A violation of right found, but no remedy given

Context: The Indian judiciary in recent cases has displayed vagueness and neglected principles necessary for upholding the ‘Rule of Law’.

Futile actions:

• Violation of rights visible: The Supreme Court’s interpretation of rights like right to clean air, health, shelter, access to internet, etc. has not always led to just results.
• Balance not achieved: In the Foundation for Media Professional v. Union Territory of J & K (FMP), the court reversed the old age principle that “no person shall act as a judge in his own case” by relegating the decision making power to committee formed of the executive.
• Contradiction in action: The petitioner in FMP case relied on Anuradha Bhasin case where the court recognised access to the internet as a fundamental right, the court violated standards of proportionality.

Need for revision of principles:

• Standards of Proportionality (SoP): In an adversarial justice system, rigorous analysis of the facts requires courts to not absolve itself from the fact-finding job to ensure where a fundamental right is limited by state action.
• Judicial Review: Court has to draw a clear line between rights and remedies. However, it has inverted the basic logic and either enunciated a violation of rights only to deny remedy or has granted remedies without understanding what right has been violated.

Way Forward: Building Trust

• Philosophical View: Ancient philosophies including Confucianism held trust to be the dearest of all qualities. Unlike government, trust is all judiciary has.
• True Separation of Power: Should not allow shifting of a sin of omission and commission from one branch of government to another.
• Rightful Remedy: The maxim Ubi Jus Ibi Remedium (Where there is right, there is a remedy) which has anchored the common law for centuries and is the basis for Article 32 of the Indian Constitution must be preserved by judiciary to uphold the Rule of Law.