Corruption Act was challenged on the grounds that it violates the Article 20(1) of the constitution It was argued that when section 5(3) speaks of the accused being in possession of pecuniary resources, or property disproportionate to this known source of income, only the pecuniary resources or property acquired after the date of the Act is meant. The Court in its words explained that: “A statute cannot be said to be retrospective because a part of the requisites for its actions is drawn from a time antecedent to it passing.”

Court also stated that the Act does not creates any new offence. It just defines a new method of taking evidence to prove that the officer has committed the offence of Criminal Misconduct.

In K Satwant Singh v. State of Punjab,[16] a constitution bench was settled to consider the scope of Article 20(1). It was held by the court that Article 20(1) protects the person from increase in the punishment. It cannot be enforced when the person is in advantage by the decrease in punishment or penalty.

A. CASES IN WHICH SC PROTECTED INDIVIDUAL FROM ARBITRARY STATE ACTIONS

In AP Aggarwal v. Government of NCT of Delhi,[17] It was stated by the court that Arbitrary State Action infringes Article 14. Also, it was said that, whenever there is arbitrariness into actions, Article 14 springs into action and court strike down such actions.

In EP Royappa v. State of Tamil Nadu,[18] Court stated that equality is antithetic to arbitrariness. Any action which is arbitrary must involve the negation of equality. Similarly, In Bachan Singh v. State of Punjab,[19] Court stated that rule of permeates the entire fabric of the rule of law, whenever there is arbitrariness there is denial of rule of law.

There are many more cases in which Supreme Court has protected the right to equality of a person. But the important cases related to protection of an Individual from arbitrary state action have been dealt with. Based on cases discussed above, we get the idea that Supreme Court protect an Individual from Arbitrary State actions.

B. WELFARE CASES

Article 15 of the constitution which provides rights against discrimination on the basis of the religion, race, caste, sex, place of birth or any of them. There are many disputes which arise due to this provision. The main question which arises from this Article is regarding the reservation given to socially and educationally backward people. Such as after the enactment of first Constitutional Amendment in 1951, Balaji was the first regarding reservation which came before Supreme Court. In Balaji v. State of Mysore[20], The facts of cases where, Mysore state government have divided the population in Backward and more backward classes to give reservation. Therefore, there was 15% reservation given to SC, 3% to ST, 28% to Backward classes and 22% to more backward classes. So, the total reservation given is 68%. The Court held that giving reservation to SC/ST is justified, poverty cannot be the sole criteria for reservation, Caste is the factor, but it cannot be the sole factor, Court also established that there should be ceiling limit of 50% in the cases of reservation.

In KC Vasanth v. State of Karnataka[21], In this case court stated that caste cannot be the sole determinant of backwardness, but it is not an irrelevant test either and can be taken into account along with certain other factors. In State of Kerala v. NM Thomas,[22] J Iyer observed that:

“A word of sociological caution. In the light of experience, here and elsewhere the danger of ‘reservation’, it seems to me, is three-fold. Its benefits, by and large, are snatched away by the top creamy layer of the ‘backward’ caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. Secondly, this claim is over-played extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment but wish to wear the “weakest section” label as a means to score over their near-equals formally categorized as the upper brackets. Lastly, a lasting solution to the problem comes only from improvement of social environment, added educational facilities and cross fertilization of castes by inter-caste and inter-class marriages….

By this liberal wording of Iyer J, we can understand the approach of our honorable judges, that how much they are concerned about the growth and society and securing an Individual Fundamental Right by bringing in equality in terms of opportunity in employment and education. Very rightly, he pointed out that if we want social justice and a better social environment. We have to start doing inter-caste marriages. He has taken the humanitarian approach that every caste is a human being, and the caste is made on the earth, it is not something which Individual got by the virtue of nature. So, we should understand and adopt changes to bring stability and equality in the society for which our constitutional makers desired.

