Under what provisions can infringement of fundamental right be challenged in district courts? 


Under what provisions can infringement of fundamental right be challenged in district courts? 

 

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it can only be challenged in High Court or Supreme Court

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Advocate

Infringement of fundamental rights can only be grant protection by the High Courts or the Apex. Better you go before the High Court.

 
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Dy Director

please state facts.

 
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Hi friend!

I would really appreciate if you share your problem with more details about the subject matter, so that I can help you more specifically. Here is an answer to what you have asked.

Unlike other rights (in both civil and criminal law), Fundamental Rights are supreme rights enshrined in Part 3 of the Constitution, and it is the State's duty to ensure you these basic necessary rights. In case of violation of these rights, the Constitution itself has laid provisions to directly approach either the Supreme Court or the High Courts, instead of District Court(s).

You can approach either the Hon'ble Supreme Court under Article 32 of the Constitution or the Hon'ble High Courts under Article 226 of the Constitution. Such petitions are called "Writ Petitions" whereby you can request the Court to issue writs including Habeus Corpus, Mandamus, Quo-warranto, Prohibition, or Certiorari, depending on your case matter.

In case you are wondering whether to approach the High Court or the Supreme Court now, there is an easy way to determine that. As per Article 226, High Courts have jurisdiction only over the territory of its State (eg. Bombay High Court will have jurisdiction only over the territory of Maharashtra), while the Supreme Court can exercise its jurisdiction throughout the country. 

Now let us say you want to get a State legislation amended. For this you can easily approach the High Court of that State. However, for a Union legislation, you'll obviously have to approach the Supreme Court. So if your case is such that the High Court has jurisdiction over the subject matter, you can move it. In case they don't you'll have to approach the Supreme Court.

The Hon'ble Supreme Court has reiterated on several instances that if a High Court has jurisdiction over a case, it should be filed there only.  

Another thing to be kept in mind is that the Supreme Court has jurisdiction to entertain only such Petitions which involves infringement of Fundamental Rights, while the High Courts can entertain Petitions for infringement of both- Fundamental Rights and Legal Rights.

Now, who may file a Writ Petition under Article 32 or 226?

  • any person who complaints of the infringement of any Fundamental Rights (or legal rights in case of Article 226)
  • a company which had its Fundamental Rights infringed
  • a person who has serious apprehension that the State may violate his Fundamental Rights

It is to be remembered that a Writ Petition can be filed for infringement of right by "State" only, and not against a private individual. "State" as defined under Article 12 includes Legislative bodies, Executive bodies and Judicial bodies in their administrative capacity (NOT judicial capacity). The only exception to this general rule is the writ of Habeaus Corpus, which can be filed against a private individual as well.

In case you want to file the Writ Petition on behalf of some other individual or for public interest in general, you can go for Public Interest Litigation (PIL). This type of Writ Petition was introduced by Hon'ble Justice P.N. Bhagwati and Hon'ble Justice VR Krishna Iyer, wherein any citizen can file the petition on behalf of any other citizen/group of citizens or for interest of public in general, provided that the Petitioner does not have any personal or mala-fide intention behind filing such petition. It can be filed at a negligible cost of 50 INR per Respondent and the Petitioner can even argue his own case, without hiring an advocate.

You can file the Writ Petition to issue any of the following writs:

1. Habeus corpus: by issuing this writ, the Court orders an authority (statutory or non-statutory) to present a detainee before itself.

2. Mandamus: this writ is issued to order a State authority to do or abstain from doing something.

3. Prohibition: this writ is issued against subordinate courts whereby the High Court/Supreme Court prohibits the subordinate court from taking any further action in a case.

4. Certiorari: this writ is issued to quash the order(s) ALREADY PASSED by lower court or authorities.

5. Quo-warranto: this writ is issued to challenge the right of a person to hold a public office.

 

 
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Hello,

No because as per the Indian constitution only the High Court and the Supreme Court have been vested with powers to issue writs therefore one has to go to one of these higher courts to initiate action pertaining breach of fundamental rights.

 

Article 32 of Constitution of India - Remedies for enforcement of rights conferred by this Part

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

2. The Supreme Court shall have 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 Part

3. Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Article 226 of the Constitution - Power of High Courts to issue certain writs

1. Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

2. The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without

a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

4. The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32

 
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