INTRODUCTION
The fundamental rights in India are
enshrined in the Part III of the Constitution of India guarantee civil
liberties such that all Indians can lead their lives in peace and harmony as
citizen of India. These include individual rights common to most liberal
democracies, such as equality before law, freedom of speech and expression,
freedom of association and peaceful assembly, freedom to practice religion, and
the right to constitutional violation of these rights result in punishment as
prescribed in the Indian Penal code, subject to discretion of the judiciary.
The fundamental rights are defined
as basic human freedoms which every citizen has the right to enjoy for a proper
and harmonious development of personality. These rights universally apply to
all citizens, irrespective of race, place of birth, religion, caste, creed or
sex. They are enforceable by the courts subject to the certain restrictions.
The rights have their origins in many sources including 'England Bill of
Rights', ' United States Bill Of Rights' and 'France's Declaration of the Right
of Man'.
The fundamental rights in our
constitution have been grouped under following seven heads-
1. Right to equality
(Articles.14-18)
2. Right to freedom (Articles
19-22)
3. Right against exploitation
(Article 23-24)
4. Right to freedom of Religion
(Articles 25-28)
5. Cultural and Educational rights
(Articles 29-30)
6. Right to property (Articles 30A,
31A, 31B & 31C)
7. Right to constitutional remedies
(Article 32 to 35).
As the Fundamental Rights
constitute by and large a limitation on the government, the most important
problem which the courts have been faced with while interpreting these rights
has been to achieve a proper balance between the rights of the individuals and
those of the state or the society as a whole, between individual liberty and
social control. This is a very difficult as well as a delicate task indeed in
these days of development of the country in a social welfare state.
Rights literally mean those
freedoms which are essential for the personal good as well as the good of the
community. The rights guaranteed under Part III of the Constitution of India
are fundamental as they have been incorporated into the Fundamental Law of the
Land and are enforceable in a Court of Law, however, it does not mean that they
are absolute or that they are immune from Constitutional amendment. There are
certain cases where Indian Judiciary has said that fundamental rights can be
amended and that there can be a harmonious settlement regarding the conflicts
between the two fundamental rights in question or the statutory laws and
fundamental rights of the individuals or states.
FUNDAMENTAL RIGHTS
Fundamental Rights were deemed
essential to protect the rights and liberties of the people against the
encroachments 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[1].
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 concept of fundamental rights protects
individuals against the excesses of the state. The concept of fundamental
rights represents an attempt to protect individuals from oppression and injustice.
In modern times, it is widely accepted that the right to liberty is the very
essence of a free society and it must be safeguarded at all times.
In India, a few good reasons made
the enunciation of the fundamental rights in the constitution rather inevitable.
Secondly, the Indian society is fragmented into many religious, cultural and
linguistic groups and it was necessary to declare Fundamental Rights to give to
the people a sense of security and confidence. Then it was necessary to the
people should have some rights which may be enforced against the Government
which may become arbitrary at time.
The underlying idea in entrenching certain basic and fundamental rights is to take them out of the reach of transient political majorities. It has, therefore, come to be regarded as essential that these rights be entrenched in such a way that they may not be violated, tampered or interfered with by an oppressive Government. With this end in view, some written constitutions guarantee a few rights to the people and forbid governmental organs from interfering with the same. In that case, a guaranteed right can be limited or taken away only by the elaborate and formal process of constitutional amendment rather than by ordinary legislation. These rights are characterized as Fundamental Rights.
JUDICIAL REVIEW
Judicial review implies the power
of the judiciary to check the Constitutionality of acts of other organs of the
Government, when the issue of Constitutionality is germane to the case pending
for decision. This power includes the authority to point out and even refuse to
give effect to governmental acts that the find unconstitutional. We know that
the mere enumeration of the fundamental rights in the constitution without an
adequate guarantee remedial action in case of their violation would negate the
very meaning of the rights. Hence, the Constitution has set up the Supreme
Court and other courts as the custodian and guarantor of the rights.
