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Published: Fri, 02 Feb 2018
Restraints And Remedies Of Constitutional Adjudication
The spirit of the Constitution of India reflects on its positive approach towards the enforcement of fundamental rights. Article 13 of the Constitution makes all laws made by the State, which are in violation of the Part III of the Constitution, void. Article 32(1) and 226 empower the Supreme Court and High Court respectively to enforce these Rights. Article 32 (3) also empowers the Supreme Court to delegate the power to enforce the fundamental rights to other Courts.
Courts can exercise this power by using the tools that have been given to them by Art 32(2) and 226. Art 32 (2) grants the Supreme Court 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 (III) Part”.
Article 226 provides a parallel right to the High Courts. However, a major difference between the power endowed by Article 32 and Article 226 is that while Article 32 can be invoked only in case of a breach of Fundamental Rights, Article 226 can be invoked for “any other purpose also”  .
However, despite this positive approach, the Fundamental Rights are not absolutely enforceable. Article 32(4) allows the suspension of these rights in exceptional circumstances.
The purpose of this Project is to determine the restraints that the Constitution can put on the remedies that a court can provide in cases of breach of Fundamental Rights. These remedies include the use of prerogative writs.
All cases dealing with matters of Constitutional Law come under the purview of Constitutional adjudication. However, for the purpose of this project, the scope of Constitutional adjudication has been restricted to only those cases which deal with the Breach of Fundamental Rights that have been guaranteed under Part III of the Constitution of India.
As the project deals with the study of the restraints that the constitution can put on the remedies that a court can provide in case of constitutional adjudication, the doctrinal form of research was most appropriate. Primary sources of information as well as secondary sources, such as articles and websites, have been accessed at the NUJS library and all sources of information have been appropriately cited in footnotes. The project is an original work of the researcher and no part of it is a product of plagiarism.
CHAPTER I – Restraints on Article 32 and 226 by the Constitution
One of the situations where Constitutional remedies cannot be accessed is when the Fundamental Rights themselves have been suspended. This can happen in the following three circumstances:
Fundamental Rights of members of Armed Forces, forces charged with the maintenance of law and order, persons employed in any Bureau established by the State for the purpose of intelligence or Counter Intelligence and persons employed in Telecommunications systems set up to serve any of the above mentioned groups, can be restricted or abrogated by law. 
Restrictions can be put on the application of fundamental rights while martial law is in force in that area. 
If the President is satisfied that a grave emergency exists whereby the security of Indian or any part of its territory is threatened by war, external aggression or internal disturbance (armed rebellion), or there is any danger of any of these, he may by proclamation, make a decision to that effect.  During the period in which proclamation of emergency is in operation, the rights conferred by Part III can be curtailed or even suspended. 
Constitutional remedies under Art 32 can also be denied in case the cause of action arises from an act other than the infringement of Fundamental Rights.  However, the Supreme Court has, in the past, allowed cases where arise from an act other than the infringement of Fundamental Rights, as the questions raised are important for the consideration of the Supreme Court and there is no way to introduce them in the Court but to raise a prerogative writ. 
Article 32 can also not be invoked simply to adjudge the validity of any legislation or an administrative action except when it adversely affects the exercise of Fundamental Rights by the Petitioners. However, a writ can be denied to a person where the disputed law has not come into force.
Moreover, a final decision of the Supreme Court cannot be beset in a petition under Art 32 by any person irrespective of his locus standi on the case. 
The court also applies the principle of Res Judicata while entertaining petitions under Article 32 of the Constitution. This is done in lieu of Public interest to avoid a multiple application of petitions for the same act. However, this affects the relationship between Art 32 and 226 in the following way. It is not required of any person to first approach the High Court and then the Supreme Court. This is because, if petitioners were first made to approach the High Court under Art 226 in case of a violation of Fundamental Rights, they cannot further file another petition under Art 32 as the principle of Res Judicata applies. The only way in which their case can be entertained in the Supreme Court is by appealing to the High Courts’ decision. But that again is not done through Art 32. This will render Art 32 useless. Also, it will make the procedure costlier and more cumbersome for the Petitioner. Therefore, the High Court under Art 226 and the Supreme Court under Art 32 enjoy concurrent jurisdiction in the matter of enforcement of Fundamental Rights.
Writs can also be denied to a person who is guilty of conduct disentitling him to relief or where it is in the interest of justice to deny him relief or where the grant of writ is futile. 
Along with there being certain requirements that the Petitioner has to ensure while filing his Application under Art 32 and 226, such as it being in written  , legible, on standard petition paper, accompanied by an affidavit verifying the facts  , et cetera, while invoking remedy under Art 32 or 226, it is also required of him to do so in a specified period of time.  Laches or inordinate delay on the part of the petitioner may disentitle him to move a writ petition under Art 32 to enforce his Fundamental Right. 
Restrictions have also been put on the remedies that a court can provide in cases of breach of Fundamental Rights on the basis of technicality. For instance, a Court can refuse to answer a hypothetical question or a question that does not arise from a dispute between the parties. A pleading that is vague can also be denied an answer. Another reason of denial can be if that specific question has not been taken up in the pleading. 
