A violation of right found, but no remedy given

The Hindu     22nd May 2020     Save    
QEP Pocket Notes

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.
QEP Pocket Notes