Original Publicity

Original Publicity

Origin and Development of Fundamental rights

Origin and development of Fundamental Rights: Part III of the Constitution contains a long list of fundamental rights. This chapter of the Constitution of India has very well been described as the Magana Carta of India. As early as 1214 the English people exacted an assurance from King John for respect of their ancient liberties. The Magna Carta is the evidence of their success which is a written document. This is the first written document relating to the fundamental rights of citizens. Thereafter from time to time the King had to accede to many rights to his subjects. In 1689 the Bill of Rights was written consolidating all important rights and liberties of the English people. In France Declaration of Rights of Man and Citizen (1789) declared the natural, inalienable and scared rights of man. Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man and Citizen of France, the Americans incorporated the Bill of Rights in their Constitution. The Americans were the first to give the Bill of Rights a Constitutional status. Thus when the Constitution of India was being framed the background for the incorporation of the Bill of Rights was already present. The framers took inspiration from this and incorporated a full chapter in the Constitution dealing with Fundamental Rights. But the declaration of Fundamental Rights in the Indian Constitution is the most elaborate and comprehensive yet framed by any State.

The inclusion of a chapter on Fundamental Rights in the Constitution of India is in accordance with the trend of modern democratic thought, the idea being to preserve that which is an indispensable condition of a free society. The aim of having a declaration of fundamental rights is that certain elementary rights, such as, right to life, liberty, freedom of speech, freedom of faith and so on, should be regarded as inviolable under all conditions and that the shifting majority in Legislature of the country should not have a free hand in interfering with these fundamental rights. [A.K. Gopalan's case AIR 1950 SC 27]. In West Virginia State Board of Education Vs. Barnet, 319 US 624: 87 Led 1928, Justice Jackson explaining the nature and the purpose of the Bill of Rights observed: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote, the depend on the outcome of no elections".

Need for Fundamental Rights: Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government. They are limitations upon all the powers of the Government, legislative as well as executive and they are essential for the preservation of public and private rights, notwithstanding the representative character of political instruments. [Hartado Vs. People of California, 28 Led 232, as per Justice Mathews].

Speaking about the importance of Fundamental Rights in the historic judgment of Maneka Gandhi Vs. Union of India AIR 1978 SC 597 at p. 619 Justice Bhagwati observed: "These Fundamental Rights represent the basic values cherished by the people of this country (India) since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a 'pattern of guarantee' on the basic structure of human rights, and impose negative obligation on the State not to encroach on individual liberty in its various dimensions".

These rights are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral and spiritual status. The negation of these rights will keep the moral and spiritual life stunted and his potentialities undeveloped. The declaration of fundamental rights in the Constitution serve as reminder to the Government in power that certain liberties, assured to the people by the Constitution are to be respected. The danger of encroachment on citizen's liberties is particularly great in parliamentary system in which those who form the Government are leaders of the majority party in the Legislature and can get laws made according to their wishes. The advocates of inclusion of these rights in the Indian constitution emphasise that their incorporation in the Constitution vests them with a sanctity which the legislators dare not to violate so easily.

The object behind the inclusion of the Chapter of Fundamental Rights in Indian Constitution is to establish 'a Government of law and not of man' a governmental system where the tyranny of majority does not oppress the minority. In short, the object is to establish Rule of Law and it would not be wrong to say that the Indian Constitution in this respect goes much ahead than any other Constitutions of the world. The object is not merely to provide security and equality of citizenship of the people living in this land and thereby helping the process of nayion building, but also and not less important to provide certain standards of conduct, citizenship, justice and fairplay. They were intended to make all citizens and persons appreciate that the paramount law of the land has swept away privileges and has laid down the paramount perfect equality between one section of the community and another in the matter of all those rights which are essential and more perfection of man.

Striking a balance between individual liberty and social need: Absolute and unrestricted individual rights do not, and cannot exist in any moern State. Unrestricted liberty becomes a licence and jeopardise the liberty of others. "Civil liberties as guaranteed by the Constitution imply the existence of an organised society maintaining public order without which liberty itself would be lost in the excess of unrestrained abuses". [ Fox Vs. New Hampshire, 1941 312 US 569 at p. 574]. If people were given complete and absolute liberty without any social control the result would be ruin...Law is a scheme of social control, so that when we are concerned with, we are concerned only with the question of how much liberty is best...It is obvious that, if individuals are allowed to have absolute freedom of speech and action the result would be chaos, ruin and an anarchy. On the other hand, if the State has absolute power to determine the extent of personal liberty the result would be tyranny. Hence, the question arises as to how to make a balance between the conflicting interests of individuals and of the society and particularly in a Welfare State like ours.

