Chapter 9: FUNDAMENTAL RIGHTS

    • The Constitution of England is unwritten. Hence, there is, in England, no code of Fundamental Rights as exists in the Constitution of the United States or in other written Constitutions of the world. This does not mean, however, that in England there is no recognition of those basic rights of the individual without which democracy becomes meaningless.

    • The object, in fact, Is secured here in a different way. The foundation of individual rights In England may be said to be negative, In the sense that an individual has the right and freedom to take whatever action he likes, so long as he does not violate any rule of the ordinary law of the land. Individual liberty is secured by judicial decisions determining the rights of individuals in particular cases brought before the Courts.

    • The Judiciary is the guardian of individual rights In England as elsewhere; but there is a fundamental difference. While in England, the Courts have the fullest power to protect the individual against executive tyranny, the Courts are powerless as against legislative aggression upon individual rights.

    • In short, there are no fundamental rights binding upon the Legislature in England. The English Parliament being theoretically ‘omnipotent’, there is no law which it cannot change. As has been already said, the individual has rights, but they are founded on the ordinary law of the land which can be changed by Parliament like other laws.

    • So, there is no right which may be said to be ‘fundamental’ in the strict sense of the term. Another vital consequence of the supremacy of Parliament is that the English Court has no power of judicial review over legislation at all. It cannot declare any law as unconstitutional on the ground of contravention of any supposed fundamental or natural right.

    • The fundamental difference in approach to the question of Individual rights between England and the United States Is that while the English were anxious to protect Individual rights from abuse of executive power, the framers of the of the American Constitution were apprehensive of tyranny not only from the Executive but also from the Legislature, -ie., a body of men who for the time being form the majority In the Legislature.

    • So, the American Bill of Rights contained in the first Ten Amendments of the Constitution of the U.S.A. is equally binding upon the Legis- lature as upon the Executive.

    • The result has been the establishment in the United States of a ‘judicial supremacy’, as opposed to the ‘Parliamentary supremacy’ in England.

    • The Courts in the United States are competent to declare an Act of Congress as unconstitutional on the ground of contravention of any provision of the Bill of Rights.

    • Further, It is beyond the competence of the Legislature to modify or adjust any of the fundamental rights in view of any emergency or danger to the State.

    • That power has been assumed by the Judiciary in the United States

    • In India, the Simon Commission and the Joint Parliamentary Committee which were responsible for the Government of India Act, 1935, had rejected the idea of enacting fundamental rights on the ground that “abstract declarations are useless, unless there exist the will and the means to make them effective”.

    • But nationalist opinion, since the time of the Nehru Report, 1 was definitely in favour of a Bill of Rights, because the experience gathered from the British regime was that a subservient Legislature might serve as a handmaid to the Executive in committing inroads upon individual liberty.

    • Regardless of the British opinion, therefore, the makers of our Constitution adopted Fundamental Rights to safeguard individual liberty and also for ensuring (together with the Directive Principles) social, economic and political justice for every member of the community.

    • So, the Constitution of India has embodied a number of Fundamental Rights in Part III of the Constitution, which are (subject to exceptions, to be mentioned hereafter) to act as limitations not only upon the powers of the Executive but also upon the powers of the Legislature.

    • Though the model has been taken from the Constitution of the United States, the Indian Constitution does not go so far, and rather effects a compromise between the doctrines of Parliarneruary sovereignty and Judicial supremacy.

    • On the other hand, the Parliament of India cannot be said to be sovereign in the English sense of legal omnipotence,-for, the very fact that the Parliament is created and limited by a written Constitution enables our Parliament to legislate only subject to the limitations and prohibitions imposed by the Constitution, such as, the Fundamental Rights, the distribution of legislative powers, etc.

    • In case any of these limitations are transgressed, the Supreme Court and the High Courts are competent to declare a law as unconstitutional and void. So far as the contravention of Fundamental Rights is concerned, this duty is specially enjoined upon the Courts by the Constitution (Art. 13), by way of abundant caution. To this extent, our Constitution follows the American model rather than the English.

