This post has been written keeping in mind the requirement of only Indian subcontinent.
It is agreed that irrespective of its scope and violation, the issue of ‘Fundamental Rights’ has become an outdated issue already debated much beyond its scope. But one thing that needs to be reminded is that though all mutuality are not part of ‘Fundamental rights’ yet fundamental rights, as enshrined in article 19 of the Indian constitution, essentially thrive on the concept of mutuality. Concerning disputes related to individuals, the discretionary power of court is enough to handle such issues. But in the issues like ‘State vs. Individual’ it is an important index of the coming events. It has to be ensured whether an action by State in this regard was/is born out of State’s necessity in defense of Constitution & public safety or it was/is simply out of some personal eccentricity of the person acting on behalf of state.
Let us have a brief idea of the constitutional provisions in this regard.
The enactment of Indian constitution by British Govt, starting her rule in 1858 after taking over power from East India company, has got its root in the various Indian Council acts(1861,1892,1909). But the true beginning of the same is regarded to be Govt of India Act 1935 . This constitution consisted of 321 sections and 10 schedules. The major part of the present day constitution, consisting of 448 Articles 12 Schedules and 5 Appendices incorporating 98 successful amendments, has been drawn from this constitution.
The framework of 448 articles has been divided into XXII parts. Part III of the constitution is devoted to Fundamental Rights which, along with Part IV as Directive Principles, go to constitute the hub of our democracy. It consists of 24 Articles (12-35) which in turn consists of various clauses/sections. The fundamental rights can be broadly divided into following categories.
• Right to equality before law irrespective of affiliations- Article 14-18
• Right to freedom and Personal Privacy-Article 19-22
• Right against exploitation such as forced labor-Article 23-24
• Right to freedom of religion – Article 25-28
• Cultural and educational rights (Interest and Rights of minorities) – Article 29-31
• Right to constitutional remedies -Article 32
Remaining of the articles of this part is devoted to the matter of restriction on these rights under special circumstances such as curfew or war emergency and to deal with the laws which are inconsistent with the Fundamental rights. Part II is concerned with Right to Citizenship but that is not counted as Fundamental right. There are so many such other rights.
In addition to the provisions for governance of our democratic socialist republic, as enshrined under Constitution and known as Constitutional law, Indian system of justice along with punitive measures for any violation of the law of the land is based on two systems of codes. The system is based on inquisitorial method as distinct from adversarial so that investigation and proceedings has to be demarcated based on distinct code of guidance for the two.
1•) Indian Penal Code-
Indian system of law & justice is supported by an elaborate set of penal codes, to penalize a culprit for an offence after proper trial before a court of law, known as Indian Penal Code (IPC). This system comprises an elaborate set of 511 section divided into 23 chapters. This system isolates and elaborates on all possible types of violation of laws, or offences, and suitable punitive measures for the same. This was originally prepared by a First law commission, under the chairmanship of Lord Macaulay (Thomas Babington Macaulay, the then viceroy of India), as set up in 1834. This came into force in 1860. Though since then it has been subjected to several amendments, repeal and upgrade yet it is still popularly called as IPC 1860. Modern crimes involving technology, unheard of during Macaulay’s time, fit easily within the Code. The present day penal code systems of the India, Pakistan, Bangladesh, Burma, Sri Lanka, Malaysia, Singapore and Brunei are essentially based on the IPC 1860. , The Parliament’s power to legislate in respect of Jammu & Kashmir was curtailed by Article 370 of the Constitution of India. So J & K uses its own code called Ranbir Code but has been also derived from the same. But Of late under a proposal of Home ministry the Article 370 stands to have been repealed, as approved by both the houses by parliament. Present day IPC of India comprises 511 sections divided into 23 Chapters. It has been subjected to 76 amendments since 1860.
2•) Criminal Procedure Code- This consists of 528 section, 2 schedules and 56 forms, divided into 37 chapters. This system essentially lays down rule for classifying the offences from the point of view of Investigation and procedure to be followed involving police/investigation bureau, prosecutor and courts of law, scope and limit of the all types of courts, tribunals, except that of supreme court which is covered under Constitutional laws, in hearing a case and passing judgment/order as per Indian Penal code
We have a provision for 5 types of ‘writ petition’ under the fundamental right of ‘Right to Constitutional remedies’ on the issues such as mentioned below.
