Description of the Module:
Items Description of Module
Subject Name Human Rights and Duties
Paper Name Philosophical Foundations of Human Rights; Duties and Responsibilities Module Name/Title Inherent Limits to the Enjoyment of Fundamental Rights
Prerequisites None
Objectives To discuss Fundamental Rights contained in the Indian Constitution Keywords Fundamental Rights, Indian Constitution
AIMS OF THE MODULE
To be able to appreciate the relationship between DPSP and Fundamental Rights
To learn about the reasonable restrictions given under Fundamental Rights
To appreciate the view of judiciary in explaining the limits of fundamental rights given under the constitution.
Role Name Affiliation
Principal Investigator Professor (Dr.) YSR Murthy
Professor and Registrar, OP Jindal Global University, Haryana
Paper Coordinator Professor Dabiru Sridhar Patnaik
Director, Centre for Post Graduate Legal Studies, OP Jindal Global University, Haryana Content Writer Dr. Pallavi Kota Assistant Professor, Dr. BR Ambedkar College
of Law, Andhra University, Vishakhapatnam Content Reviewer Professor (Dr.)
Gurjeet Singh
Professor and Dean, Faculty of Law, Guru Nanak Dev University, Punjab
INHERENT LIMITS TO THE ENJOYMENT OF FUNDAMENTAL RIGHTS UNDER THE INDIAN CONSTITUTION
INTRODUCTION:
The Fundamental Rights are laid down in Part III of the Indian Constitution and is considered as one of an integral part of Indian Constitution. The Fundamental Rights are the rights guaranteed by the Constitution to the people of the country and are defined as the basic human freedoms which every individual has a right to enjoy a proper and harmonious development of personality. The concept of Fundamental Rights is mainly derived from four declarations. This chapter of the Constitution of India has been described as the Magna Carta of India. As early as 1214 the English people exacted an assurance from King John for respect of the then 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 the Citizen (1789) declared the natural, inalienable and sacred rights of Man. Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man and the Citizen of France, the Americans incorporated the Bill of Rights in their Constitution. These rights find their origin in many places such as England Bill of Rights, United States Bill of Rights and France Declaration of Bill or Rights of Man. The framing of Indian Constitution can be best known by browsing transcripts of Constituent Assembly debate.
The framers of Indian Constitution had three things in mind- ensuring unity, democracy and creating asocial revolution. The Constitution of India took nearly three years in its formation and finally came into force on 26th January 1950. The biggest challenge before the Constituent Assembly was to evolve a document that would address the diversity amongst the population, create accountable governance and an independent republic.The inclusion of aset
of Fundamental Rights had its genesis in the forces that operated in the national struggle during British rule.
Ms. Annie Besant described the Constitution of India Bill as ‘home rule bill’. This bill envisaged for India a Constitution guaranteeing to every one of its citizen freedom of expression, inviolability of one’s house, theright to property, equality before thelaw and regarding public offenses right to present claims, petition and complaints, and rights to personal liberty. The Indian National Congress at its Bombay session in August 1918 demanded the inclusion of adeclaration of rights of the people of India as the British citizens in the new Government of India as the British citizens in the new Government of India Act.
An individual to lead a life requires some rights. Rights have been described as those claims of an individual that is necessary for the development of his oneself and are recognized by society or state. Some of the rights that are recognized by the state and enshrined in the Constitution are called Fundamental Rights. Fundamental Rights are those rights of an individual that are enforceable through courts of law. The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed or gender. They are enforceable by the courts, subjectto specific restrictions. Authoritarian Constitutions typically allow the legislature to determine the limitations on rights, with few restrictions on the discretion of the legislature to determine the extent of those limits. In other words, Constitutional rights exist only to the extent that legislatures allow them. Restrictions can be imposed only by or under the authority of law. Restrictions cannot be imposed by the executive action without legal authority. The restriction must be reasonable.
HISTORICAL SUPPORT TO THE FUNDAMENTAL RIGHTS:
Part III of the Constitution of India, titled as “Fundamental Right” secures to the people of India, certain basic, natural and inalienable rights. The aim of Fundamental rights is to make inviolable certain elementary rights pertaining to the individual and to keep them unaffected by
the majorities in the legislatures. It is to preserve certain basic human rights against interference of the state. The inclusion of a chapter on Fundamental Rights in the Constitution is in accord with the trend of modern democratic thought. These rights are basic to a democratic polity. The object is not only, to ensure the inviolability of certain essential rights against political vicissitudes, but also to impress upon the people the fact of their having reached a new level of national existence.
The Fundamental Rights do not comprise of many important economic and social rights such as the right to work, rest and leisure, education and social security. These rights are conspicuously mentioned in the Constitutions of communist countries like the USSR. Indian Fundamental rights contrasted with such rights contained in the U.S bill of rights, present several peculiarities. First, the Fundamental Rights in India are far more elaborate than in U.S.A.