    • The powers of the Judiciary vis-a-vis the Legislature are weaker in India than in the United States in two respects:

    • Firstly, while the declarations in the American Bill of Rights are absolute and the power of the State to impose restrict upon the fundamental rights of the individual in the collective interests had to be evolved by the Judiciary,-in India, this power has been expressly conferred upon the Legislatures by the Constitution Itself in the case of the major fundamental rights, of course, leaving a power of judicial review in the hands of the Judiciary to determine the reasonableness of the restrictions imposed by the Legislature.

    • Secondly, by a somewhat hasty step, the Janata Government, headed by Morarji Desai, has taken out an important fundamental right, namely, the right of Property, by omittng Arts. 19(1)(f) and 31, by the 44th Amendment Act, 1978.

    • Of course, the provision in Art. 31(1) has, by the same amendment, been transposed to a new article ,-Art. 300A, which is outside Part III of the Constitution and has been labelled as ‘Chapter IV’ of Part XII (which deals with ‘Finance, Property. Contracts and Suits’),-but that is not a ‘fundamental Right’.

    • While under the Congress rule for 30 years, the ambit of the Funda- mental Rights embodied in Part III of the original Constitution had been circumscribed by multiple amendments, bit by bit, the death blow to one of the Fundamental Rights came from the Janata Government.

    • The net result of the foregoing amendments inflicted upon the right to property are-

    • The right not to be deprived of one’s property save by authority of law Is no longer a ‘fundamental right’. Hence. if anybody’s property is taken away by executive fiat without the authority of law or in contravention of a law, the aggrieved Individual shal1 have no right to move the Supreme Court under Art. 32.

    • If a Legislature makes a law depriving a person of his property, he cannot challenge the reasonableness of the restrictions imposed by such law, invoking Art. 19(1)(f), because that provision has ceased to exist.

    • Since C1.(2) of Art. 31 has vanished, the individual’s right to property is no longer a guarantee against the Legislature in respect of any compensation for loss of such property. Article 31(2) [In the original Constitution] embodied the principle that if the State makes a compulsory acquisition or requisitioning of private property, it must (a) make a law; (b) such law must be for a public purpose; and (c) some compensation must be paid to the expropriated owner.

    • Of course, by the 25th Amendment of 1971, during the the regime of Mrs. Gandhi, the requirement of ‘compensation’ was replaced by an amount’, the adequacy or which could no longer be challenged before the Courts.

    • Nevertheless, the Supreme Court held, the aggrieved individual might complain If the ‘amount’ so offered was illusory or amounted to ‘confiscation’ But even such an innocuous possibility has been foreclosed by the 44th Amendment

    • The short argument advanced in the Statement of Objects and Reasons of the 45th Amendment Bill for deleting the fundamental right to property Is that it was only being converted into a legal right

    • What is meant is that while Arts. 19(1)(f) and 31(2) of the original Constitution operated as limitations on the Legislature itself, the 45th Amendment bill installs the Legislature as the guardian of the individual’s right to property, without any fetter on its goodwill and wisdom.

    • But if the Legislature could be presumed to be so infallible and innocent, this would be a good argument for omitting all the fundamental rights from Part III. As it has been pointed out earlier, the very justification of putting limitations on the Legislature by adopting a guarantee of Fundamental Rights is that history has proved that the group of human beings constituting, for the time being, the majority in a Legislative body, are not always infallible and that is why constitutional safeguards are necessary to permanently protect the individual from legislative tyranny.

    • Thirdly, by subsequent amendments, the arena of Fundamental Rights has been narrowed down by introducing certain exceptions to the operation of fundamental rights, namely, Articles 31A, 31B, 31C, 31D

    • Of these, Arts. 31A, 31C are exceptions to the fundamental rights enumerated in Articles 14 and 19; this means that any law falling under the ambit of Art. 31A (e.g., a law for agrarian reform), or Art. 31C (a law for the’implemen. tation of any of the Directive Principles contained in Part IV of the Constitution), cannot be invalidated by any Court on the ground that it contravenes any of the fundamental rights guaranteed by Art 14 (equality before law); Art. 19 (freedom of expression, assembly, etc.).

