[This article was originally published in the leading law journal All India Reporter (AIR) – May 2003 issue.]
This article makes a humble attempt to make out a case for enactment of a law in terms of article 32(3) of the Constitution for empowering courts, such as the District Courts, at least in a limited manner, to exercise within their local jurisdiction the power to issue directions or orders or writs for the enforcement of the fundamental rights.
Fundamental rights constitute a very important part of the Constitution of India. They have been given the pride of place in the Constitution. They are embodied in Part III of the Constitution and they may be classified thus: (i) right to equality; (ii) right to freedom of speech and expression, of peaceful assembly, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any part of India, to practice any profession or to carry out any trade or business; (iii) right of life and liberty; (iv) right against exploitation; (v) right to freedom of religion; (vi) cultural and educational rights; (vii) right to constitutional remedies. Certain rights of the minorities and of the backward communities have also been characterised as fundamental rights under the Constitution.
Fundamental rights are also equated with what have traditionally been known as natural rights. They represent the primordial rights essential for the development of human personality. They enable a man to chalk out his own life in the manner he likes best.
Fundamental rights are made justiciable under articles 32 and 226 of the Constitution. A violation of a fundamental right can be remedied by approaching the concerned High Court under article 226 or by directly approaching the Supreme Court under article 32. It is pertinent to point out that the right to approach the Supreme Court under article 32 is itself a fundamental right and it guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. Thus, it may be seen that if the fundamental right of a person is violated, he has two remedies – either to approach the High Court or to approach the Supreme Court. It may be appropriate to point out that in many circumstances, the violation of a fundamental right may also entail contravention of some other legal provisions enabling the person concerned to approach some other competent judicial authority for an alternative remedy.
There is only one seat of the Supreme Court at New Delhi. There are 18 High Courts with a total of 33 benches, including the Circuit Benches. In addition to the aforesaid writ jurisdiction, the Supreme Court and the High Courts have various other jurisdictions as well, such as the appellate jurisdiction. Some of the High Courts, such as the Bombay High Court, also have the original civil jurisdiction.
A very large number of cases are pending in the Supreme Court and the various High Courts. As on October 31, 2001, a total of 35,57,637 cases were pending in the High Courts and 21,995 cases in the Supreme Court.[1]
It cannot be over-emphasised that India is a vast country with an area of 3,287,590 sq km – the maximum length and breadth being more than 3000 km each. Its population is about 1027 million as per the 2001 census, constituting about 15% of the humanity. It is the seventh largest in size and the second most populous country in the world. Thus, having only a limited number of courts (i.e., the High Courts and the Supreme Court) and that too at a few places only, for the enforcement of the fundamental rights of such a huge populace spread over a nation of the size of a sub-continent, is nothing but a mockery of the guarantee of fundamental rights. While the Supreme Court and the High Court have contributed immensely to the cause of the fundamental rights, the number of these courts, and the locations thereof, is just not sufficient for the purpose.
In fact, even if we consider the judiciary as a whole, the ratio of judges to the population in India is among the poorest in the world. Based on 1971 census, the judge-population-ratio in India was only 10.5 judges per million population while this ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and 107 in United States.[2] The situation must be definitely worse today in 2003, as our population has almost doubled since 1971. And, this ratio becomes even more meagre when we consider that only the High Courts and the Supreme Court can handle the matters relating to the violations of the fundamental rights. In fact, in these courts also, not all judges hear such matters, as they have to exercise their powers under other jurisdictions as well, such as the appellate jurisdiction. There are a total of about 568 High Court Judges and 26 Supreme Court Judges in India. Thus, if we consider only the judges in the High Courts and the Supreme Court, then we have a ratio of only 1 judge to 1.72 million population for enforcement of the fundamental rights! By no stretch of imagination, can such a ratio be said to be sufficient. A large number of 35,57,637 pending cases in the High Courts and 21,995 pending cases in the Supreme Court, as noted above, is a testimony of the said poor ratio of judges to population.
Though no systematic study has been made in this regard, as per an approximate study made by this author on the basis of the writ petitions filed in the Bombay High Court as seen from the Cause Lists of that Court, and also from the decided cases of the Supreme Court and other High Courts reported in various journals, a substantial number of the writ petitions filed in various High Courts and the Supreme Court are from the cities where a bench of a High Court or the Supreme Court is situated. It is well known that only a minor portion of our population resides in cities while the major chunk of the population is in villages. And, here, from out of the urban population also, we are talking of only the population of those cities where a bench of a High Court or Supreme Court is situated. It can be nobody’s case that there are no violations of fundamental rights of people residing in villages or interior parts of the nation. Enforcement of fundamental rights of people residing in villages is still a distant dream even after 53 years of the Constitution coming into being!
Moreover, it is a fact that, in a poor country like ours, most people find it extremely difficult to approach even the local courts for the enforcement of their various rights such as property rights, or to seek remedies for offences against their body and property. How can then we expect such poor people to approach a distantly located High Court for enforcement of their fundamental rights? Though article 32 guarantees the right to approach the Supreme Court for enforcement of the fundamental rights, how many people can afford that in our country? No doubt then that enforcement of fundamental rights remains an empty provision for most of our people, it being a luxury only for the better sections of the society or for urban people who reside closer to a High Court or the Supreme Court.
In addition, lack of good infrastructure, poor but costly transportation, costly lodging / boarding facilities at the seats of the superior courts, costly legal services, inordinate delays in proceedings, high illiteracy, etc. act as further disincentives for people from distant places to visit a High Court or the Supreme Court for the enforcement of their fundamental rights.