Historical documents such as England’s Bill or Rights, the United States Bill of Rights and France’s Declaration of the Rights of Man inspired the development of Constitutional rights in India. In 1928, an All Parties Conference of representatives from Indian political parties proposed Constitutional reforms for India. That 11-member committee, led by Motilal Nehru, had been called into existence as a formal instrument to complement the widespread civil disobedience campaigns of the 1920s. Those mass campaigns had originally been a response to the Rowlett Acts, which in 1919 had given the British colonial government the powers of arrest and detention, conduction of searches and seizures without warrants, restriction of public gatherings and censorship of the press. Demanding dominion status and elections under universal suffrage, the committee called for guarantees of rights deemed fundamental, representation for religious and ethnic minorities and limitations on government powers.
In 1931, the Indian National Congress, at its Karachi session, adopted resolutions defining, as well as committing itself to the defense of fundamental civil rights, including socio- economic rights such as minimum wage, the abolition of untouchability and serfdom.
Committing themselves to socialism in 1936, the leaders of the Congress party took examples
from the Soviet Constitution, which inspired the fundamental duties of citizens as a means of collective, patriotic responsibility. The Constituent Assembly of India, which composed of elected representatives under the presidency of Rajendra Prasad, undertook the task of developing a Constitution for an independent India. The assembly appointed a Constitution drafting committee headed by Bhimrao Ramji Ambedkar. The adoption of the Universal Declaration of Human Rights by the U.N. General Assembly on 10 December 1948 influenced the process. The declaration called upon all member States to adopt those rights in their Constitutions. The final draft of the Constitution included The Fundamental Rights and Directive Principles promulgated on November 26, 1949, while the 42nd Amendment Act added the Fundamental Duties to the Constitution in 1976. Changes in Fundamental Rights, Directive Principles, and Fundamental Duties require a Constitutional amendment that must be passed by a two-thirds majority in both houses of Parliament.
During the freedom struggle of India our national leaders have made promises regarding the Fundamental Rights that the citizens of free India should get, these Fundamental Rights included not only civil and political rights but also social and economic rights. But when India got Independence the leaders realized that it would not be possible for them to grant immediately some of the social and economic rights that they have promised in the past. But at the same time, they did not want to go back on ahurdle. They assigned this task to a sub- committee of the constituent assembly. The sub-committee suggested that the fundamental rights should be divided into two categories. Some rights could be granted immediately and others may be granted in future when the country was in aposition to grant them. This was the genesis of the two parts of the Constitution. Part III of the Constitution deals with fundamental rights while part IV relates to directives principles of state policy.
2.1 Fundamental rights under Indian Constitution:
The Constitution of India guarantees certain Fundamental Rights to the Citizens of India.
Part III of the Indian Constitution guarantees “Fundamental Rights” to all citizens, and some of these, like the right to life (art.21) and the right to equality (art.14), to all persons. The Indian
Constitution contains a chapter on Fundamental rights. Part III (Art.12-35) contains fundamental rights of Indian citizens. The Fundamental Rights are called fundamental because they are basic to the development of human personality.
The fundamental rights as contained in our Constitution are grouped under six categories. They are:
(1)Right to Equality:
Article 14 to 18 of the Constitution deal with the Right to Equality. Article 14 guarantees to all person equality before thelaw and equal protection within the territory of India. In other words, this article asserts the supremacy of law or Rule of Law. Every man irrespective of his status is subject to the same law and the same courts. No law will be held Constitutional if it is discriminatory in its character. Article 16 guarantees equality of opportunity in matters relating to employment or appointments to Public Services to all citizens irrespective of religion, sex, descent, place of birth or residence. Under Article 17 untouchability in any form has been declared unConstitutional. Article 18 lays down that no titles no being military or academic distinction shall be confirmed by the state.The above-mentioned Article, clearly establishes that all the citizens have been guaranteed political and social equality. The Constitution protects them against discriminatory treatment so far as thelaw is concerned all are equal.
(2) Right to Freedom:
Article 19 to 22 guarantee the right to freedom of these Articles, Article 19 is the most significant of this Article guarantee six fundamental freedoms. These are:
(a) Freedom of speech and expression;
(b) Freedom to assemble peacefully and without arms;
(c) Freedom to form associations or unions;
(d) Freedom to move freely throughout the territory of India;
(e) Freedom to reside and settle in any part of India;
(f) Freedom to practice any profession, or to carry on any occupation, trade or business.
However, the enjoyment of these freedoms is subject to certain restrictions. Limitations may be imposed in the interests of thesecurity of thestate, friendly relations with foreign states, public order, and decency to an offense. The right to assemble is subject to the conditions that the assembly must be peacefully unarmed. The state may impose reasonable restriction interests of public order. It may be worthy of note the 6 freedoms guaranteed by the Constitution are not absolute; the state has the power to impose reasonable restrictions on their enjoyment. Article 20, 22 present the individual's life and personal liberty, under Article 20 "no persons shall be convinced to any offence except for violation of law in force at the time the commission of the act charged as an offence, the subject to a penalty greater than that which might have been inflicted under the law force at the time of the commission of the offence."