In Art.13 it is mentioned that the
laws inconsistent with the fundamental rights would be void. Article 32 and
Article 226 vest in the Supreme Court and High courts the authority to apply
constitutional remedies for the protection of the fundamental rights. These
Articles guarantee the right to move the Supreme Court for enforcement of the
rights. The Supreme Court has the power to issue appropriate directions, writs
and orders. The right to make the use of constitutional remedies itself is made
a fundamental right in Part-III of the constitution. In 1951, in a case of Chintamanrao
v. state of Madhya Pradesh[2],
the court held that the Supreme Court watches and guards the rights guaranteed
by the Constitution. in exercising its function it has the power to set aside a
legislative act if it is in violation of the freedoms guaranteed in the
Constitution.
Art.32 contains the right to
constitutional remedies was described by Dr. Ambedkar as heart and soul of the
Indian Constitution. This Article provides for enforcement of the fundamental
rights by the Supreme Court. It confers on the people the right to move the
purpose of protection of the fundamental rights Supreme Court possess the right
of Judicial review.
JUDICIARY AND
PROTECTION OF FUNDAMENTAL RIGHTS
The scope of judicial action in the
protection of fundamental rights is somewhat limited. First of all, the
Constitution itself spells out reasonable restrictions that can be placed by
the State on the fundamental rights. It means that in the interest of public
order, security of the prevention of incitement to violence, rights may be
curtailed. However, the judiciary can scrutinize the law in terms of its
reasonableness. The Supreme Court has held that a restriction will not be
regarded as reasonable if it is excessive, i.e. greater than that required
under prevailing circumstances, objective of restrictions and protection of
public interests.
The Directive Principles of State
Policy are a necessary appendage to the fundamental rights. They were conceived
and placed in the Constitution with the objective of bringing socio-economic
justice to masses. Economic and social rights which could not be guaranteed due
to paucity of resources were placed in these directives. These are only
directives to state and are non-enforceable by courts. However, they also
impose restrictions on fundamental rights.
In implementing the fundamental
rights the Parliament has passed certain laws that infringe the fundamental
rights. Many of these have been nullified by the Court. This has led to a
controversy on the superiority of fundamental rights or directive principles.
The preamble to our Constitution
envisages a society based on the principles of socio-economic justice. In
keeping with this the Parliament passed many laws that related to abolition of
landlordism or zamindari system. These laws were challenged in the courts on
the ground that they violated fundamental right to property.
In Shankari Prasad vs. Union Of
India[3],
Supreme Court upheld Parliament's power of amending the Constitution including
Part III. In this case, the Supreme Court held that laws under Article 13 meant
only ordinary laws and not Constitutional amendments (Shankari Prasad). It
implied that the Parliament could abridge the rights through constitutional
amendment.
In 1971, the 24th and 25th
amendments to the constitution restricet the fundamental rights by saying in
25th amendment if a bill was passed to provide for deconcentration of economic
power( as enshrined in 39 B and C of Directive Principles), it could not be
challenged in a Court even if it violates certain fundamental rights.
The 24th amendment provided that
Constitution amendment shall not be included under the term law. It meant that
the Parliament could restrict the fundamental rights through Constitutional
amendment.
Thus these two amendments
considerably restricted the operation of judicial review in regard to the
fundamental rights.
In Keshvanand Bharti
Sripadagalavaru v. State of Kerala[4]
the Supreme Court upheld the validity of these amendments and
overruled the Golaknath case by holding that it is competent for
Parliament to amend Fundamental Rights. However, it added that the basic
structure of the Indian Constitution should not be altered.
Further blow to the Judicial Review
was given by the 42nd amendment which reiterated that no amendment of the
Constitution including part III could be challenged in any court on any ground.
Supreme Court restored its power of
Judicial Review in Minerva Mills vs. Union Of India[5]
by striking down that part of the 42nd amendment which gave unbridled power
to the Parliament to amend the Constitution. The 44th amendment took away right
to property from the list of fundamental rights.
Hence the position regarding
fundamental rights is that we have only six fundamental rights now with the
parliament retaining the power to amend them. So far we have seen how the
Supreme Court's power of Judicial Review had tried to protect fundamental right
to property until it was deleted by the 44th amendment.
The exercise of judicial review by the judiciary upon the fundamental rights are categorized below:-
1)
RIGHT TO
EQUALITY-
The right to equality is an
important right which enshrines equality before the law and equal protection of
laws. It means absence of special privileges and equality of treatment. We
believe that absolute equality is impossible, hence the right to equality would
mean, as the Supreme Court has interpreted it, that all persons similarly
circumstanced must be treated equally both in terms of privileges and
liabilities.