    • Art. 31B, however, offers almost complete exception to all the fundamental rights enumerated in Part III. If any enactment is included in the 9th Schedule, which is to be read along with Art. 31B, then such enactment shall be immune from constitutional invalidity on the ground of contravention of any of the fundamental rights. But shall be open to challenge on the ground of damage to the basic structure of the Constitution subsequent to 24-4-1973 (ie. the date of decision in Kesavananda’s case)

    • Fourthly by the 42nd Amendment Act, 1976, a countervailing factor has been introduced, namely, the Fundamental Duties mentioned in Art. 51A Though these Duties are not themselves enforceable in the Courts nor their violation, as such, punishable, nevertheless, if a Court, before which a fundamental right is sought to be enforced, has to read all parts of the constitution, it may refuse to enforce a fundamental Right at the instance of an individual who has patently violated any of the Duties specified in Art. 51A. If so, the emphasis of the original Constitution on fundamental rights has been minimised.

    • Fifthly, the category of ‘fundamental rights’ under our Constitution is exhaustively enumerated in Part III of the Constitution. The American Constitution (9th Amendment) expressly says that the enumeration of certain rights in the Bill of Rights “shall not be construed to deny or disparage others retained by the people.” This rests on the theory of inalienable natural rights which can by no means be lost to the individual in a free society; the guarantee of some of them in the written Constitution cannot, therefore, render obsolete any right which Inhered in the individual even before the Constitution, e.g., the right to engage in political activity. But there is no such non enumerated right under our Constitution.

    • As was observed in the early case of A.K. Gopalan v. State of Madras, the Legislatures under our Constitution being sovereign except insofar as their sovereignty has been limited by the Constitution either expressly or by necessary implication, the Courts cannot impose any limitation upon that sovereignty either on the theory of the ‘spirit of the Constitution’ or of that of ‘natural rights’, i.e., rights other than those which are enumerated in Part III of the Constitution.

    • Any expansion of the Fundamental Rights under the Indian Constitution must therefore, rest on judicial interpretation and the Supreme Court has gone ahead in this direction by enlarging the scope of Art. 21

    • It should not be supposed, however, that there is no other justiciable right provided by our Constitution outside Part III upon the State are imposed by other provisions of the Constitution and these limitations give rise to corresponding rights to the individual to enforce them in a Court of law if the Executive or the Legislature violates any of them.

    • Thus, Art. 265 says that “no tax shall be levied or collected except by authority of law” This provision confers a right upon an individual not to be subjected to arbitrary taxation by the Exe- cutive, and if the ExecuUve seeks to levy a tax without legislative sanction, the aggrieved individual may have his remedy from the Courts.

    • The new provision in Art. 300A belongs to this category. Similarly. Art. 301 says that “subject to the provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free”.

  • If the Legislature or the Executive imposes any restriction upon the freedom of trade or intercourse which is not justified by the other provisions of Part XIII of the Constitution, the Individual who is affected by such restriction may challenge the action by appropriate legal proceedings.

Quiz

Score more than 80% marks and move ahead else stay back and read again!


Q1:Features of fundamental rights are
1.Government can impose reasonable restrictions on them on certain grounds. These grounds can be challenged by courts.
2.Some protect against arbitrary action of state and individual but most protect against action by state.
3.An aggrieved person can move the SC directly for protection.
4.All

Q2:Equality before the law and equal protection of law is applicable to
1.citizens, aliens and legal persons
2.Corporations, Organizations
3.both
4.none

Q3: Which is true
1.President or governor enjoys immunity for any act [civil / criminal] done in office or during exercise of powers.
2.The enjoy immunity from criminal proceeding even for personal actions during their term.
3.Civil proceeding can be initiated against them for things done in personal capacity during their term only after giving a 60 day notice.
4.All

Q4: preventive detention the maximum period for detention is
1.3 months
2.2 months
3.1 month
4.none

Q5:Right to Constitutional remedies has the features
1.The Supreme Court and high courts [article 226] can issue writs to protect for enforcement of these rights.
2.Supreme Court is thus the guarantor or guardian of fundamental rights. It is the guardian of the constitution.
3.President can suspend the right to move Supreme Court for enforcement of fundamental rights during national emergency.
4.All are applicable