Finally, the most important case of reservation, that is Indra Sawhney v. UOI,[23] it is also known as Mandal Commission case, in this case court held caste may be one of the sole criteria of reservation, but it should fulfill some criteria of backwardness. Court also stated that there is no bar in categorizing into backward and the more backward classes. Concept of creamy layer was recommended by the court in this case. Court said 50% should be the ceiling limit and anything above it would affect the people on merit. Regarding carry forward rule, Court stated that there should be provision of carry-forward, but it ought not to be more than 50% of the total reservations.

C. IMPORTANT JUDGEMENT REGARDING RIGHT TO FREEDOM

Article 19 of the Constitution provides six rights to the citizens that are freedom of speech and expression, freedom to protest peacefully, freedom to form associations, freedom to move anywhere in India and freedom to carry any trade or occupation. These guaranteed freedoms are particularly important for any democratic country. The Freedom of speech is considered as mother of all liberties.[24] So, it becomes an important duty for the court to protect these freedoms guaranteed by the Constitution.

Article 19(2)[25] provides the restriction to the freedom of speech and expressions, there should be a balance between the restrictions and the freedom granted. So, Sub-clause 2 specifically mention that the restriction imposed by the state should be reasonable and it should be in the interest of the sovereignty and integrity of India, the security of state, friendly relations with Foreign states, Public order, decency or morality, or in relation to contempt of court, defamation or incitement of an offence.

In State of Madras v VG Row[26], some broad perspective had been established by SC in this case, in this case court stated that both substantive and procedural aspects of law will be checked. In Chintaman Rao v State of Madhya Pradesh[27], Supreme Court also established certain factors to consider reasonableness of a restriction in this case, these are: the duration and extend of the restrictions; the circumstances under which, and the manner in which, that imposition has been authorized. The nature of rights imposed, the extend and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all these considerations enter into judicial verdict.

The most significant development is established in the case of Papnasam Labour Union v Madhura Coats Limited[28], In this case court established the points of unreasonableness of the restrictions om which a person can challenge. These points are:

The restriction must not be arbitrary, and its nature should not go beyond what is required and it should be direct with the purpose which sought to be achieved.
No universal principle can be applied in all cases, it varies from case to case.
In interpreting the constitutional provisions, the court should be alive to the felt need of the society and complex issues facing the people which the legislature intends to solve through effective legislations.
The judicial approach in solving such kinds of problem, must necessarily be dynamic, pragmatic and elastic.
The court should examine the social control envisaged in Article 19 is achieved through the restriction or not.
The right guaranteed under Article 19 is not absolute right, hence the restrictions which is imposed in public interest have some social welfare protection and in essence with the prevailing social values.
The restriction must be reasonable and in consistent with Article 14 of the constitution

Hence, the Supreme Court through various cases gives us the idea about what is a reasonable restriction and how it should be checked. The most important thing about the restrictions is that first, it should be reasonable and second, the contents of restriction should be under subclause 3. Third, the restrictions should have some welfare characteristics. Then, it is a reasonable restriction.

Supreme Court have taken stance and defined what should be reasonable and what should not be, the main question arises is that whether court will look on the subject matter or the effect of the restriction. To answer that in Bennett Coleman & company v UOI[29] the court established that in this case or any case of reasonability the subject matter test cannot be applied. Because a law may have a different subject matter, but its effect may be direct also. The effect test is also applied in deciding Maneka Gandhi v UOI[30] and many other cases. Such as Bank Nationalization case. Previously, the subject matter test had been applied in Ak Gopalan case[31], the view in Gopalan case has been rejected by supreme court finally in the Maneka Gandhi case. And from that time, for adjudging the reasonability the test of effect test had been applied.

Therefore, Supreme Court, according to the need of the society and interest of individual interpreted the constitutional provisions in such a way that it benefited the people of the country.

There are several benefits of using the effect test, such as it expands the scope of fundamental rights which is been narrowed if subject matter test has been used. This approach also adds up the relationship and dependency of other fundamental rights on each other such as now Article 19, 21 and 14 each article can be used synchronously, and it also provide more protection to the citizens and court is also adopting such interpretation as to maximize the benefits to the citizens.

