Fundamental Rights and Judiciary - India, a Case Study
By: Amit Bhushan Date: 18th April, 2014
Our tenuous Judicial System in India seems to perform poorly even in case of upholding the constitutionally guaranteed rights to ordinary citizens. The fundamental rights are normally the enshrined principles and are nothing but 'values' which should guide all actions of the government and citizens including various organizations while conducting any transaction. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender. Aliens (persons who are not citizens) are also considered in matters like equality before law. They are enforceable by the courts, subject to certain restrictions.
Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. The six fundamental rights recognized by the Indian constitution are:
Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
Right to constitutional remedies for enforcement of Fundamental Rights.
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Right to property was originally a fundamental right, but under 44th Amendment Act, right to property ceased to be a Fundamental right. Instead the right to property is mentioned under 300A of Indian Constitution, stating that no person can be deprived of his property save by law.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.
The procedures of the court are tedious and Right 6 of constitutional remedies need to be strengthened by the courts. We have long delays in pronouncing judgments even in case where the Fundamental rights seem not to have been protected.
Take the case of some of the popular graft cases where government procedures seem to be lacking in compliance of the fundamental rights. The interested parties seem to be trying every trick in the book to either beat the government or delay the judgment. The courts in such cases should have procedures so that they can pass some interim orders to set aside acts which are in violation of such rights and allow the interested parties to fight for re-set prayers basis merit of the case. Instead what we see is contest to present merits of case in a way that clouds the fact of the violation of principles. Prominent cases like Coal, Spectrum etc. including those of misdemeanor in land allocation continue to linger for ages. This only yields advantage to lawyers and violators of the principle while penalizing the common citizens/ordinary public whose fundamental rights may continue to be violated till the time a suitable judgment may be arrived at to correct the anomaly.
A better way would be to correct the anomaly by the way of interim order and allowing any aggrieved party to challenge the same in cases where the parties feel considerable damage due to order. Once such a procedure is set, it would then be drilled into the system to devise rules at all levels of government from center to municipal and beyond to ensure that business rules and procedures are in place that define proper conditions for fulfillment of these rights e.g. for an open tender, whether it is to be advertized in 2 newspaper or be put on a website or both or something else. Currently these rules are at best haphazard and has been maintained so by the interested parties so that they benefit out of confusion prevalent in the system. A clear directive from the Highest Court to lay guidance to deliver interim orders where violations of fundamental principles are clearly established beyond doubt has the potential to curb many spurious practices. This would also set in motion some thinking within business and other organizations about how to conduct business so that they are not found on the wrong side of upholding such principles and run huge risks of loosing out in market due to negative impact of such orders would go long way in bringing a level playing field for judicial remedies so much so that many a cases would not be allowed to be created in the first place.
This would be contrast to current practice where creative ways are deployed to beat the system for private profits and then legal wrangling is devised to amass unscrupulous profits. Till the time a judgment is delivered, the corporate may have raked huge mullah and may be onto to new things. In order that such procedures are not misused by elements within judiciary, the courts may restrict that such cases can be taken up only by High Court benches and above for passing of such orders.
By: Amit Bhushan Date: 18th April, 2014
Our tenuous Judicial System in India seems to perform poorly even in case of upholding the constitutionally guaranteed rights to ordinary citizens. The fundamental rights are normally the enshrined principles and are nothing but 'values' which should guide all actions of the government and citizens including various organizations while conducting any transaction. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender. Aliens (persons who are not citizens) are also considered in matters like equality before law. They are enforceable by the courts, subject to certain restrictions.
Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. The six fundamental rights recognized by the Indian constitution are:
Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
Right to constitutional remedies for enforcement of Fundamental Rights.
[/list]
Right to property was originally a fundamental right, but under 44th Amendment Act, right to property ceased to be a Fundamental right. Instead the right to property is mentioned under 300A of Indian Constitution, stating that no person can be deprived of his property save by law.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.
The procedures of the court are tedious and Right 6 of constitutional remedies need to be strengthened by the courts. We have long delays in pronouncing judgments even in case where the Fundamental rights seem not to have been protected.
Take the case of some of the popular graft cases where government procedures seem to be lacking in compliance of the fundamental rights. The interested parties seem to be trying every trick in the book to either beat the government or delay the judgment. The courts in such cases should have procedures so that they can pass some interim orders to set aside acts which are in violation of such rights and allow the interested parties to fight for re-set prayers basis merit of the case. Instead what we see is contest to present merits of case in a way that clouds the fact of the violation of principles. Prominent cases like Coal, Spectrum etc. including those of misdemeanor in land allocation continue to linger for ages. This only yields advantage to lawyers and violators of the principle while penalizing the common citizens/ordinary public whose fundamental rights may continue to be violated till the time a suitable judgment may be arrived at to correct the anomaly.
A better way would be to correct the anomaly by the way of interim order and allowing any aggrieved party to challenge the same in cases where the parties feel considerable damage due to order. Once such a procedure is set, it would then be drilled into the system to devise rules at all levels of government from center to municipal and beyond to ensure that business rules and procedures are in place that define proper conditions for fulfillment of these rights e.g. for an open tender, whether it is to be advertized in 2 newspaper or be put on a website or both or something else. Currently these rules are at best haphazard and has been maintained so by the interested parties so that they benefit out of confusion prevalent in the system. A clear directive from the Highest Court to lay guidance to deliver interim orders where violations of fundamental principles are clearly established beyond doubt has the potential to curb many spurious practices. This would also set in motion some thinking within business and other organizations about how to conduct business so that they are not found on the wrong side of upholding such principles and run huge risks of loosing out in market due to negative impact of such orders would go long way in bringing a level playing field for judicial remedies so much so that many a cases would not be allowed to be created in the first place.
This would be contrast to current practice where creative ways are deployed to beat the system for private profits and then legal wrangling is devised to amass unscrupulous profits. Till the time a judgment is delivered, the corporate may have raked huge mullah and may be onto to new things. In order that such procedures are not misused by elements within judiciary, the courts may restrict that such cases can be taken up only by High Court benches and above for passing of such orders.