Right to Constitutional Remedies , Writs and Issue of Article 35A
This article deals with ‘Right to Constitutional Remedies , Writs and Issue of Article 35A .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here
Right To Constitutional Remedies
- Article 32 gives Right to Constitutional Remedies . It constitutes Right to move to Supreme Court for enforcement of Fundamental Rights
- Supreme Court has power to issue writs for enforcement of Fundamental Rights
- Parliament can empower any other court to issue writs without doing prejudice to powers of Supreme Court & other court don’t include High Court
- President can suspend this right during National emergency
- Supreme Court declared this to be basic feature of Constitution
- Most important Article according to BR Ambedkar. Constitution would be nullity without this
Types of Writs
Writs concept borrowed from English law where they are called Prerogative Writs
There are 5 type of writs
1 . Habeas Corpus
- Meaning – to have the body of
- Order issued by court to public authority as well as private individual who has detained other person to produce body before it
- Meaning – We Command
- Issued by court against public official(not private) asking him to perform his official duties that he has failed or refused to perform
- Against both judicial & administrative authorities (tribunal, corporation, inferior court, tribunal or govt)
- Meaning – to forbid
- Issued by higher court to lower court
- To prevent the latter from exceeding its jurisdiction
- Unlike other writs it directs inactivity (other calls for activity)
- Meaning – to be certified
- Issued by higher court or tribunal to lower court
- Either to transfer a case pending with later to itself or to squash the order of later issued on grounds of excess of jurisdiction, lack of jurisdiction or error of law
- Unlike Prohibition which is preventive it is both preventive & correctiv
5. Quo Warranto
- Meaning – By what authority
- Issued by court to inquire into legality of claim of person to public office – office of permanent character created by statute & not of ministerial office or private office
- Can be sought by any interested person(rest by aggrieved person)
Armed Forces & Fundamental Rights
- Article 33 – empowers Parliament to abrogate Fundamental Rights of members of Armed forces, police forces, intelligence agencies, para military force to ensure proper discharge of duty
- Any such law can be made by parliament. Accordingly parliament enacted Army Act, Navy Act, Air force Act, BSF Act etc
- Also include non combatants like barber, cook etc in armed forces
- Can also exclude court martial from writ jurisdiction of Supreme Court & High Courts
Martial Law & Fundamental Rights
- Article 34 – provide restrictions on Fundamental Rights while Martial Law is in force in any area
- Empowers Parliament to indemnify any government servant or any other person for any act done by him in connection with maintenance or restoration of order while martial law is in place & this cant be challenged in any court
- Concept of Martial law taken from English law but expression Martial Law is not defined anywhere in constitution . It Literally means Military Law
- Martial law can be declared in any area within India under extraordinary conditions like war, rebellion, riots or violent resistance of Law
- Supreme Court Judgement – declaration of Martial Law doesn’t result in suspension of Habeas corpus writ
Effecting Certain Fundamental Rights
- Article 35 – Power to make laws to give effect to certain specified FR is with Parliament & not state legislature
- Ensure uniformity throughout India
- Article 35A of the
constitution empowers J&K
- Define state’s “permanent residents” and
- Their special rights and privileges
without attracting a challenge on grounds of violating the Right to Equality of people from other States or any other right under the Constitution
- Hence, Article 35A protects
certain provisions of the J&K Constitution which
- Denies property rights to native women who marry outside the State.
- The denial of these rights extend to her children
- bars non-J&K state subjects to settle and buy property in J&K.
Issue : Constitutionality of Article 35 A challenged
Question of constitutionality of Article 35A is likely to be handled by a 5-judge constitution bench.
- Article 35A was incorporated into the Constitution in 1954 by a Presidential order . Hence, it was added without undergoing the procedure for constitutional amendments as laid down in Article 368. It was issued in exercise of the power conferred under Article 370 (1) (d) of the Constitution. Whether such power also extends to inserting a new Article in the Constitution is contentious.
- Discriminatory against non-residents as far as government jobs and real estate purchases are concerned. Thus, violating fundamental rights under Articles 14, 19 and 21 as it treats non-permanent residents of J&K as ‘second-class’ citizens.
- Discriminatory against women who marry outside state
Why it Shouldn’t be removed?
- Article 370 & 35 A are complementary and Article 370 will be nothing if Article 35 A is not there
- Large scale apprehension in the valley that it will bring large scale demographic changes in Muslim majority valley.
- Kashmiris will be further alienated . At this time, when situation in Kashmir is already very tense, such adventure is uncalled for.