The chapter on Fundamental Rights in the Constitution has been the subject of criticism both in India and outside, ever since its adoption. Broadly classified, the critics are of three types.
First, there are those who think that the Constitution does not embody fundamental rights in reality but only an apology for them. According to them, many fundamental rights such as the right to work, education etc., which ought to have found a place in the chapter, have been ignored.
Secondly, there are those who think that the spirit of the whole chapter and much of its substance are taken away by the extraordinary provisions such as preventive detention, suspension of the right to constitutional remedies, etc. These critics allege that what has been given by one hand has been taken away by the other.
Thirdly, there are those who argue that even those rights that are attempted to be safeguarded are hedged in with so many exceptions, explanations and qualifications that it is difficult to understand what exactly is available to the individual by way of fundamental rights.
One of these critics sarcastically suggested that the chapter on Fundamental Rights should be renamed as “Limitations on Fundamental Rights, or Fundamental Rights and Limitations thereon”.
It is true that the right to work, the right to rest and leisure, material security, etc., is not included in the chapter on Fundamental Rights. The reason why they have not been included is not far to seek. Every one of the rights in this chapter is a justiciable right.
For every violation of these rights, there is a judicial remedy, which makes the right a practical proposition. On the other hand, take, for example, the right to education: “Every child under the age of fourteen shall have the right to free education”, is a positive right. To translate it into reality, the State must provide immediately thousands of schools all over the country.
Was it possible under the conditions prevailing in India at the time of the adoption of the Constitution to have this right realised in practice? Needless to say, it was impossible. It is a right which can be made available to everyone only in the course of decades.
This is why the right to education has been included in the chapter on Directive Principles of State Policy and a time limit of ten years was fixed. However, the Eighty-sixth Amendment of the Constitution in 2002 has made primary education a Fundamental Right.
The difference between Fundamental Rights and Directive Principles is that the former are justiciable rights rights that can be enforced by a court of law while the latter are non-justiciable rights. The fact that certain rights have been made non-justiciable does not make them useless or meaningless as has been alleged by some critics.
The distinction can be understood only in the light of the evolution of theory and practice relating to fundamental rights in the nineteenth and twentieth centuries.
Consequent upon the industrial revolution in Europe, the labouring classes became politically conscious and realised that the conditions which they required for the development of their personality, those fulfillments they demanded, were different from those which the middle classes of the seventeenth and eighteenth centuries required and demanded.
What the working classes wanted were better editions of work in the factories: better housing, better sanitation, medical relief and social security, hey wanted education for their children. They stood for more equitable distribution of wealth and higher and heavier taxation of the wealthy.
The right to freedom of expression and religion, etc., demanded by the middle classes called for negative action by the State. These rights could become real when governments abstained from doing certain things such as imposing restrictions on the Press or dictating religion to its subjects.
But the conditions of good life demanded by the labourers called for positive action by the State such as factory legislation, compulsory and free education, old age pensions, and unemployment relief and so on. This is the difference between the right demanded during the Seventeenth and eighteenth centuries and those demanded during the nineteenth and the twentieth centuries.
Those who question the utility of non-justiciable rights do not appreciate this distinction. The right to employment or education is not rights which can be safeguarded by courts of law. When they start safeguarding such rights they will cease to be courts. These are rights which ought to come within the scope of legislative policy.
They are not appropriate for judicial action. The remedy for them lies in the legislature, which is elected on the basis of adult franchise. In a democracy based upon adult suffrage, legislatures are bound to take action and see that such rights remain not mere platitude on paper but as effective as justiciable rights.
The provisions dealing with preventive detention and the suspension of constitutional remedies are not easy to defend. Nevertheless, there are considerations which can be urged in their favour. It has already been pointed out that restrictions on individual freedom are necessary in the interests of society.
The framers of the Constitution were not unaware of the dangers to the existence and safety of the Republic they were establishing. They were giving it shape at a time when the country was passing through extraordinary stress and strain.
There were groups and parties in India who made no secret of their opposition to the new democratic order that was emerging in the country. The assassination of Gandhiji was itself the most eloquent indication of this.