The Constitution prohibits the enactment of ex-post facto laws. Article 21 secures the most cherished of all fundamental rights. Under the said Article "no person shall be deprived of his life or personal liberty except according to the procedure established by law." The phrase 'procedure established by law is a technical one and it is not the place to examine the phrase 'procedure established by law' carries a meaning different from 'due process of law'. A phrase procedure established by law the Constitution maker has limited the authority of the court in the hands of the legislature to lay down any procedure subject of thecause, to the limitation Article 14, 20 and 22.
(3) Right against Exploitation:
Article 23 and 24 deals with this Right. Article 23 prohibits traffic in human beings including traffic in women for immoral purposes, beggar and other similar forms of forced labor. Article 24 provides that "no child below the age of fourteen years shall be employed to work in the factory or mine or engaged in any other hazardous employment. “However, the state may
impose compulsory service for public proposes but in doing so "the state shall not make any discrimination on grounds only of religion, race, caste or class or any one of them".
(4)Right to freedom of Religion:
This right is dealt under Articles 25 to 28. Article 25 gives freedom of conscience and freedom to profess, practice and propagate any religion subject to public order morality and health. The freedom of religion guaranteed by this Article has two aspects.
In its positive aspect, this Article safeguards the free exercise of religion by all persons.
Negatively it prohibits the state to compel by law any persons to accept any creed or religion.
This Article guarantees and only the right to entertain any religious belief which may be approved of by one's judgment or conscience but also the right to profess, practice and propagate any religion. The state may, however, make laws for social establishments and maintain institutions for religious and charitable purposes to manage its own affairs in matters of religion, to own acquire movable and immovable property and to administer such property in accordance with law under article 27, "no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination". Under Article 28 no religious instruction shall be imparted in any educational institution wholly maintained out of state funds. The obvious implication of these Articles relating to the freedom of religion is that India is a secular state and that the state does not favor any religion nor discriminate against any.
(5) Cultural, Educational, and Minority Rights:
Article 29 and 30 ensure to every section of citizens the protection of their language, script or culture. Article 29 also provides that "no citizen shall be denied admission into any educational institution maintained by the state receiving aid out of State funds on grounds of religion, race, caste, language or any of them". Article 30 "guarantees to all minorities whether based on religion or language the right to establish and administer educational institutions of their choice and declares that in granting aid to educational institutions, the state shall not
discriminate against any educational institution because it is managed by a religious or linguistic minority.” It is a matter to be considered if these provisions ensuring protection to linguistic minorities are not likely to hinder the growth of national unity, national language and national culture of India. According to the forty fourth Amendment Act 1978, "In making any law providing for the compulsory acquisition of any property of an educational institution established and administrated by a minority, referred to in clause (1) the state shall ensure that the amount fixed by or determined under such law for the acquisition of such property such as would not restrict or abrogate the right guaranteed under that clause".
Let us Know: Right to property has been abolished as fundamental rights by the Constitution Amendment Act only some portion of it has been retained.
(6) Right to Constitutional Remedies:
"A mere declaration and insertion of fundamental rights are useless unless there is an effective and easy remedy or machinery, provided in the Constitution itself for enforcing these rights".
Article 32 of the Constitution confers upon every person the right to move the Supreme Court by appropriate proceedings for the enforcement of his Fundamental Rights. The appropriate proceedings or remedies are applications for the issue of directions or orders or write including writs in the nature of habeas corpus. Mandamus,prohibitions, quo-warranto, and certiorari.
These writs can also be issued by the High Court for protecting fundamental rights. Here the jurisdiction of the Supreme Court and High Court is concurrent.
The provision relating to Constitutional remedies was aptly described by Dr. Ambedkar as the "heart and soul of the Constitution". And in fact, it is so because it gives the assurances that the fundamental rights given by the Constitution of India are not merely rights on paper but on the artery, are justiciable and that the Supreme Court cannot refuse to entertain an application seeking protection against violation of fundamental rights. Before this discussion of Fundamental Rights is concluded it may be remarked that the Fundamental Rights including the right to move the Supreme Court may be suspended by the President during the proclamation of an emergency by him. Secondly, it may also be noted that our fundamental rights are not
absolute. They are subject to certain restrictions and we can enjoy them only within acertain limit.
The critics have pointed out that so many limitations of such a wide importance have been placed on the enjoyment of Fundamental Rights that nothing substantial is left out of them. The phrases like 'decency', 'morality', 'public', 'order', 'health', security of state etc. are so general and of so wide importance that it would be simple to invoke them to certain the rights guaranteed by the Constitution. It is therefore contended by the critics that the hand that gave them has taken away also. Preventive Detention Act which impairs personal liberties is also considered a serious threat to right to personal liberty. Special concessions to the scheduled caste and tribes in services at the cost of efficiency is said to be antagonistic to the concept of equality of opportunity.