• Habeas corpus-Against Illegal detention
Mandamus- To force lower court or to a public authority to
pay attention to petitioner’s request
and to perform the duty assigned
• Prohibition- To stop proceedings in subordinate court
Certiorari- To quash an order/judgment passed by the
same in a case which is beyond the
Jurisdiction of the court or is in excess of the
of authority vested in it or is against the
Principle of natural justice or the order contains
an error of judgment in appreciating facts, and
to transfer the case to the court, including
itself, entitled for hearing the case.
Quo-Warranto.- Jurisdictional transgression or misuse
of office by public authority in violation of
the spirit of constitution
A writ petition can be filed either in High Court or in Supreme Court straightway as per the relative importance of the issue/case. Writ is issued by the said court under various power vested with it under several provisions as contained therein chapter IV of Part V of constitution
This is different from provision of Appeal in which one can file petition in higher court against order of subordinate court in the sense that Appeal has to be granted by the Court which passed the order/judgment. Then appeal can go to Supreme Court only if High court certifies that the issue involves a substantial question of law requiring interpretation of constitution or involves constitutional matters. However against the order of subordinate courts/tribunal below High Court level ‘Special Leave to Appeal’ may be filed in Supreme Court if High court does not regard it worthy of consideration but appellant impresses it enough upon the Supreme Court that a gross injustice has been done.
An adolescent might be inclined to think that whilst there is so much of liberty and convenience in form of the elaborate set of Writ Petitions, the power of all courts other than that of Supreme Court is for name’s sake and the very concept of Appeal, as distinct from firsthand petition, is farce. There is nothing like that. In filing Petition or Appeal the sole aim of lawyer concerned is to win the suit, right or wrong , but a request for Writ Petition is accepted by the lawyer oneself only if the same is convinced enough without any mercantile interest that the client is fully justified as per both law and ethics . Writ petition are accepted by the court very carefully and cautiously so that it may not come in conflict with any genuine legal or discretionary power of any other court or public authority or the concept like separation of power is not sacrificed. In fact if an issue does not involve the issues like taking advantage of loophole or lacuna in legal provisions/law or any authority of Union wing of Govt is not involved or some form of prejudice or bias based on regionalism has not been resorted to then both Appeal and Writ Petition remain confined mostly to High courts. In this concern it is worth reminding that High courts and Supreme Court are basically Appellate court, barring aside a few special circumstances. But I think that in cases pertaining to criminal matters, but not necessarily civil, and inviting punishment other than Capital Punishment, if a decree/verdict has been delivered then irrespective of Writ provisions Appeal should not be allowed to be entertained before the order has been executed once. Then sometimes the principle of natural justice and unsaid principle of relative justice may come in conflict with each other. Here the discretionary power of the court is the only solution. Evidently if an issue involves the element of any form of coercion having criminal implication or potential threat to life, liberty and property then it may become a judicial issue.
Now coming back to the issue of the jurisdiction of Home Ministry, in contrast with that of other ministries, it is confined to the issues like management and control of natural resources, natural calamities, State/National boundaries, scheme for upliftment of downtrodden, cultural development schemes, Welfare State issues like accomodation and employment for downtrodden, pension, gratuity, State insurance, free elementary education, Law & Order in relation to mob violence, Terrorism and Organized crime etc. It has nothing much to do with Industries, Commerce, Trade, Banking etc. Regarding law & order it is primarily a State subject. That is why we have different Police Service for different States. However Home Ministry can keep tab over the same via IAS/IPS officer of the area. Further it has several secondary roles like hearing Public OR Corporate affairs Grievances, appointments in Investigation bureaus or other Public bodies etc. All said and done there is no need for any authority in speaking well of someone.
It is an irony that a country which had been not only the torch bearer of the concept of law and justice but actually laid the foundation for the same in our subcontinent is itself a suffering from, or is rather victim of, the dilemma regarding preponderance of law over karma. We were under the impression that they have mastered over the subtleties of the two but now we arrive at a conclusion that they devised it simply as means to rule without themselves believing in it. So far as the regard for them by Asians amidst all adverse situations is concerned it is not regard but burst of ecstatic cry over some windfall kind of economic and physical well being. They should not be swayed away by it. But at the same time it is no one’s fault. I am not at all trying to establish a regime of altruism. .