What we need to guard

Fundamental rights are no gifts of the state, the Constitution only confirms their existence.

Written by Soli J. Sorabjee | Updated: January 12, 2017 12:01 am
fundamental rights, constitutin, Constituent Assembly, indian constitution, human rights, us supreme court, bill of rights, supreme court, freedom of speech, freedom of expression, PIL, indian express news, india news, indian express opinion Our Supreme Court has also deduced fundamental rights which are not specifically mentioned in the Chapter on Fundamental Rights on the principle that certain unarticulated rights are implicit in the enumerated guarantees. (Representational image)

Our freedom fighters and members of the Constituent Assembly who drafted free India’s Constitution attached great importance to fundamental rights. They did not subscribe to the fallacy that fundamental rights are a gift from the state to its citizens. They rightly believed that individuals possess basic human rights independently of any Constitution by reason of the fact that they are members of the human family. A Constitution does not “confer” fundamental rights. It confirms their existence and accords them protection. That is the rationale of fundamental rights.

A controversial issue is whether a court can deduce additional fundamental rights which are not expressly set out in the Constitution. The US Supreme Court has deduced rights of privacy and parenthood on the reasoning that the specific guarantees in the Bill of Rights “have penumbras formed by emanations from those guarantees that help give them life and substance”. A similar approach has been adopted by Irish courts in the Republic of Ireland.

Our Supreme Court has also deduced fundamental rights which are not specifically mentioned in the Chapter on Fundamental Rights on the principle that certain unarticulated rights are implicit in the enumerated guarantees. For example, freedom of the press has been deduced on the ground that it is implicit in the guarantee of freedom of speech and expression. The right to travel abroad and return to one’s country has been spelt out from the expression “personal liberty” in Article 21 of the Constitution. The Court has also ruled that right to education until the age of 14 is a fundamental right emanating from the all pervasive Article 21.

No fundamental right is or can be absolute. Every Constitution provides for restriction of fundamental rights in general public interest.

However, the restriction imposed should not be excessive or disproportionate. In determining this issue, judicial subjectivity is likely to play a part. But that is no ground for declining judicial review. The Supreme Court, in the celebrated State of Madras v. V.G. Rao decided in March 1952, acknowledged that “it is inevitable that the social philosophy and the scale of values of the judges participating in the decision would play an important part”, but emphasised that if the impugned legislation violated a fundamental right it would have to be struck down because as regards “fundamental rights”, the Court has been assigned the role of a sentinel on the “qui vive”.

A well settled principle of constitutional adjudication is to construe a statute in a manner that will obviate constitutional challenge. Courts in the US have acted on this principle. Our Supreme Court has also adopted the same principle and, in order to sustain the constitutionality of a statute, adopted the judicial technique of reading down or reading into the impugned provision certain words.

Utmost judicial vigilance is necessary with regard to restraints on the fundamental right of freedom of expression and personal liberty, which are the favourite targets of attack by authoritarian regimes because their suppression enables the regime to neutralise the dissenter, jettison accountability and ensure its continuance.

Serious violations of fundamental rights occur during emergencies. The usual facile excuse offered is that fundamental rights are required to be suspended temporarily in order that the nation may survive. Actual experience establishes that those to whom supreme authority has been conferred are reluctant to give it up. Temporary dictatorship often becomes permanent tyranny because when the safeguards of the Constitution are surrendered to the rulers the means of getting them back also get surrendered.

A mere declaration of invalidity of a detention order or seizure of the press or revocation of a licence to carry on a business would not provide a meaningful remedy to a person whose fundamental rights have been violated without issuing appropriate directions for compensation for breach of constitutional safeguard.

A notable achievement in the protection and promotion of fundamental rights has been by development of Public Interest Litigation (PIL).