Likewise, children below the age of 14 have been debarred from a job in the factories without alternative provision for livelihood. Retaining right to religion in a country which has already suffered because religious fanaticism and bigotry is hardly desirable. Right to property is an eyesore for the communists. They are keener for the inclusion of right to work so that the country is rid of unemployment and appalling poverty. There is some weight in these points of criticism. There is a scope for improvement of due attention is paid to these comments.
However, it may be said that the limitations imposed upon the enjoyment of Fundamental Rights make a sense and are in a way necessary to ensure the security of thestate and equal enjoyment of rights by all. Absolute and unrestricted rights are not possible in a civilized society. In every country, the rights of individuals are restricted directly or indirectly.
Despite the several limitations on our rights the fact remains that these rights are fundamental as they have been incorporated into the fundamental law of the land and are justiciable
2.2DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP) AND FUNDAMENTAL DUTIES INHERENTLY IMPOSING LIMITATIONS ON FUNDAMENTAL RIGHTS:
The Constitution which lays down the basic structure of a nation's policy is built on the foundations of certain fundamental values. The vision of our founding fathers and the aims and
objectives which they wanted to achieve through the Constitution are contained in the Preamble, the Fundamental Rights, and the Directive Principles. These three may be described as the soul of the Constitution and the testament of the founding fathers to the succeeding generations together with the later Part on Fundamental Duties. The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State.
The relation between Fundamental Rights and DPSP came up before the Supreme Court first, the court said, “The directive principles have to conform to and run subsidiary to the chapter on fundamental rights. Later, in the Fundamental Rights Case1, the majority opinions reflected the view that what is fundamental in the governance of the country cannot be less significant than what is significant in the life of the individual. Another judge constituting the majority, in that case, said: “In building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles. This view, that the fundamental rights and DPSP are complementary; “neither part being superior to the other”has held the field since. The DPSP have, the through importantConstitutional amendments, become the benchmark to insulate legislation enacted to achieve social objectives, enumerated in some of the DPSP, from attacks of invalidation by courts. This way, legislation for achieving agrarian reforms, and specifically for achieving the objectives of Article 39(b) and (c) of the Constitution, has been immunized from thechallenge as to its violation of the right to equality (art.14) and freedoms of speech, expression, etc. (art 19). However, even here the court has retained its power of judicial review to examine if, in fact, the legislation is intended to achieve the objective of article 39(b) and (c), and where the legislation is an amendment to the Constitution, whether it violates the basic the basic structure of the Constitution. Likewise, courts have used DPSP to uphold the Constitutional validity of statutes that apparently impose restrictions on the Fundamental Rights under article 19 (freedoms of speech, expression, association, residence, travel and to carry on a business, trade or profession), if they are started
11959 SCR 995
to achieve the objective of the DPSP.The inter-relationship doctrine between Fundamental Rights and directive principles of state policy is not only theoretical but also practical and rewarding. Fundamental Rights provide for political freedoms to the citizens by protecting them against excessive state action while directive principles are to securing social and economic freedom by appropriated action both are theinspiration of reform legislation. The fundamental rights should be interpreted in the light of directive principles to observe the limits set by directive principles in the scope of the fundamental rights. For example, article 39, 39-A can be interpreted with article 21 of the Constitution and article 46 can be interpreted with article 29 and 30 of the Constitution. But the rights have real meaning only if individuals perform duties. A duty is something that someone is expected or required to do. Parents, for example, have a duty to take care of their child. You have duties towards your parents. A teacher has a duty to educate students. In fact, rights and duties are two wheels on which the chariot of life moves forward smoothly. Life can become smoother if rights and duties go hand in hand and become complementary to each other. Rights are what we want others to do for us whereas the duties are those acts which we should perform for others. Thus, a right comes with an obligation to show respect for the rights of others. The obligations that accompany rights are in the form of duties. If we have the right to enjoy public facilities like transport or health services, it becomes our duty to allow others to avail the same. If we have the right to freedom, it becomes our duty not to misuse this and harm others
The 42nd Amendment Act added the Fundamental Duties of citizens in 1976.The ten Fundamental Duties (given in Article 51-A of the Constitution) can be classified as either duty towards self, duties concerning the environment, duties towards the State and duties towards the nation.The 86th Constitutional amendment added the 11th Fundamental Duty, which states that every citizen "who is a parent or guardian, to provide opportunities for education to his child or ward between the age of six and fourteen years" in 2002. Citizens have a moral obligation by the Constitution to perform those duties, although non-justifiable, incorporated only with the purpose of promoting patriotism amongcitizens.The DPSP are aids to interpret the Constitution, and more specifically to provide the basis, scope,and extent of the content of a Fundamental Right. To quote again from the Fundamental Rights case:
Fundamental Rights have themselves no fixed content: most of them are empty vessels into which each generation must pour its content in the light of its experience. Restriction, abridgment, curtailment and even abrogation of these rights in circumstances not visualized by the Constitution makers might become necessary; their claim to supremacy or priority is liable to be overborne at stages in the history of the nation by the moral claims embodied in Part IV.