Where organised groups swear by force and violence to achieve their objective which strikes at the very roots of democratic institutions no Constitution can be accused of whittling down fundamental rights if a freely elected Parliament is given power to enact a law of preventive detention. In the opinion of a British writer on Fundamental Rights in India, preventive detention
“is an administrative necessity in India, and likely to cause less human misery than might result from likely alternative measures to deal with persons who cannot be successfully prosecuted for their activities, though they are a menace to public security and order.
The danger and the consequences of public disturbances in India are too grave to justify any Indian Government in giving the tub-thumping demagogue, and the conspiratorial member of a political cell the freedom he enjoys in Britain.”
It goes to the credit of democratic India that, in spite of the extremely trying circumstances under which she had been functioning during the first two decades, the number of persons taken into custody under the preventive detention laws has been comparatively small in relation to the gigantic proportions of the country, both in area and population and in the magnitude of the problems confronting it.
During the third decade, however, and especially as a result of the declaration of internal emergency in 1975, unlike in the past, a large number of persons were taken into custody.
While this was assailed by the opposition as politically motivated, the spokesmen of the Government justified it to protect the country from chaos and anarchy which were to result from the unconstitutional and violent activities of a number of political parties and groups. Fortunately the situation did not last long.
With the announcement of Parliamentary elections in January 1977 the Central Government issued instruction to all the States to release political prisoners held under the Maintenance of Internal Security Act and allow all forms of political activity normally undertaken, especially during election time.
The election results went against the ruling Congress Party and as a result, the emergency was fully withdrawn and the fundamental rights were fully restored. In 1978 the Maintenance of Internal Security Act was abolished.
As to the question of suspension of constitutional remedies, so far there has been no occasion for it in spite of the declaration of national emergency on four occasions, in 1962, 1965, 1971 and 1975.
The operation of several other fundamental rights, however, was seriously affected by the Proclamation of Emergency by the President in 1962 and later in 1965, 1971 and 1975.
The Proclamation was followed by the Defence of India Act, investing the Government with vast powers over the liberty the citizen. In fact, Article 358 of the Constitution provides for the automatic suspension of the six freedoms such as the right to freedom of speech, assembly, association, movement, etc., embodied in Article 19 of the Constitution as a result of the proclamation.
Article 359 enables the President by Article to suspend the right to constitutional remedies provided under Article 32. Since there is no provision for the automatic suspension of any other fundamental right, orders were issued soon after the Proclamation suspending the enforcement of Articlei4 (equality before the law), Article 21 (right to life and personal liberty), and Article 22 (protection against unlawful arrest and detention) in so far only as they might affect the constitutionality of the Defence of India Act, the Rules made under it and orders made in pursuance of them.
In addition to the already existent powers under the Preventive Detention Act, 1 the Defence of India Act provides for the detention of any person “whom the authority suspects on grounds appearing to that authority to be reasonable, of being of hostile origin, of having acted, acting, being about to act or being likely to act in manner prejudicial to the defense of India and civil defense.
The security of lie the State, the public safety or interest, the maintenance of public order, India’s relations with foreign States, the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations.”
The Government may also impose restrictions, short of detention, regulating the conduct any such particular matter as may be specified in the order. Restrictions may also be imposed in respect of employment, association or communication with other persons or against propagation of opinion.
Suffice it to say that these are by any standard extraordinary powers to be exercised by the executive under a democratic system of government. This is particularly so when there is no provision for an independent review of orders made under the Act.
Under the cloak of emergency these powers could be abused by an unscrupulous and power-seeking party in office to destroy for ever the cherished ideals of the Constitution. If the emergency is unnecessarily prolonged or the powers under it are misused for political purposes, then it will sound the death-knell of the democratic character of the Constitution.
It is true, as Lord Justice Scrutton once observed that a war could not be conducted on the principles of the Magna Carta or those of the Sermon on the Mount. Fundamental rights are bound to be curtailed during a period of grave national emergency in the interests of the security of the State.
But the term “security” of the State has to be properly interpreted and it should not be equated with the “security of the government” of the day. The extent of regulation of individual liberty even during a war emergency should conform to the spirit of Lord Atkin’s celebrated dictum: “Amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace.”