Chapter II – Existence Of An Equal And Efficacious Remedy
A major area of dispute that exists is over the limitation that the Court will not issue a writ in favour of a person who has an adequate alternative remedy.  It has been contended that Art 32 should be invoked as a last resort; after all other alternative remedies have been exhaustive. These alternative remedies should provide an equivalent relief to the infringement of the Fundamental Right of the petitioner. The following remedies have been considered adequate: (a) a suit, (b) an appeal, notwithstanding that the petitioner has allowed the appeal to be barred, (c) an appeal or a second appeal and revision, (d) a revision, (e) a statutory remedy for challenging an election, or any other thing complained of, (f) petition under s. 164 of Arms Act, (g) a petition before another tribunal, (h) where an alternative remedy has been availed of and the matter is pending. 
However, certain criterion needs to be fulfilled to satisfy a court that the alternative remedy is equal and efficacious.
The alternative remedy should be equally convenient, beneficial and effective. It should secure necessary relief and should not be onerous or burdensome.
In S. K. Sinha v Patna University  , the petition under Article 32 was denied on the ground that there existed an equal and efficacious remedy under the University Act.
However, on the other hand, it has also been contended that existence of an alternative remedy is no bar to entertain a petition under Art 32.  It is argued that the “the mere existence of an adequate alternative legal remedy cannot per se be a good and sufficient 4ground for throwing out a petition a under Article 32, if the existence of a fundamental right and breach, actual or threatened, of such right is alleged and is prima facie established in the petition.” 
In Kharak Singh v. State of U. P  , it was held that “the fact that an act by the State executive or by a State functionary acting under a pretended authority gives rise to an action at common law or even under a statute and even under a statute and that the injured citizen or person may have redress in the ordinary courts is wholly immaterial and irrelevant for considering whether such action is an invasion of a fundamental right. An act of the State executive infringes a guaranteed liberty only when it is not authorized but a valid law or by any law as in this case, and every such illegal act would obviously give rise to a cause of action – civil or criminal- at the instance of the injured person for redress. It is wholly erroneous to assume that before the jurisdiction of this Court under Art 32 could be invoked, the applicant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedies as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of this Court that by State action the fundamental right of a petitioner under Art 32 has been infringed, it is not only the right but the duty of the Court to afford relief to him by passing appropriate orders in that behalf.”
Another argument that can be raised against the idea of alternative remedy is that Article 32 is in itself a Fundamental Right guaranteed by the Constitution and it cannot be denied or restricted merely on the grounds that there exists an alternate remedy.
The restraint extended by the principle of Res Judicata also comes into play. Basically, if a compulsion is applied on the Petitioners to exhaust all alternative remedies before approaching Supreme Court under Art 32, then the petitioner can’t later invoke Section 32 anyway as it will be barred by the principle of Res Judicata. Therefore, this becomes a never-ending loop which will ultimately lead to the redundancy of Article 32.
Having said that, it is important to view the idea of ‘alternative remedies’ in practical light also. The Supreme Court has a significantly large backlog of cases. In light of that, it is advisable that the cases be filtered at the level of State Judiciary. Also, in most situations the State Judiciary is in a better position to address the issues of infringement of Fundamental Rights than the Supreme Court. Filing a case in the High Court is also less expensive in terms of overall costs.
If the general stand of the Supreme Court decisions in this matter is studied, the following pattern can be traced;
The idea of alternate, equal and efficacious remedy is merely a rule of convenience and discretion rather than a rule of law. It does not in any way bar the jurisdiction of the court. The Supreme Court cannot reject a petition on the grounds that there exists an alternative remedy and will grant relief nevertheless in a case where there is a violation of the principle of natural justice, violation of fundamental rights, where the act complained of is contrary to law or is without the authority of law, or is authorized by an ultra vires law, where the act complained of is without jurisdiction, where the petition raises important questions of the interpretation of statutory provisions or rules which it is in the public interest to decide speedily, where there is a failure of justice due to a misreading of the provisions of an Act, etc. 
While the Constitution promotes the spirit of positivity towards the enforcement of Fundamental Rights and the Judiciary tries to keep up the ideology of the Constitution makers, it is unreasonable to expect absolute rights without reasonable restrictions. The Constitution and conventions together have put certain restraints on the tools which are at the disposal of the Judiciary for the enforcement of Fundamental Rights. Some of these restrictions are technical in nature, such as the limitation as to delay in filing of a petition or that the Supreme Court will not answer to questions other than that relating to infringement of Fundamental Rights. Other restrictions are purely circumstantial, such as the existence of an alternative, equal and efficacious remedy. At the end of it, what is important is that the Constitutional remedies should not be misused and should not go against Public interest in general.
To conclude, yes – the Constitution does put certain restrictions on the remedies that a Court can provide in cases of Constitutional adjudication. And yes, these restrictions are important so that the remedies – prerogative writs, et cetera – are not misused.
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