The Indian Constitution attempts to do it by enumerating what are fundamental rights and by setting limits within which they can be curtailed. The Constitution permits 'reasonable' restrictions to be imposed on individual's liberties in the interest of society. In this connection following observations of Justice Mukherjee in A.K. Gopalan Vs. State of Madras, AIR 1950 SC 27 may be quoted:

"There cannot be any such thing as absolute and uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community. In some cases, restrictions have to be placed upon free exercise of individual rights to safeguard the interest of society, on the other hand, social control which exists for public good has got to be restrained, lest it should be misused to the detriment of individual rights and liberties. Ordinarily, every man has the liberty to render his life as he pleases, to say what he will, to go where he will, to follow any trade and occupation or calling at his pleasure and to do any other thing which he can lawfully do without any hinderance by any other person. On the other hand, for the very protection of these liberties the society must arm itself with certain powers. What the Constitution therefore attempts to do by declaring the rights of the people is to strike a balance between individual liberty and social control".

Article. 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.

New Judicial trend in interpreting of Part III : Maneka Gandhi, AIR 1978 SC 597 followed in Sunil Batra (No. 1) Vs. Delhi Administration, AIR 1978 SC 1675; Sunil Batra (No. 2) Vs. Delhi Administration, AIR 1980 SC 1579; M.H.Haskot Vs. State of Maharashtra, AIR 1978 SC 1548; Hussainara Khatoon (No. 1) Vs. Home Secretary, State of Bihar, AIR 1979 SC 1360; (No. 2) AIR 1979 SC 1369; (No. 3) AIR 1979 SC 1377 and number of other cases:

(1). Widest interpretation of provisions of Part. III: In Maneka Gandhi's case the Supreme Court has held that the provisions of Part. III should be given widest possible interpretation. Delivering the judgment, Justice Bhagwathi said, "the correct way of interpreting the provisions of Part. III is that attempt og the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content". In Gopalan's case the Court had taken the view that each Article dealt with separate rights and there was no relation with each other. In other words, they were mutually exclusive. This view has been held to be wrong in Maneka Gandhi's case wher the Court has taken the view that they are not mutually exclusive but form a single scheme in the Constitution. Justice. Beg in his judgment said, "Their waters must mix to constitute that grand flow of unimpeded and impartial justice.Isolation of various aspects of human freedom for purposes of their protection, is neither realistic nor beneficial but would defeat the objects of such protection." Further, the Court held that to be a fundamental right it is not necessary that a right must be specifically mentioned in a particular Article. Even if it is not mentioned in any of the Articles specifically, it may be a fundamental right or partakes of the same basic nature and character as that fundamental right. Every activity which facilitates the exercise of the named fundamental right may be considered integral part of that right and hence be a fundamental right. For example, it has been held that right to travel abroad, speedy trial, free legal aid, protection to prisoners in jail from degrading and inhumane treatment, etc., though not specifically mentioned, are fundamental rights under Article. 21 of the Constitution.

The validity of a law infringing fundamental rights can be judged not only with reference to particular Article under which a law is enacted but also with reference to other Articles. In Gopalan's case, it was held that the validity of a deprivation law enacted under Article. 21 must also satisfy the test of 'reasonableness' under Articles. 14 and 19 of the Constitution.

(2). Natural justice and due process: In Maneka Gandhi's case the Supreme Court has held that the 'procedure' depriving a person of his 'life or personal liberty must be just, fair and reasonable'. It must satisfy the requirement of natural justice which is an essential component of fair procedure under Article. 21. "Natural justice is a distillate of due process" observed Justice Krishna Iyer. The concept of natural justice and due process which were rejected in Gopalan's case forming part of our Constitutional Scheme guaranteeing fundamental rights. "True, our Constitution has no 'due process' clause or the VIII Amendment of the American Constitution" Justice Krishna Iyer observed, but "after Cooper and Maneka Gandhi's cases the consequence is the same".