Dr. B.R. Ambedkar while explaining the object underlying the Directive Principles of State Policy observed. The Constitution also wishes to lay down an ideal before those who would be forming the Government. That idea is aneconomic democracy, whereby, so far as I am concerned, I understand to mean one man one vote. By this the main object behind the Directive Principles to achieve the ideal of Economic democracy.
LIMITATIONS ON THE FUNDAMENTAL RIGHTS AND ITS IMPORTANCE-CONSTITUTIONAL PROVISIONS
The guarantee of certain basic human rights is an indispensable requirement of a free society. The purpose is to preserve, for the benefit of the people, their Fundamental Rights against infringement by the institutions created by the Constitution. The framers of the Indian Constitution followed the American model in adopting and incorporating the Fundamental Rights for the people of India. The Constitution, not only secures the Fundamental Rights, but also, provides a speedy and effective remedy for their enforcement.
The form that the limitation clause should take depends on the historical and cultural context of the country in question. In countries with strong democratic institutions and a good record of human rights, open-ended and even vague limitations clauses, which leaves a lot of discretion to legislatures and courts, may be acceptable. In countries where democracy is more fragile, and where there is a recent record of human rights violations, more detailed and specific limitations may be necessary to prevent abuses of power. Democratic values and civil society: In a society where strong and pervasive democratic values are embedded in the history and culture of the society, and where civil society is robust in the defense of rights and liberties,
it is possible that little harm will result from loosely-worded limitation clauses. This is because unnecessary encroachments are likely to be politically resisted by the legislature and by public opinion, at least if these values endure. This puts a premium, on civic education and on the maintenance of democratic values and norms in society at large. On the other hand, in a society with a long history of thedictatorial rule, where authoritarian values predominate, or where civil society is weak, narrower and more explicit limitation clauses may be required to prevent abuse.
The U.S.bill of rights (first ten amendments) only names some rights. The Supreme Court, through the process of judicial review, decides the limitations on these rights. In India, determination of limitations on fundamental rights is not left to judicial interpretation. The Constitution itself contains (clauses 2-6 in Art. 19) such limitations. The limitations contemplated by the Constitution are –
a. Public order,
b. Security of the state and
c. Sovereignty and integrity of India.
In the face of these limitations, the Fundamental Rights guaranteed by the Constitution cannot be said to be absolute. Again, the Indian Constitution is based on the theory of Parliamentary sovereignty and not Constitutional sovereignty, as is the case in the U. S. A. The criticism is hardly justified because the State is not able to guarantee such rights in practice immediately. The enforcement of the Right to Employment, for instance, would not only involve gigantic resources but a complete control of all economic activity of the country by the State. Neither of these factors is available in India, characterized as acountry with limited resources and a mixed economic structure.
Another criticism points out that the restrictions, exceptions, and explanations with which the fundamental rights are hedged around, have the effect of depriving the rights in practices.
One member of the Constituent Assembly suggested with unconcealed sarcasm, that the Fundamental Rights might be more appropriately entitled, “Limitations on Fundamental
Rights”. However, the very circumstances in which our country got freedom emphasized the need to spell out restriction. Another point of criticism is that there is a vast gap between the fundamental rights guaranteed in the Indian Constitution and reality of these rights in India today. However, whenever the state restricts fundamental rights by legislation, the courts have the right to examine whether the limitations imposed are “reasonable or not.” The courts are free to strike down any law imposing anunreasonable restriction on the enjoyment of fundamental rights. The courts in India enjoy a limited degree of judicial review with respect to fundamental rights. Yet, in view of these limitations, some critics argue that the Indian Constitution gives fundamental rights with one hand and takes them away with the other. It should also be pointed out that provision of preventive detention under Art. 22 is a gross violation of the individual liberty under Art. 21.
Consequently, the Parliament may easily tamper with Indian fundamental rights. The capacity of the judiciary to afford protection to the fundamental rights is very limited. The Supreme Court verdict that the Fundamental Rights are not amendable was subsequently reversed. In the Kesavananda Bharati case2, Supreme Court held that the Parliament may amend the entire Constitution. It cannot only alter any basic feature of the Constitution. The processes of amendment given in Art 368 are far easier than the one given in Art 5 of the U.S.
Constitution. Consequently, the Union Parliament with a qualified majority may now easily amend any fundamental right contained in Part III of the Constitution.
Thus, the Constitution contains an elaborate scheme of fundamental rights. But the fundamental rights in India are not absolute. They are hedged by many limitations. Indeed, fundamental rights cannot be absolutely anywhere in the world. Countries differ only in their degree of limitations on fundamental rights.
2(1973) 4 SCC 225
What constitutes a restriction?
