Part III of Constitution of India gives various fundamental right to the citizens of India but these rights will not have no meanings if there is not any authority to ensure the enforcement of these rights. This power of enforcement is given to the Supreme court under Article 32 of the constitution.
The power to devise new methods
The court had occasion to consider the ambit and coverage of Article 32 in the Bandhua Mukti Morcha v. Union of India & Ors.[1], and in the case of M.C.Mehta v. Union of India[2], the court wholly endorsed what has been stated by Bhagwati, J. in that case in regard to the true scope and ambit of that Article.
Thus, now It is well settled that Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to’ enforce the fundamental rights.
It is in realisation of this constitutional obligation that the Court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning.
The device of Writ Petition
It was in S,P. Gupta v. Union of India[3], Supreme Court held that
“where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of per- sons.”
The Court also held in S.P. Gupta’s case (supra) as also in the People’s Union for Democratic Rights and Ors. v. Union of India[4], and in Bandhua Mukti Morcha’s case (supra) that procedure being merely a hand-maden of justice it should not stand in the way of access to justice to the weaker sections of Indian humanity and there- fore where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, the Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting probono publico would suffice to ignite the jurisdiction of this Court.
In M.C. Mehta v. Union of India(supra) the court wholly endorsed this statement of the law in regard to the broadening of locus standi and what-has come to be known as epistolary jurisdiction.
The strategy of epistolary jurisdiction
Epistolary jurisdiction means ‘the writ petition in the form of letter addressed to any judge of Supreme court. In various case such Sunil Batra v. Delhi administration (1978), Charles Shobhraj and other cases, the court gave landmark judgement while accepting the letter sent to supreme court judge as writ petition.
In Bandhua Mukti Morcha’s case (supra) some of judges apprehending that letters addressed to individual justices may involve the court in frivolous cases and that possibly the view could be taken that such letters do not invoke the jurisdiction of the court as a whole, observed that such letters should not be addressed to individual justices of the court but to the Court or to the Chief Justice and his companion judges.
But, In M.C. Mehta case (supra), the court denied to accept such approach and said that,
“We do not think that it would be right to reject a letter addressed to an individual justice of the court merely on the ground that it is not addressed to the court or to the Chief Justice and his companion Judges. We must not forget that letters would ordinarily be addressed by poor and disadvantaged persons or by social action groups who may not know the proper form of address.
They may know only a particular Judge who comes from their State and they may therefore address the letters to him. If the Court were to insist that the letters must be addressed to the court, or to the Chief Justice and his companion Judges, it would exclude from the judicial ken a large number of letters and in the result deny access to justice to the deprived and vulnerable sec- tions of the community.
We are therefore of the view that even if a letter is addressed to an individual Judge of the court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class of deprived or disadvantaged persons.
We may point out that now there is no difficulty in entertaining letters addressed to individual justice of the court, because this Court has a Public Interest Litigation Cell to which all letters addressed to the Court or to the individual justices are forwarded and the staff attached to this Cell examines the letters and it is only after scrutiny by the staff members attached to this Cell that the letters are placed before the Chief Justice and under his direction, they are listed before the Court.
We must therefore hold that letters addressed to individual justice of the court should not be rejected merely because they fail to conform to the preferred form of address. Nor should the court adopt a rigid stance that no letters will be entertained unless they are supported by an affidavit. If the court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary juris- diction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the Court and even the social action groups will find it difficult to approach the Court.”
The court is free to devise any method
In MC Mehta case, the court reiterated that,
- the Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right. and
- under Article 32(2) the Court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right.
- The power of the Court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha’s case (supra).
- If the Court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the Court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile.
- Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32.
- The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases. The court deliberately used the words “in appropriate cases” and cleared that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the Court in a petition under Article 32.
The infringement of the funda- mental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of theft poverty or disability or socially or economically, disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil courts.
- A petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. This is the principle on which this Court awarded compensation in Rudul Shah v. State of Bihar, (AIR 1983 SC 1086),
also, awarded compensation to Bhim Singh, whose fundamental right to personal liberty was grossly violated by the State of Jammu and Kashmir.
- The court observed that fact analysis of the cases where compensation has been awarded by this Court, show that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil court for claiming compensation.
REFERENCE
M.C. Mehta and Anr vs Union Of India; 1987 AIR 1086, 1987 SCR (1) 819
[1] [1984] 2 SCR 67
[2] 1987 AIR 1086
[3] [1981] Supp. SCC 87
[4] [1983] 1 SCR 456