(3). Prisoners Right and Prison Reforms: The Supreme Court has considerably widened the scope of Article. 21 and has held that its protection will be available for safeguarding the fundamental rights of prisoners and for effecting prison reforms. Convicts are also human beings and until they are hanged they are entitled to live in jail as human beings and not as slaves. Inhuman and barbarous treatment with prisoners is a constitutional prohibition. So, it has been held that the punishment of solitary confinement, hand-cuffing, harsh labour, degrading jobs and punishments in jail without judicial approval violate the mandate of Article. 21 of the Constitution. Speedy trial and legal aid to poor prisoners are constitutional rights available to them and does not depend upon the mercy of the State.

(4). Expanding role of writ of Habeas Corpus: The dynamic role of judicial remedies after Sunil Batra's case imparts to the habeas corpus with a versatile vitality and operational utility as bastion of liberty even within the jails. Wherever the rights of a prisoner either under the Constitution or under other law are violated the writ power of the Court can and should run to rescue. The habeas corpus writ can be issued not only for releasing a person from illegal detention but also for directing the jail authorities to provide necessary amenities to prisoners and to protect them from inhuman and barabrous treatment. In fact, in Sunil Batra (No. 2) the petitioner did not seek his release from the prison because he was sentenced to life imprisonment and was to remain in jail but he sought the protection of the court from inhuman and barabrous treatment with which he was treated by jail authorities. On refusal to give money the petitioner was beaten and his anus was pierced with a warder's baton. Batra, a convict under death sentence in Tihar Central Jail, came to know of this inhuman treatment with the petitioner and brought the incident to the knowledge of the court through a letter. The court converted this informal information into the habeas corpus petition and issued directions to jail authority to release the prisoner from punishment cell and not to subject him with severity until fair procedure as laid down in Maneka Gandhi's case is complied with.

In A.B.S.K. Sangh (Rly.) Vs. Union of India, AIR 1981 SC 298, it has been held that even an unregistered association can maintain a petition for relief under Article. 32 of the Constitution if there is a common grievance. Thus Article. 32 is not confined to protect only individual's fundamental rights but is capable of doing justice wherever it is found and the society has an interest in it. "Access to justice through 'class actions', 'public interest litigation', and 'representative proceedings' is the modern jurisprudence", declared Justice Krishna Iyer. In the historic judgment in Judges Transfer case, [S.P.Gupta and others Vs. President of India and others, AIR 1982 SC 149], the seven-judge Constitution Bench of the Supreme Court has set at rest the controversy whether a person not directly involved can move the Court for the redressal of grievances of persons who cannot approach the Court because of poverty or any other reasons. The Court held any member of the public having 'sufficient interest' can approach the Court for enforcing constitutional or legal rights of such persons or group of persons even through a letter.

(5). Human Rights Jurisprudence: In its recent decisions one finds extensive references of the Human Rights by the Supreme Court, particularly for protecting prisoners from various inhuman and barabrious treatment. Today, human rights jurisprudence in India has Constitutional status, says Justice Krishna Iyer in Sunil Batra's case. (No. 2).

In 1979, India became party to the International Covenant on Civil and Political Rights. Article. 10 of the International Covenant provides that "All persons deprived of their liberty shall be treated with humility and with respect for the inherent dignity of the human persons. Article. 5 of the UN Declarations of Human Rights, 1948, says, "No one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment". In Prem Shankar Vs. Delhi Administration, AIR 1980 SC 1535, Justice. Krishna Iyer said that in interpreting constitutional and statutory provisions the Court must not forget the core principle found in Article. 5 of the UN Declaration of Human Rights, 1948. Homage to human rights which calls for prisons, prison staff and prisoners reform, his Lordship declared.

This is a welcome trend. It would certainly be able to incalculate a sense of accountability in public authorities discharging public duties towards the people and particularly towards the weaker sections of society. This new trend of interpreting the provisions of the Part III of the Constitution, it is submitted, would go a long way in protecting fundamental rights of citizens, outside the prison and within the prison, and securing a social order where individual shall be free from inhuman and barbarous treatment.