The right to equality enshrines
that citizens cannot be discriminated on the basis of religion, race, caste, or
place of birth. The Supreme Court has struck down many laws that discriminated
citizens on these grounds. The Constitution allows special provision for
backward classes, scheduled castes and scheduled tribes. This has led to
reservation of seats for them in educational institutions. However, in some
cases in some states, reservation, to a great extent, tends to discriminate
against meritorious students.
In the State of Kerala vs. Dr.
K.V.Gupta (1980), the Supreme Court held that if only two per cent seats
were left to be filed by open competition, after making reservation for all
categories, reservation was arbitrary and unreasonable.
2) RIGHT TO FREEDOM-
Article
19 confers vital freedoms such as "freedom of speech and Expression,"
freedom to "assemble peacefully and without arms," to "form
associations or unions," to move freely and to reside and settle in any
part of the country," and to practice any profession, occupation, trade or
business. These rights are subject to "reasonable restrictions" on
specific grounds mentioned in the Constitution.
"Democracy is based essentially on free debate discussion, for that is the only corrective of government action in a democratic setup. The democracy means government of the people by the people it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential."
In A.K.Gopalan case[7], the Supreme Court observed, "Man as a rational being desires to do many things, but in a civil society his desire has to be controlled, regulated and reconciled with the exercise of similar desire by other individual the guarantee of each of the above right is, therefore, restricted by the constitution itself by conferring upon the state power to impose by law reasonably."
3)
RIGHT AGAINST
EXPLOITATION-
Articles 23 and 24 of the Constitution evidence how deeply committed the founding fathers were to creating a human society in India. Article 23 prohibits traffic in human beings and beggar and other similar forms of forced labor, while Article 24 prohibits the employment of children below the age of 14 years in factories, mines, and other hazardous work situations.
In
Bandhua Mukti Morcha vs. Union Of India[8],
the Supreme Court held that when an action is initiated in the court
through Public Interest Litigation alleging the existence of bonded labor
system exist and as well as to take opportunity to examine whether bonded labor
system exist and as well as to take appropriate step to eradicate that system.
This is the Constitutional obligation of the government under Article 23 which
prohibit 'forced labor' in any form. It was only in 1976 that Parliament
enacted the Bonded Labor System (Abolition) Act.
4) RIGHT TO FREEDOM OF RELIGION-
Various facets of religious freedom rights are delineated in Articles 25 through 28 of the Constitution. Article 25 guarantees to all people’s freedom of conscience and the right freely to profess, practice, and propagate their religion. Interestingly, the State is vested with far reaching powers to regulate this freedom not merely in its secular aspects-in the interests of public order and morality but also to effect social reform and compel public Hindu temples to open their doors to all classes of Hindus. Public order, morality, and health are the only explicit restrictions on this right. Freedom to manage religious affairs, which includes establishing and maintaining institutions for religious and charitable purposes, is also guaranteed to every religious denomination in the country. Article 27 prohibits compelling any person to pay taxes for the promotion or maintenance of a particular religion or denomination. This Article embodies some principles underlying the establishment clause in the United States Constitution. Religious instruction in educational institutions wholly maintained by state funds is also constitutionally prohibited in India.
In
S.R.Bommai vs. Union of India[9],
the Supreme Court held- "'secularism' is the basic feature of
the constitution. The State treats equally all religion and religious
denomination. Religion is the matter of individual faith and cannot be mixed
with secular activities. Secular activities can be regulated by the state by
enacting a law." Justice
Ramaswami observed that secularism is not anti-God in Indian context
secularism has positive content...The state is neither anti-religion nor
pro-religion, the state is neutral and treats every religion as equal.
5) CULTURAL AND EDUCATIONAL RIGHTS
India is a multi-ethnic and multi-religious nation reflecting a rich diversity of castes, religions, languages, and cultures. In establishing a secular state founded on the principle of equality, the founding fathers were guided by the principle of enlightened accommodation of diverse faiths and religions. Accordingly, the Constitution contained special provisions protecting the interests of minorities. Any distinct religious, cultural, and linguistic group enjoys the right to freely establish and administer institutions to preserve their culture, language, and script. Where such institutions receive grants from the state, they must comply with the constitutional ban on certain kinds of discrimination in their admission policies.