1. When a law is impugned as having imposed a restriction upon a fundamental right, what the Court must examine is the substance of the legislation, without being beguiled by the mere appearance, of the legislation. The Legislature cannot disobey the Constitutional prohibitions by employing an indirect method. The legislature power being subject to the fundamental rights, the Legislature cannot indirectly take away or abridge the fundamental rights which it cannot do directly.
2. On the other hand, the effects of the legislation are relevant for this purpose only in so far as they are the direct and inevitable consequences or the effects which could be said to have been in the contemplation of legislature. In other words, Art 19(1) can be invoked only when a law is made directly infringing a fundamental right. The possible, indirect or remote effects of legislation upon any fundamental right cannot be said to constitute a restriction upon that right. Thus, if a law which imposes a valid restriction upon a fundamental right incidentally interferes with the exercise of some other right, it cannot be said to constitute a restriction upon the right.
3. A restraint cannot be said to be a ‘restriction’ within the meaning of Art.19 unless it is
‘imposed’ by law and which the citizen has no option but to obey. Where the restraint is self-imposed in as much as the operation of the law is attracted because of a contract which the citizen is free to enter at his own will or choice, he cannot complain of the unreasonableness of the law.
What is ‘reasonable’ restriction?
1. The determination by the Legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision of the Court’
2. Though the Court starts with the assumption that the legislature is the best judge of what is good for its community by whose suffrage it comes into existence, the ultimate responsibility of determining the reasonableness of the restriction, from the point of view of the interests of public, rests with Court and the Court cannot shirk this solemn duty cast on it by the Constitution.
3. The expression ‘reasonable restriction’ aims to strike a balance between the freedoms guaranteed by any of the sub-clause of Clause (1) of Art. 19 and the social control permitted by any of should not be arbitrary or of an excessive nature beyond what is required in the interests of the public. To be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must not go more than that object.
4. It follows that the reasonableness of a restriction must be determined in an objective manner and from the standpoint of the interest of the public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations. In other words, a law cannot be said to be unreasonable merely because; in each case, it operates harshly, even if the persons affected by petty traders.
5. It is the effect of a law which constitutes the test of its reasonableness; its object, whether good or bad, is immaterial for this purpose. The scheme of the Act should be taken together.
6. The test of reasonableness wherever prescribed should be applied to each case. No set pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter the judicial verdict.
7. The standard of reasonableness must also vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time. Hence what was reasonable at the time of enactment of a law may cease to be so with the change of time and circumstances.
Similarly, a restriction which may be reasonable in relation to one fundamental right may both be reasonable in relation to other rights, though enumerated in the same CL.
(1) of Art.19.
8. In adjudging the validity of a restriction, the Courts must approach it from the point of view of furthering the social interest which it is the purpose of the legislation to the point of view of furthering the social interest which is the purpose of the legislation to
promote, and the situation which presented itself to the legislature when the impugned law was enacted. For the same reason,corresponding laws of other countries, made under different conditions, cannot be referred to for determining the reasonableness of our laws.
9. In judging the reasonableness of a law, the court will necessarily see not only the surrounding circumstances but all contemporaneous legislation passed as part of a single scheme. It is the reasonableness of the restriction and not of the law that must be found out, and if the legislature imposes a restriction by one law but creates countervailing advantages by another law passes as part of the same legislative plan, the courts can take judicial notice of such Acts forming part of the same legislative plan, under which restrictions are imposed by one Act and countervailing advantages are created by another.
10. Restrictions must be reasonable from the substantive as well as procedural standpoints.
It is not possible to formulate an effective test which would enable the Court to pronounce any restriction to be reasonable or unreasonable per se. all the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of the imposition or the mode of putting them into practice.
11. The Constitutional validity of a statute is to be determined based on its provisions and on the ambit of its operation as reasonably construed. If, so judged it passes the test of reasonableness, mere possibility of the powers conferred being abused is no ground for pronouncing it invalid, just as a statute which is otherwise unreasonable cannot be saved by its being administered reasonably. Where the text is capable of being two interpretations, that which would make the restriction reasonable and Constitutional should be adopted by the Court.
Who can impose restrictions under Clause (2) -(6)?The restrictions which may be imposed by any of the authorities who are included in the definition of ‘State’ in Art, 12, who are competent to make a ‘law’ as it is understood in the wider sense referred in Art 13(3)(a), will have to be tested by the permissive limits prescribed in Clause. (2) -(6) of Art 19, e.g.,
restrictions imposed upon the right to use the public highways, including the right to run vehicles over them?
Limitations of the doctrine of equal protection: the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, as the varying needs of different classes of persons often require separate treatment.
The principle does not take away from the State the power of classifying persons for legitimate purposes.
2. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
Differential treatment does not ‘per se” constitute aviolation of Art.14. It denies equal protection only when there is no reasonable basis for the differentiation.
3. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection because it has no application to other persons.
Legislation enacted for the achievement of an object or purpose need not be all embracing. It is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render the legislation which has been enacted in any manner discriminatory and violative of Art.14. No service Rule, E.G., can satisfy each employee; its reasonableness should be considered from the standpoint of justice to most employees.
