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    if any person/institution deprives his fundamental rights, he can appeal in….........court.

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    स्रोत : indiankanoon.org

    Absolute Private Rights Can Not Be Enforced Through Article 226 Of The Indian Constitution

    A writ is a formal written order issued by a Court to redress Fundamental Rights which have been encroached upon of a citizen. These remedies generally can be claimed against public officers re...

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    Absolute Private Rights Can Not Be Enforced Through Article 226 Of The Indian Constitution

    By Atishchakraborty | Views 15018

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    A writ is a formal written order issued by a Court to redress Fundamental Rights which have been encroached upon of a citizen. These remedies generally can be claimed against public officers representing a public office. Any warrant, orders, directions, and so on, issued by the Supreme Court or the High court are called writs.

    A writ petition can be filed in the High Court (Article 226) or the Supreme Court (Article 32) of India when any of your fundamental rights are violated. The jurisdiction with the High Court (Article 226) with regards to a writ petition is wider and extends to legal rights too.

    Who Can Apply?

    The applicability of Article 226 depends on the competence of the person and whether such a matter is capable of being heard. The existence of legal rights must be the right of the petitioner and this acts on the basis on which the jurisdiction of this article is brought into play.

    The existence of legal rights must be the right of the petitioner himself and his acts as the basis on which the jurisdiction of this article is brought into play. Generally, a person who is empowered to move the Court is because the particular is aggrieved by an act of the public authority. When an aggrieved party applies, the Court intervenes and aims to provide justice. The Court while making such intervention also needs to take into account whether public interest demands its intervention.

    An aggrieved person may apply for an appeal if the person can prove that the person has been denied or deprived his rights or burdened with legal burden. The main test to decide whether a person is aggrieved is to check whether the order affects his interest prejudicially.

    An application even when made by a stranger in a matter which the Court deems that it is necessary to do so in furtherance of public interest is allowed. In the landmark case of Chairman, Railway Board vs. Chandrima Das (2000) 2 SCC 465 the Calcutta High Court allowed a practising advocate of the High Court at Calcutta to file a petition on behalf of the Bangladeshi woman who was picked from the railway station by the railway employees and was raped in a nearby Railway Yatri Niwas. The Apex Court upheld the locus standi of the advocate to file the petition on her behalf and as the offence was a gross violation of Fundamental Rights under Article 21 and as such the petition was for a public interest.

    A person in trade can object to granting of licence to a rival by approaching the High Court under Article 226 only if it violates a statutory provision. In case of starting of a rival business of a similar nature is started it does not amount to a reasoned ground of challenge unless it is restricted as a monopoly by a statute.

    The bidder or tenderer can challenge statements given arbitrarily by the courts in contravention of statutory provisions and such rights are always upheld. In the case of Cooverjee vs. Excise Commissioner AIR 1954 SC 120 it was held that where the conduct of the officers are not in accordance with the law or they act in excess of their jurisdiction it would be open to a person who had bid at an auction to approach the High Court under Article 226.

    Again, in the case of Supreme Court Advocates on Record Association vs. Union of India (1993) 4 SCC 441 the Supreme Court Advocates on Record Association was allowed to file a petition to reconsider the earlier judgement given in the SP Gupta case pertaining to transfer of judges of the High Court and consider such procedures afresh.

    Further, the Apex Court in the case of Supreme Court Bar Association vs. Union of India 1998(4) SCC 409 where the Supreme Court Bar Association challenged the judgement whereby an advocate was removed from the rolls of Bar Council on grounds of contempt. The Supreme Court in this case held that the Apex Court even in the use of its plenary powers under Article 142. Such removal can only be made by the State Bar Council or the Bar Council of India as such powers are enshrined to them by the Advocates Act, 1961.

    A petitioner may apply for a writ if the petitioner is able to establish that an injury or damage of kind against which the statute has been designed to give protection. However, a person interested in spreading social education and responsible for promoting it cannot be regarded to have the locus standi to maintain a petition for mandamus against the government and thus it cannot be directed to the government to set up a Social Education Board in accordance with the statute so required. This was held in the case of Kalvan Mal vs. State AIR 1972 Raj. 234.

    However, in another case of State of West Bengal vs. Union of India AIR 1996 Cal.181 the Calcutta High Court allowed standing to the state of West Bengal to file a writ petition under Article 226 seeking directions against the Union of India.

    A person who complains about infringement of his right to property then the person must be able to establish his own title the property and if his title is in dispute then he is ineligible to make such applications. In order to invoke an application under this Article one need not wait for carrying out the threat but may invoke this article if he feels threatened.

    स्रोत : www.legalserviceindia.com

    Explained: What have been the Supreme Court’s recent observations on Article 32?

    Article 32 affirms the right to move the Supreme Court if a fundamental right is violated. How does this provision of the Constitution define this right, and how has the SC interpreted it over the years?

    Explained: What have been the Supreme Court’s recent observations on Article 32?

    Explained: What have been the Supreme Court’s recent observations on Article 32? Article 32 affirms the right to move the Supreme Court if a fundamental right is violated. How does this provision of the Constitution define this right, and how has the SC interpreted it over the years?

    Written by Sadaf Modak | Mumbai |

    Updated: November 19, 2020 11:13:27 am

    In September last year, a Constitution Bench of the Supreme Court reopened the legal debate on sub-categorisation of Scheduled Castes and Scheduled Tribes for reservations. (Express file photo)

    On Monday, a Supreme Court Bench headed by Chief Justice of India S A Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution. The observation came during the hearing of a petition seeking the release of journalist Siddique Kappan, who was arrested with three others while on their way to Hathras, Uttar Pradesh, to report on an alleged gangrape and murder.

    What is Article 32?

    It is one of the fundamental rights listed in the Constitution that each citizen is entitled. Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution. It states that the Supreme Court “shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”. The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.

    The Article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion. Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

    During the Constituent Assembly debates in December 1948, a discussion on this fundamental right (in the draft, it is referred to as Article 25), Dr B R Ambedkar had said, “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…” He said the rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended and hence it was “one of the greatest safeguards that can be provided for the safety and security of the individual”.

    Others in the drafting committee also said that since it gives a person the right to approach the Supreme Court as a remedy if fundamental rights are violated, “it is a right fundamental to all the fundamental rights” guaranteed under the Constitution.

    The Constituent Assembly debated whether fundamental rights including this one could be suspended or limited during an Emergency. The Article cannot be suspended except during the period of Emergency.

    Can High Courts be approached in cases of violation of fundamental rights?

    Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

    * Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)

    * Mandamus — directing public officials, governments, courts to perform a statutory duty;

    * Quo warranto — to show by what warrant is a person holding public office;

    * Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and

    * Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.

    In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court. When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32. Article 226, however, is not a fundamental right like Article 32.

    What have been the Supreme Court’s recent observations on Article 32?

    In the case of the journalist Siddique Kappan, the court asked why the petitioners could not go to the High Court. It has sought responses from the Centre and the UP government, and will hear the case later this week.

    In another case last week invoking Article 32, filed by a Nagpur-based man arrested in three cases for alleged defamatory content against Maharashtra Chief Minister Uddhav Thackeray and others, the same Bench directed him to approach the High Court first.

    Relief under Article 32 was also sought in a petition filed by Telugu poet Varavara Rao’s wife, P Hemalatha, against the conditions of his detention in jail since 2018. The Supreme Court directed the Bombay High Court to expedite the hearing on a bail plea filed on medical grounds, pending since September. It observed that once a competent court had taken cognisance, it was under the authority of that court to decide on the matter.

    स्रोत : indianexpress.com

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