In S.P.Mittal vs. Union of India[10], the Supreme Court has stated, "In order to claim the benefit of Article 30(1), the community must show: (a) that it is religious/linguistic minority; (b) that the institution was established by it. Without satisfying these two conditions it cannot claim the guaranteed rights to administer it."
6)
RIGHT TO
PROPERTY-
Originally the Constitution guaranteed the right to property. This right, however, was deleted from the list of fundamental rights by the 44th Constitutional Amendment Act of 1978, in April 1979.
In Minerva Mills vs. Union of
India[11],
the Court struck down that part of the 42nd amendment which gave unbridled
power to the Parliament to amend the Constitution. The 44th amendment took away
right to property from the list of fundamental rights. Now we have only six
fundamental rights in Part III of the Indian Constitution.
7) RIGHT TO CONSTITUTIONAL REMEDIES-
All the above rights would be futile in the absence of a right to move the court for their enforcement. Happily, the Constitution guarantees this crucial right in Article 32. Any person, citizen and alien alike-has the right to invoke the highest court's jurisdiction for the vindication of his or her constitutional rights. Article 32 can be invoked only when there is infringement of a fundamental right.
The
Supreme Court in Hindi Hitarashak Samiti vs. Union Of India[12],
has laid emphasis on this aspect of article 32 as follows:
FUNDAMENTAL RIGHTS: TO BE CONSTRUED BROADLY
It
is the settled principle of interpretation that the constitutional provisions
must receive a broad interpretation of such provisions, in particular, the FRs
should not be cut down by too astute or too restricted on approach, as Supreme Court
stated in Sakal Papers Ltd. v. Union of India[13]
The principle of the above decision was cited with approval by the Supreme Court in Life Insurance Corporation of India v. Manubhai D. Shah[14], "While interpreting the scope of 'Freedom of Speech and Expression' as contained in Art. 19(1) (a) of the Constitution. The Court reasoned that the fundamental Rights are intended to serve generation of generation and they had to be stated in broad terms leaving scope for expansion by the courts. Such an intention must be ascribed to the Constitution makes since they have themselves made provisions in the constitution to bring about socio-economic transformation. This being so, it is reasonable to infer that the Constitution makes employed a broad phraseology while drafting the FRs so that they may be able to cater to the needs of the changing society. The Court held that FRs in particular must be construed unless the context otherwise requires.”
The
Supreme Court noted with approval the approach of the American Supreme Court
which has always placed a broad interpretation to the Constitutional Provisions
for the obvious reason that the Constitution has to serve the needs of an ever
changing society.
Thus, the scope and ambit of FRs should not be cut down by too astute or too restricted approach but must be given broad construction unless the context otherwise requires.
The FRs incorporated in the Constitution are not natural rights or inalienable rights, they are merely political and civil rights guaranteed by the Constitution. The earlier view of the SC in Golak nath Case[15], that the FRs are moral or natural rights did not hold the field for long and the SC in Minerva Mills Ltd. v. Union Of India[16] held that FRs are not one of the basic structure of the Constitution and the FRs under the Indian Constitution are specific rights conferred by the Constitution.
CONCLUSION
Therefore, it can be construed that the abstract on mere declaration of the fundamental rights in the Constitution is meaningless unless there is effective machinery for the enforcement of the rights. The Supreme Court has been assigned by the Constitution its special role as the protector and guarantor of the fundamental rights. Judicial vigilance through review has prevailed upon the state i.e., the executive and legislative to honor the rights of the people while maintaining the needs of society.
[1] Moti
Lal v. State of U.P.
[2] AIR 1951 SC 118
[3] AIR 1952 SC 455
[4] AIR 1973 SC 1461
[5] (1980) 3 SCC 625
[6] (1978) 2 SCJ 350
[7] 1950 AIR 27
[8] AIR 1984 SC 802
[9] AIR 1994 SC1918
[10] AIR 1983 SC 1
[11] (1980) 3 SCC 625
[12] AIR 1990 SC 851
[13] AIR
1962 SC 305
[14] AIR 1993 SC 177
[15] AIR 1967 SC 1643
[16] (1980) 3 SCC 625
[17] AIR 1993 SC 2178
[18] AIR 1958 SC 578
Comments
Post a Comment