4. Article 14, does not prevent the Legislature from introducing a reform gradually at first applying the legislation to some of the institutions or objects having common features or areas only, according to the exigencies of the situation.
The language of Clause (2) to (6) it is clear that the restrictions referred to in these clauses can be imposed only by law, including, of course, intra vires, subordinate legislation. But without
legislative authority, the Executive cannot impose any restriction upon any of the fundamental rights guaranteed by Art.19 (1).
(i) There cannot be any such thing as absolute or uncontrolled liberty wholly free 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 to the governing authority of the country to be essential to the safety, health, peace, general order and morale of the community. Ordinarily, every man has the liberty to order his life as he pleases, to say what he will to go where he will, follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance 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 in 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.
(ii) Whether any law has, in fact, transgressed the limitations specified in Clause (2) to (6) of Art.19. is to be ascertained by the Court and if in its view the restrictions imposed by the law are greater than what is permitted by Clause (2) to (6) whichever is applicable, the court will declare the same to be unConstitutional and therefore, void under Art.13.
(iii) To be valid, a limitation must comply with the following conditions- a) It must be imposed by law.
b) Such law must be valid
c) The restriction imposed by the law must be ‘reasonable’ except in cases coming under sub Clause 9(ii) of Cl (6).
d) The restriction must be proximately related to any of the grounds specified in the limitation Clause (2) to (6), which may be relevant to the fundamental right in question.
e) Restrictions in the interests of public order: 1. This ground was introduced by the Constitution (First Amendment) Act,1951, to meet the situation arising from the Supreme court decision in RomeshThappar’s case that ordinary or local breaches of public order were no grounds for restricting the freedom of speech guaranteed by the Constitution. Following this decision, it was held in some cases that incitement to individual murder or promoting disaffection amongst classes did not tend to undermine the security of the State and was not, accordingly, punishable under the Constitution.
f) It was to override the above judicial decisions that the ground ‘public order’ was inserted by the Constitution (1st Amendment) Act.
g) After this amendment, the Supreme Court itself has in State of Bihar V.
Shailabala, explained its decision in RomeshThappar’s Case, holding that individual crime of violence like murder would undermine the ‘security of the State’
JUDICIAL CONTRIBUTION TOWARDS IMPOSING LIMITATIONS ON FUNDAMENTAL RIGHTS The Judicial attitude has undergone atransformation where courts are very active to uphold the fundamental rights enshrined in the Constitutionby interpreting the provisions of Part IV i.e. Directive Principles of State policy. Initially, the courts adopted a strict and literal legal position in interpreting part III with part IV of the Constitution which is reflected in State of Madras V/S ChampakamDorairajan3. It
was half in thecase of conflict between part –III and part –IV the fundamental rights will prevail.
During time, change came over the judicial attitude as the apex court views the interplay between part III and part IV in a different manner from that of ChampakamDorairajan’s case and held that there is a good deal of value for directive principles of state policy from legal point of view and started to harmonize between the two parts of Constitution. The author has tried to show core area of interaction between Part III and Part IV in the above paragraphs of
3AIR 1951 SC 226
this article. In the recent decisions of the apex and high courts, there has been a change in trend by making a harmonious construction between Part III and Part IV of the Constitution making directive principles of state policy justifiable and enforceable on par with fundamental rights of the Constitution.
Fortunately, explicitly and through the Fifth, Ninth, and Fourteenth Amendments, the USA Constitution grants all fundamental rights to all people. Since Fundamental Rights are meaningless if they are not enforced, the right to have Fundamental Rights enforced is a Fundamental Right. If violations of fundamental rights by private people are not resolved, then fundamental rights are denied. Therefore, those whose fundamental rights have been violated (by a government or a private person) have a Constitutional right to have their complaint properly considered in an appropriate and unbiased court in a timely way. For the consideration to be proper, it must include the right to public trial (all the evidence the government uses must be public), the right to present relevant evidence, and the right of consensual assistance of counsel of one's choosing. The court shall grant all necessary injunctions and remedies to preserve all Fundamental Rights. The complaint may be brought by a different person than the one directly injured when the one injured cannot properly bring such complaint (if the victim is denied freedom of speech or the victim is a child or mentally disabled or dead or tortured). Otherwise, fundamental rights would not be preserved. The right to some physical safety is, to some extent, a fundamental right sincewithout physical safety, fundamental rights are likely to be denied. Thus, the governmentsmust take certain steps to protect the safety of the people. Discriminatory enforcement of laws can also be remedied by thecourt.
Those include individual rights common to most liberal democracies, incorporated in the fundamental law of the land, enforceable in a court of law. Violations of those rights result in punishments as prescribed in the Indian Penal Code, subject to thediscretion of the judiciary.
