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November 20, 2017

Is the Madhya Pradesh Bharatiya Janata Party Government trying to extinguish people’s Right to constitutional remedies?


Lalit Shastri

fundamental ightsIs the Bharatiya Janata Party Government in Madhya Pradesh bent upon extinguishing the citizens’ Fundamental Right to constitutional remedies by following the route of bulldozing and passing a Bill through brute majority in the special one-day session of the state Assembly tomorrow in order to enact a law to prevent people from approaching the superior court directly to file writ petitions as public interest litigation (PIL) against State ministers or government officers accused of indulging in corruption on the basis of information procured through the Right to Information Act.

It is learnt that the state cabinet has given approval to a Bill likely to be introduced and passed in the State Assembly tomorrow. While the full details of the Bill are yet to see the light of day, it is understood that the Bill is intended to block or delay PILs and writ petitions against ministers and government officers. The operative portion of the Bill, it is further learnt, suggests that PILs or writs against ministers and state government officers by citizens on the basis of information procured through the RTI will be allowed only with the approval of the State Advocate General.

This amounts to snatching away the citizens’ right to constitutional remedies and is a clear violation of the the Fundamental Rights guaranteed under the Constitution. Right to constitutional remedies [Article 32 to 35] empowers the citizens to move a court of law in case of any denial of the Fundamental Rights. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. Only when a national or State Emergency is declared, this right gets suspended by the central government.

The Constitution protects the citizens’ Fundamental Rights such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code or other special laws. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy.

Everyone knows that when a petition by a citizen comes up for mentioning at the Supreme Court or the High Court level, it is entertained only on merit and notices are served, otherwise the petitions are summarily dismissed. The court and the judges comprising the bench have the discretion and authority to decide whether or not the case is made out for protection of the right to constitutional remedy.

Notwithstanding the fact that the post of Advocate General is a constitutional post, what should not be lost track of is that the “Advocate General and his office defends and protects the interest of the State Government and gives invaluable legal guidance to the State Government in formulation of its policy and execution of its decisions” [Refer:-(1994) II SCC 204: State of U.P. & others v/s U.P. State Law Officers Associations & others]. Also in the Joginder Singh Wasu V/s State of Punjab [Refer:- (1994) I Supreme Court Cases 184], the Apex Court has categorically said: “The Advocate General and his Law officers are basically engaged to deal with the court cases in the High Court by the State Government and the relationship between the Government and Law Officers is that of a client and counsel.” The proposed Act of Madhya Pradesh government would amount to not just snatching away the fundamental rights of the citizens but also lead to encroaching upon the Superior Court’s power to decide whether or not a PIL has to be admitted on merit. It is obvious that the Act the State Government wants to enforce, even if it gets the Governor or the President’s assent would not pass the acid test of judicial scrutiny as it would not only undermine but extinguish the citizens’ Fundamental Right – the right to constitutional remedies – guaranteed under the Constitution.

Judges in a High Court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state. Independence of judiciary is the cornerstone and a basic feature of our Constitution and what is significant is that Indian Judiciary has been kept free from the executive only to protect the rights of the citizens.

The Advocate General of a State is also a constitutional post and is appointed under Article 165 of the Constitution of India and the function of the Advocate General is specified under Article 165 & 177 but it is only the State Governor, who appoints the Advocate general on the advise of the State Government.

A lot of water has already flown in the Narmada River – the lifeline of Madhya Pradesh – since, 31 years ago, when senior Advocate Pushpa Kapila Hingorani had brought a revolution in the country through a PIL and had taken up the plight of undertrial priseners suffering in Bihar jails. The then Chief Justice of India Justice P.N. Bhagwati had ordered the release of over 40,000 undertrial prisoners all over the country in response to that case.

Is the Madhya Pradesh Government trying to push the clock back and impose a draconian emergency-like situation in the State only to protect the deviant, the wayward and the corrupt in Government.

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