On the other hand, the scope of the fundamental rights is ever-increasing in view of the increased interactions between the state and the people due to the omnipresence of the state instrumentalities today. Up to the 19th century, the concept of the state was a laissez faire state which was concerned mainly with matters such as defence, law & order, administration of justice, and a few tax collections. However, in the 21st century today, the concept of the state is that of a welfare state, wherein the state is concerned with almost all sorts of human activities. A modern state performs such wide ranging functions as a protector, a provider, an entrepreneur, a controller and an arbiter.
State acts as an active instrument of socio-economic policy; regulates individual life and freedom; provides several benefits to citizens; controls and regulates private enterprise through various laws such as IDR Act, Companies Act, Labour Laws, Import and Exports (Control) Act, etc.
State is involved in running buses, railways, airways, waterways, distribution of milk, electricity, gas, water, telecom, irrigation, mining, several industries, etc. It provides public health, education, and various other services. It is involved in business such as insurance, banking, security trading, etc. It is involved in housing, town planning, country planning, highways, planning of social and economic life, licensing, slum schemes, plans of urban and rural life, control and distribution of resources. It exercises discretionary powers and regulatory powers. It adjudicates over disputes between state and individuals through tribunals.
In fact, the role of the state has increased so much today that the state’s intervention in human activities extends to all walks of life and throughout the life, starting from maternity home to the graveyard, in as much as the birth of a child entails a duty of its registration with the state authorities and the death of a person may require several formalities to be completed, including inter alia registration thereof, obtaining of a death certificate, succession certificate, etc. And, of course, during the lifetime, a person has to continuously interact with the state on a day-to-day basis, nay on a minute-to-minute basis.
Thus, the increasing state activism has led to the state acquiring more and more powers to interfere in almost all facets of human life. Moreover, there is an increasing tendency of the executive or the administration wing of the state getting more and more powers.
Due to the aforesaid ever-increasing role of the state, people come into contact with various instrumentalities of the state at every step in their life. Due to such increased interactions between the state and the people, the chances of the violation of the fundamental rights of the people also increase proportionately. Hence the need for a much broader system for the enforcement of fundamental rights.
It is in this context that, due to the reasons mentioned above, there is a case for enactment of a law under article 32(3) of our Constitution for empowering other courts, such as the District Courts, at least in a limited manner, to exercise within their local jurisdiction the power to issue directions or orders or writs for the enforcement of the fundamental rights.
Article 32 of the Constitution is reproduced hereunder for this purpose for a ready reference:
“32. Remedies for enforcement of rights conferred by this Part.–(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.(2) The Supreme Court shall have the 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.(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this article.”
It is suggested that the Parliament may enact a law under the said article 32(3) to empower the District Courts in India to exercise the said powers to issue directions or orders or writs for the enforcement of the fundamental rights.
A period of 53 years has passed since our Constitution came into being. Most of the basic principles of law relating to the fundamental rights have already been settled by the Supreme Court and the various High Courts. These well-settled principles of law can be applied by the District Courts, while deciding questions of facts in matters relating to the violation of fundamental rights. Questions of law, arising out of such matters, can be framed and referred by the District Courts to the High Courts in a manner similar in which it is done under section 113 of the Code of Civil Procedure, 1908.
District Judges are experienced judicial officers. They are already empowered under various laws to adjudicate upon various civil / criminal matters, with powers to impose all punishments prescribed by law (including the death penalty – though subject to confirmation by the High Court), and with power to grant various civil remedies. They enjoy considerable independence in matters of performance of their duties and are not under the executive influence. Therefore, they are well-equipped to adjudicate upon the matters relating to the violations of the fundamental rights.
Today, we have special courts and adjudicatory bodies dealing with matters such as consumers, family matters, etc., to ensure speedy, economic and easy justice for the masses. We have a large number of Tribunals set up under laws made under Article 323A or 323B of the Constitution (e.g., the Central Administrative Tribunal), dealing with various matters which were hitherto dealt with only by the High Courts. So, why can we not empower the District Courts in matter of enforcement of fundamental rights in order to take justice to the doorsteps of the people? In any case, this is what the founding fathers of the constitution had envisaged.
Some of the advantages of giving such powers to the District Courts are as under:
- The cost of hiring an advocate in the District Courts will be much less than that in the High Courts or the Supreme Court.
- The transport and other expenses will also be less in the District Courts.
- The District Courts are much more accessible than the limited number of the High Courts and the Supreme Court.
- The burden on the High Courts and the Supreme Court will be reduced greatly, thereby enabling them to handle the more important matters.
- The important cases relating to the fundamental rights will still go to the High Courts and the Supreme Court in the form of reference/appeal, especially at the policy level.
- Better implementation and enforcement of the fundamental rights in as much as poorer people and distantly located people will also be in a position to approach the District Courts for that purpose.
- The real advantages of the judicial activism will be available even to the poorer and distantly located sections of the society as well.
- This will ensure justice at the doorsteps of the people, thereby enhancing respect for law and justice.
- Better realisation of the objective of guaranteeing the fundamental rights in the Constitution.
- It will help in making the administration more responsive to the people and thereby in reducing corruption in the country.
- It will help in realising the cherished dreams of the makers of the Constitution who gave the pride of place to the fundamental rights in the Constitution of India.
The founding fathers of our constitution were wise enough to provide for a provision such as the said article 32(3) to cater to the future needs of the society. Let us ensure that the said provision does not remain a redundant and dead letter in the Constitution. Let the justice be taken to the doorsteps of the people in the important field of enforcement of the fundamental rights.
[1] As per the 85th report on “Law’s delays: Arrears in courts” of the Standing Committee on Home Affairs, as quoted in Frontline magazine in its March 02-15, 2002 issue.
[2] As quoted by the Supreme Court in the latest case of P. Ramachandra Rao v. State of Karnataka, 2002 AIR SCW 1841 (para 20).