Neither absolute nor immune from Constitutional amendments, the rights have been aimed at overturning the inequalities of pre-independence social practices. Specifically, they resulted in
abolishment of untouchability and prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They forbid human trafficking and unfree labor. They protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and administer their own educational institutions. Fundamental Rights primarily protect individuals from any arbitrary State actions, but individuals may have legal action taken against them for violation of fundamental rights. For instance, the Constitution abolishes untouchability and prohibits begar. Those provisions act as a check both on State action and actions of private individuals. Fundamental Rights have a relative nature, subject to reasonable restrictions as necessary for the protection of national interest. In the Kesavananda Bharati vs.
State of Kerala case, the Supreme Court ruled that all provisions of the Constitution, including Fundamental Rights, can be amended. The Parliament must preserve the basic structure of the Constitution like secularism, democracy, federalism, separation of powers. Often called the
"Basic structure doctrine," that decision has taken has become widely regarded as an important part of Indian history. In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the doctrine's importance as superior to any parliamentary legislation. According to the verdict, no act of parliament can be considered a law if it violated the basic structure of the Constitution. This landmark guarantee of Fundamental Rights was regarded as a unique example of judicial independence in preserving the sanctity of Fundamental Rights.
The effectiveness of judicial institutions: Are judges to be trusted to interpret limitation clauses and to develop them in ways that do not defeat the spirit of Constitutional rights? If the courts have a long tradition of respecting rights and of independence from political pressure, they might be relied upon to interpret very general limitation clauses and to define terms such as ‘necessary and reasonable in a democratic society’ in ways that support rights. In a country emerging from authoritarian rule, however, or where courts have historically been deferential to the executive, a more tightly specified limitation clause is likely to be required to prevent abuses. Legitimacy and public perception: There are also questions of legitimacy to consider: do judges have the legitimacy, in the eyes of the public, to develop their own interpretations of open-ended limitation clauses? If not, more specific clauses that more closely bind and instruct the judiciary may be required. If the judiciary itself develops limitations through case law with
minimal or no Constitutional or legislative guidance, there is a possibility that this may create friction with the executive or legislative majority that has a different vision of limitations. This can be quite harmful to a new democracy where courts are building up institutional legitimacy to have their decisions accepted. This becomes all the more important since, in new democracies, it is often the courts, and not the legislature, that assumes a disproportionate role in implementing vague Constitutional standards.
CONCLUSION
The Fundamental Rights can only be altered by a Constitutional amendment; hence their inclusion serves as a check on the executive branch, the Parliament, and state legislatures. The imposition of a state of emergency may lead to a temporary suspension of the rights conferred by Article 19 (including freedoms of speech, assembly, and movement, etc.) to preserve national security and public order. The President can, by order, suspend the right to Constitutional remedies as well.Individual rights are matters of principle and are to be distinguished from the collective goals the matters of policy that would make the community as a whole better off. Appeals to “policy” are articulations of “a standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community”. Policies are contrasted with “principles”, which are standards that are to be observed, “because it is a requirement of justice or fairness or some other dimension of morality”. In short, “principles are propositions that describe rights: policies are propositions that describe goals.”
Fundamental rights have been described as rights which are inalienable and guaranteed to every person. They have also been defined as “rights which stand above the ordinary laws of the land and which in fact are antecedent to the political society itself”. One of the most common features of contemporary fundamental rights is the inclusion of one or more limitations clauses. In turn, the use of limitations clauses has given rise to adjudicative structures that at least formally sever the definition of a right from its limitation. Fundamental rights drafted in such a way are often thought of as an advance over the contemporary sociological model, in which reasonable limits are inherent in the conception of the Constitutional rights themselves. In this group project, we intend to argue the contrary; there
is no justification for the two-stage division between (1) the definition of legal right and determination of whether the infringement of a right is nevertheless ultimately justified. We put forward that, despite the proliferation of two-stage concept of fundamental rights the dominant interpretation of such bills of rights creates unnecessary interpretative difficulties and threatens to distort rights adjudication. The concept concerns about theerosion of parliamentary sovereignty with the grant of unlimited, absolute rights, and to provide the judiciary with some guidance for interpreting rights. When a government (or another party) contends that state action limiting a right is justified, it is arguing that notwithstanding an intermediate finding that there has been a right violation, there are nevertheless.
Freedoms are subject to restrictions on grounds stated in Clauses (2)-(6) under Article 19. The restrictions are subject to their being reasonable. The word ‘reasonable’ is nowhere defined in Constitution. It means desirable balance in freedom (individual interests) and restrictions (social interests). The enjoyment freedom cannot be arbitrary, excessive, hence unreasonable restrictions, cannot abridged or take away fundamental freedoms. Both must exist, the man and the society, the freedom and social control. None can dominate the other, perfect balance means reasonableness. The substantive law must be reasonable; it must be based on intelligible differentia. It must have nexus with theobject sought to be achieved. The individual complaining invasion of afundamental right must prove invasion and that the right he/she is claiming to be invaded is fundamental and that he is acitizen of India.
