“If I was asked to name any particular Article in this Constitution as the most important- an article without which this Constitution would be a nullity- I could not refer to any other Article except this one…………. it is the very soul of the Constitution and the very heart of it.”
- Dr. Ambedkar.
INTRODUCTION
A right without a remedy doesn't have much substance. the basic rights guaranteed by the Constitution would are worth nothing had the Constitution not provided an efficient mechanism for his or her enforcement.
Under the title ‘right to Constitutional remedies,’ the Constitution of India has addressed (1) remedies for enforcement of rights conferred by this Part (Art. 32); (2) powers of the parliament to switch the rights conferred by this Part in their application to force, etc. (Art. 33); (3) restrictions on rights conferred by this part world martial laws are effective in any area (Art. 34); (4) Legislation to present effect to the provisions of this part
It is the remedy that creates the ride really. If there's no remedy, there's no right the least bit. Therefore, within the fitness of the items, our Constitution-makers have incorporated a protracted list of fundamental rights that have also provided for a good remedy for the enforcement of those rights under article 32 of the Constitution. Article 32 is itself a fundamental right. Under Art. 226, to implement the fundamental rights, it empowers all the High court to issue writs.
It is to be noted here that the power has been given to issue appropriate directions, orders, or writs. The Supreme Court 10 issue writs include 5 writs mentioned in article 32-Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari writs.
ARE CONSTITUTIONAL REMEDIES ABSOLUTE?
Article 32 is additionally a fundamental right, and no fundamental right is absolute in nature. Thus, Constitutional remedies don't seem to be absolute in nature. During certain circumstances, the privileges that citizens should get under Article 32 are nullified are as follows:
1. Delay or Laches
It is the basic principle of administration of justice that the courts will help those that are vigilant about their rights and who don't sleep on their rights. The Courts will refuse to exercise their jurisdiction in favor of a celebration that involves the court after a substantial delay and is otherwise guilty of laches. Thus, the remedy under article 32 must usually be sought within an inexpensive time. there's no prescribed period of limitation of 90 days (as provided under the Limitation Act) for filing any petition under article 32.
The only principle is that the court mustn't examine stale cases because the court helps the vigilant and not the indolent. it's a rule of judicial circumspection which must be applied wisely. But if the reason given for the delay is convincing and acceptable, the word petition shouldn't be dismissed on the only ground of delay.[1]
Hidayatullah, C.J., however, felt that no hard and fast rule can be adopted in this matter. He said “The question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within the Limitation Act by the reason of some article but litigant to move this Court need not necessarily, give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case, this court may entertain such a petition even after a lapse of time. It will all depend on what the breach of fundamental right and the remedies are and why the delay arose.”
At least in the case of violation of the fundamental right to life and personal liberty, delay, or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner.[2]
2. Emergency
Under Art. 359 of the Constitution, the President has been authorized to suspend the fundamental right during the emergency. It says that while the proclamation of emergency is in operation, the president may by order declare the right to move any quote for the enforcement of such fundamental rights as mentioned in the order (except article 20 and 21) in all the proceedings pending in any court for enforcement of such rights shall remain suspended for the period during the proclamation is in force or for such shorter period may be specified in the order.
Article 358 curtails the rights granted by the constitution by the parliament. Under this article, as soon as the proclamation of emergency is issued under article 352 and so long as it lasts, article 19 is suspended. The power of the legislatures and the executive to that extent is made wider. although article 19 will revive and become operative as soon as the proclamation ceased to operate, article 358 expressly provides that, “things done or omitted to be done during the emergency” cannot be challenged even after the emergency is over. In other words, article 19 cannot be questioned even after the emergency is over.
3. Members of Armed Forces
Article 33, which is an exemption to fundamental rights, empowers parliament to restrict or abrogate bylaw fundamental rights in the application to (a) the members of the armed forces; (b) the force is charged with maintenance of public order (c) the persons employed in any bureau or other organization established by the State for purposes of intelligence and (d) persons employed in connection with the tele-communication system set up for the purposes of any force, Bureau or organization refer to in clauses (a) to (c) of the article 33 of the constitution.
The objective of this restriction under this article is to ensure the proper discharge of their duties and maintenance of discipline among them and article is an exception to the operation of article 13 clause (2) which prohibits taking away or abridgement of the rights granted by part three of the constitution. Hence, a law passed under article 33 cannot be challenged under article 13 (2).
4. Martial Law
Article 34 provides that “notwithstanding anything in the foregoing provisions of this part, parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect to any act done by him for the maintenance or restoration of order in any area where martial law was in force.”
The indemnity validates any sentence passed, the punishment inflicted, forfeiture order, or other act done under martial law in such areas. It offers an indemnity to the members of the armed forces of those connected with maintenance or restoration of order within India for all acts done within an area where martial law is in force. So, an act of immunity passes by parliament cannot be challenged that it violates fundamental rights.
This power of parliament is, however, subject to restrictions:
1. The act must be done for the maintenance or restoration of order,
2. Martial law was in force in the area where the act was done.
CONCLUSION
As the Yale historian Rohit De reminds us vividly, “Article 32 makes the apex court into a “people’s court”. And future historians should not be able to conclude that the Court deliberately dealt deathblows to this “soul” of the Constitution, as Babasaheb Ambedkar described Article 32.”
Neither the Constitutional rights and remedies are absolute, nor these rights and remedies are always available for all at all the time. There is a need to develop fast track court in matters related to writs so that there won’t be a lapse of time and justice is delivered on time and in case of emergency if our fundamental rights are violated (especially Art 19, 20, and 21) it should be challenged after the emergency.
[1] State of U.P vs Bahadur Singh (1983) 3 SCC 73 [2] Assam Sanmilita Mahasangha vs. UOI, AIR 2015 SC 783 at p..799