On violation of fundamental rights by a governmental body or by the state authorities, the aggrieved person can approach the court under articles 32 and 226 by filing a writ petition. However, can a court breach a fundamental right. And if it does, what could be the possible remedy? In this article, we will deal with this particular question of law. We are aware that remedy for violation of fundamental rights can be claimed against the state only. ‘State’ includes all the authorities mentioned under article 12. However, article 12 does not consider ‘judiciary’ as a state. Hence, this is the first reason why one cannot accuse a court of breaching fundamental rights. Additionally, if the intent of the constitution makers would have been to introduce judiciary as the state, they would have done it.

Judiciary is an independent body and is considered to be our safeguard of rights. It protects us from the harmful actions of executive, legislature and other state bodies that infringe upon our rights. And every such action which is violative of fundamental rights is void. However, a court itself cannot be accused of breaching fundamental rights.

Judiciary may exercise its rule making power sometimes but it cannot affect or materially impact someone’s fundamental rights. When someone has filed for violation of fundamental rights, it means that the state has altered his or her position by its actions. However, when this person approaches the court, the court duly examines and concludes the matter by keeping in mind the interests of all the parties. For example: state arrests a person, who then files a writ in SC. SC decides to not grant bail to the person. In such a scenario, the SC cannot be said to violate a person’s fundamental right. Therefore, a judicial decision is given only after sufficient adjudication of matter by the judges, it cannot be considered violation. This might also be against public policy as then, people would start rebelling against court decisions and there might be no end to litigation.

Furthermore, if a party is not satisfied by the decision of the court, it can always file an appeal in the higher court. The party may also opt to file for a judicial review. Under a judicial review, the same judgement is reviewed by the same bench to check if the interests of all the parties are intact and if a correct decision was given. Hence, there are remedies which can be filed if the parties disagree with the court order. It is important to note that one cannot keep appealing or filing for judicial reviews limitlessly. Once, the supreme court has given the final order, there are less or no chances that the matter will be heard further.

However, there is an exception to this rule which was laid down in the case A.R. Antuluy v. R.S. Nayak. The parties can also file for a curative petition on fulfilment of two conditions: One, principles of natural justice have not been complied with. Two, the bench failed to disclose his connection with the subject and gave the parties a scope for an apprehension of bias which adversely affected the judgement. This curative petition is filed to ‘cure’ the defect or flaw in the judgement. Hence, if parties have faced significant disadvantage due to non-fulfilment of the above mentioned two conditions, they can file a curative petition. However, non-fulfilment of the two conditions will not be constituted as violation of fundamental rights.

hwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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