Right to access internet is itself a part which of fundamental right under part III of Indan constitution, which is been established in Anuradha Bhasin v. Union of India[32]. It was held that:

“We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection Under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate Under Article 19(2) and (6) of the Constitution, inclusive of the test of proportionality.”

EXTEND OF PROTECTION OF FUNDAMENTAL RIGHTS

There is always a question in mind of people that what is the extend of protection of Fundamental Rights is guaranteed by Constitution. How far Judiciary will go to interpret the provision so as to protect individual fundamental rights with changing need of society. In Francis Coralie Mullin v. Union Territory of Delhi,[33] Supreme Court stated that: “a constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges”.

A. THE DEVELOPMENT OF PUBLIC INTEREST LITIGATION (PIL)

The development of public interest litigation plays an especially important role for securing person fundamental rights who cannot approach to the Supreme Court directly. PIL is filed by the a person who is not directly affected or person having interest in the matter. The matter should be of public interest that can be filed through writ petition in the Court under Article 32. In SP Gupta v. UOI[34], the court observed that the writ petitions under Article 226 by lawyers raising certain significant questions concerning High Court judges were held maintainable because the lawyers practicing in the High Court have interest regarding the independence of High Court and case quickly disposed by them. This case is also the precursor of PIL in India.

In the same case, Bhagwati, J, states the broad aspect of PIL: “Whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such wrong or public injury.”

B. PROTECTION OF INDIVIDUAL FUNDAMENTAL RIGHT BY JUDICIAL CREATIVITY

Judges play an crucial role; they interpret the provision of the Constitution with the changing needs of the society. There are two ways in which Constitution can be interpreted i.e., literal interpretation and liberal interpretation. Constitution is the mechanism under which the laws are to be made and not merely an Act which declares what the law is to be.[35] Also, a constitutional provision is never static, it is every evolving and ever changing and therefor, the court should not adopt narrow interpretation and particularly the Fundamental Rights should be given more broader interpretation.[36]

We have seen that Supreme Court protect us from state arbitrary actions. This is due to the broad interpretation of Article 14 any arbitrary action of the state infringes the right to equality. Similarly, the Court using liberal interpretation in Maneka Gandhi v. UOI, has interpreted right to life in such a manner that several Fundamental Rights are implied from Article 21 that are: right to privacy, right to education, right to clean and pollution free environment, right to shelter, right against sexual harassment etc.

Thus, we can say that Supreme Court plays a particularly important role in protecting an Individual Fundamental Rights and the Scope of the protection is very wide. Court may consider various circumstances while interpreting Fundamental Rights and ensure that the purpose of that right is fulfilled by their broad interpretation

CONCLUSION

After Analyzing everything, the researchers conclude that Supreme Court is given wide power in securing Fundamental Right and by this power they play an essential role in plural society like India. The Extend of security provided by Supreme Court depends on the interpretation of Constitutional Provision. It has been observed by the court itself that Court should adopt liberal rule of interpretation while interpreting provisions of Fundamental Rights and history also shows that court adopted such interpretation, to form rights other than expressly mentioned in the Constitution.

The Purpose of constitution of Supreme Court is to protect the Constitution of India from exploitation, for fulfillment of remedies in case of breach of Fundamental Rights. According to researchers our Hon’ble Supreme Court is fulfilling the goals and vision of our freedom fighters and drafters of Constitution. We have also seen that Supreme Court had got inspiration from Global north countries while interpreting the similar provision in the Constitution. Such as right to life concept as seen today is hugely inspired by US Supreme Court decision. Many of decision is also inspired by European court of Human rights. However, in some case Supreme Court have developed their own jurisprudence in cases like Bhopal Gas Tragedy by developing concept of Absolute liability. We have also seen that India has its own reservation policy and Supreme Court have brought its own original interpretation to such provisions and indeed a pioneer in the concept of reservation. Hence, we can say that Judiciary plays a very significant role in the plural society like India.

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