The third line of criticism that the fundamental rights are couched in difficult language, that they are beyond the comprehension of an ordinary reader of the Constitution, that the rights are hedged in with numerous exceptions and qualifications, is justified.
It is a feature that runs through the entire Constitution which made a critic remark that it is not a Constitution but a constitutional treatise, compared with the Indian Fundamental Rights; a similar document like the American Bill of Rights is a marvel of clarity and conciseness.
The fathers of the American Constitution reduced their ideas of fundamental liberties to a few simple propositions and made them part of their Constitution. The rest of the job was left trustfully to the Judges.
The Constituent Assembly, on the contrary, instead of leaving it to the courts to read into the law the necessary exceptions and limitations, sought to express them in a compendious form in the Constitution itself. It is also well to remember in this connection that the difficulty of understanding the different constitutional provisions is not actually a problem of language alone.
It also arises out of the unfamiliarity of a new constitutional system that requires close study and deep understanding which alone can make it a part of the common, national heritage A close study of the provisions of the chapter on Fundamental Rights will show that it is not the product of a consistent philosophy.
Such philosophy was perhaps possible a century ago and in countries characterised by homogeneity of language, religion and culture. But India presented something totally different, complex, heterogeneous and diversified.
Naturally, the Constitution was bound to reflect it; and the chapter on Fundamental Rights is its most powerful mirror. There is some justification in the following words of a critic of this chapter:
“A thread of nineteenth century liberalism runs through it; there are consequences of the political problems of Britain in it; there are relics of the bitter experience in opposition to British rule; and there is evidence of a desire to reform some of the social institutions which time and circumstances have developed in India.
The result is a series of complex formulae, in twenty-four articles, some of them lengthy, which must become the basis of a vast and complicated case law.”
It is generally true that, in the ultimate analysis, fundamental rights are not protected by courts of law but by public opinion. But the effectiveness of public opinion as the guardian of fundamental rights depends upon how well organised and effective is public opinion in a country. India is vast in size and has a huge population.
It is also a poor and backward country. Education and civic consciousness are yet to reach a commendable level in India. How difficult it is to organise effective public opinion in a country like India needs no special emphasis.
In the absence of really effective public opinion, it would have been suicidal to leave the protection of fundamental liberties to the discretion of executive authorities or the caprices of legislative majorities. Even in England it took centuries for public opinion to assert itself as a champion of human rights.
It is this that adds to the importance of incorporating the right to constitutional remedies as an integral part of the chapter on Fundamental Rights. Nevertheless, there is the utmost need for the building up of vigorous, effective public opinion in India as an important additional safeguard to fundamental rights. Eternal vigilance is the price of liberty.
By no means was it an easy task for the Constituent Assembly to draw up a simple list of fundamental rights. What has been finally adopted is the product of difficult compromise. It is still too early to pronounce a final verdict on the wisdom of the Assembly. One thing, however, is already clear.
The Supreme Court of India has been deciding more cases dealing with fundamental rights than those connected with the rest of the Constitution. The Court’s decisions as the guardian of these rights have had, indeed, a salutary influence both on the executive and the legislature against whom those rights have been primarily guaranteed.
The Court has been prompt and forthright in curbing legislative exuberance by declaring those enactments of Parliament and the State Legislatures invalid whenever it found them transgressing the defined limits within which they are permitted to impose reasonable limitations on the freedom of the individual.
Similarly, it has successfully prevented on many occasions the excess and abuse of administrative power and the illegal and high-handed action of the executive. Further, every time a fundamental right of the individual has been upheld against the executive or the legislature, it has had wholesome and far-reaching repercussions.
Despite the fact that some of the rights have been substantially modified in scope as a result of constitutional amendments, the chapter on Fundamental Rights, taken as a whole remains a formidable bulwark of individual liberty, a code of public conduct and a strong and sustaining basis of Indian democracy.
Nevertheless, a word of caution seems to be appropriate here. The fact that a remedy is available from the High Court or the Supreme Court for the violation of every fundamental right does not mean in fact that it is available to all.
This is because of the heavy cost involved in the process of moving the court. Effective enforcement of those rights from the point of view of the ordinary Indian citizen is possible only when justice becomes cheap, speedy and simple.