American Constitution: The Constitution of America embodies the Bill of Rights in the first ten amendments to the Constitution. These rights were declared in absolute terms. The Constitution contained no limitation on these rights. But it was soon realised that for the maintenance of public order, to prevent corruption in the public morale, incitement to crime and the like, some limitations must of necessity be imposed upon the liberty of the individual. The Supreme Court, in interpreting the Constitution had, therefore, to invent the doctrine of 'police power' of the State, under which the State has the inherent power to impose such restriction upon the fundamental rights as are necessary to protect the common good, e.g., public health, safety and morals. [Giltow Vs. New York (1925) 268 US 652]. The liberty of an individual must yield to the common good. What is police poweris again a question to be decided by the Court. The Supreme Court of America has given a very wide meaning to the term 'police power' so as to include everything that temds to promote the public welfare, e.g., increase the industries of the State, develop its resources and add to its wealth and prosperity. [Day Brite Lighting Vs. Missouri (1952) 342 US 421].

The Indian Constitution does not leave the question of limitation to be decided by the Judiciary.Limitations are prescribed by the Constitution itself. In addition to this, the Supreme Court has itself held that the provisions of our Constitution should be interpreted by the plain words used in the Constitution and not with reference to the connotation to police power in American Constitutional Law. [Chiranjit Lal Vs. Union of India, AIR 1951 SC 42 per Mukherjee. J. at p. 56]. Our Constitution does not recognise this doctrine of 'police power'. The object of specifying the restrictions in clauses (2) to (6) of Article. 19 was to define with certainty the limitations that might be imposed upon the freedoms instead of leaving that to the disposal of the judges.

But what constitutes 'reasonable restriction' is again a matter to be decided by the courts in each case which comes before it. By the reason of the word 'reasonable', the Indian Constitution partially imports the American doctrine. The only difference is that while in the USA the Supreme Court had to assume the power of reviewing Legislative Acts under the cover of interpreting the 'due process' clause, the Indian Constitution specifically confers this power upon the courts by the use of the word 'reasonable' in clauses (2) to (6) of Article. 19.

Suspension of Fundamental Rights: The Fundamental Rights are not absolute rights. The Constitution, therefore, provides for the curtailment or the suspension of the Fundamental Rights in the following circumstances:

Article. 358 provides that when the proclamation of emergency is made by the President under Article. 352 the freedoms guaranteed by Article. 19 are automatically suspended and would continue to be so for the period of emergency. The suspension of rights guaranteed by Article. 19 thus removes restriction on the Legislative and Executive powers of the State imposed by the Constitution. Any law, executive order made by the State during this period cannot be challenged on the ground that they are inconsistent with the rights guaranteed by Article. 19. Such laws shall, however, cease to have effect as soon as the proclamation ceases and then Article. 19 is automatically revived and begins to operate. Article. 358, however, makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over. Article. 359 further empowers the President to suspend the right to move any Court for the enforcement of rights conferred by Part. III of the Constitution (except Articles. 20 and 21) during the continuance of emergency. The suspension of the right to move the courts for the enforcement of the fundamental rights can be done by an order of the President. He may mention in his order the rights whose enforcement is to be suspended. The order of the President may extend to the whole or any part of the territory of India. It is to be noted that while under Article. 358 of the rights conferred by Article. 19 are automatically suspended, the suspension under Article. 359 can only be brought about by an order of the President.

Classification of Fundamental Rights: The fundamental rights as incorporated in the Indian Constitution can be classified under the following six groups:

1. Right to equality (Articles. 14-18)
2. Right to Freedom. (Articles. 19-22).
3. Right against exploitation. (Articles. 23-24).
4. Right to freedom of religion. (Articles. 25-28).
5. Cultural and Educational Rights. (Articles. 29-30).
6. Right to Constitutional Remedies. (Articles. 32-35).

The 44th Amendment has abolished the right to property as a fundamental right as guaranteed by article. 19(1)(f) and Article. 31 of the Constitution, and hence Article. 19(1)(f) and Article. 31 has been omitted.

Fundamental Rights available against State and not against private individuals: Individual needs constitutional protection against the State. The rights which are given to the citizens by way of fundamental rights as included in Part. III of the Constitution are a guarantee against State action as distinguished from violation of such rights from private parties.

 

                  

             

About the Author

C. S. Chakravarthy

H. No. 12-13-301, St. No. 9,

Lane. No. 1, Flat. No. 203,

Satya Classic Apartments,

Tarnaka, Secunderabad-500 017

Cell. No. 9985732397

Land Line No. 040-27000719

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