Thanks to PIL, enjoyment of fundamental rights has become a living reality, to some extent, for at least some illiterate, indigent and exploited segments in our society. Numerous prisoners languishing in jails inordinately awaiting trial have been released; persons treated like “serfs” and held in bondage have secured freedom and have been rehabilitated; conditions of inmates in care homes and in asylums for the insane; and of workers in stone quarries and brick kilns, have been ameliorated. Judicial review in PIL is a delicate exercise and can also cause problems and a cynic may well question its utility. The answer is that it has a salutary effect on administration which knows that it has to conform to the discipline of fundamental rights. Above all, the fundamental rights part in the Constitution is a salutary reminder that the powers of the state are not unlimited and that human personality is priceless. We need these reminders constantly.

The writer is a former attorney general for India

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  1. J
    Jj
    Jan 12, 2017 at 2:16 pm
    Another abstract and elitist nonsense article. People are sick and tired of black coat hoodlums called "eminent" lawyers to game the system. Zero contibution to reform the judiciary and speedy justice delivery. People will give a d*mn to this fancy named lawyer and his ilk.
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    1. H
      Hunter Vos
      Jan 12, 2017 at 2:20 pm
      This Parsi has proven to be a disgrace. What Muslims did to such people to show that rights are never Sui generis was apparently well deserved.
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      1. M
        Mirage
        Jan 12, 2017 at 12:42 am
        Yes true, just like in the past when royalty also said the same thing, a little difference but meaning is same. KING IS GOD
        Reply
        1. K
          K SHESHU
          Jan 12, 2017 at 4:24 pm
          Fuundemental rights are natural rights to every human being. They are incorporated in consution just to legalize
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          1. J
            Joe
            Jan 12, 2017 at 6:17 am
            It's clear from your language that you are actually the garbage.
            Reply
            1. a
              a_D
              Jan 12, 2017 at 3:41 pm
              a good reminder of what should be obvious---gt; Fundamental Rights are "Rights" and not kind-hearted, largess and gift signifying his magnanimity and benevolence.... as the Hindu MahaSamraat "ruling" India these days deems it to be.......although given hi elephantine ego and pea-nut sized intellect ....he is unlikely to understand this not so subtle a diffrence
              Reply
              1. C
                chattoo
                Jan 12, 2017 at 5:31 am
                That infamous Jabalpur judgement is still on the statute books. Please file a PIL to get it removed .
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                1. B
                  Bastele Jhakday
                  Jan 12, 2017 at 6:16 pm
                  It needs to stay not for the majority judgment which was flawed , but for the dissenting judement delivered by Justice Khanna who upheld right to life and liberty.
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                  1. B
                    Bastele Jhakday
                    Jan 12, 2017 at 6:20 pm
                    Well written article. The state does not gifts the 'rights' to the citizens. Neither does the Consution 'confers' them. It only 'confirms' , validate and guarantee their existence. The fundamental rights in our Consution are derived from the UDHR charter 1948. So these are basic human Rights. These rights are born with the birth of an individual and are necessary for a dignified existence.
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                    1. G
                      gc
                      Jan 12, 2017 at 8:43 pm
                      Fundamental rights are indeed gift of the state,given or denied through the consution.Various countries give and withhold various fundamental rights according to their own consution e.g;in middle east,you don't have fundamental right to freely practice your religion unless it is state religion those countries consution does not give fundamental right what India's consution gives.Does that mean that people in middle east don't have fundamental right to freely practice religion?They have, if it is a universal human right.But they are not given that right because of their country's consution.Therefore,whatever rights you have in India,be thankful to India for it.Don't take generosity of India and it's Hindu majority for granted.
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                      1. G
                        gc
                        Jan 12, 2017 at 8:53 am
                        What a sched up article, putting various arguments loosely together to make a point but failing to make a point.These days I wonder,, thata lot of 'big names' of yesteryear's were just that, big names,promoted by politicians of the same kind,who themselves were just that, big names.
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                          Gopal
                          Jan 12, 2017 at 6:12 am
                          Utter nonsense. We have a legal system that is an old boys cabal. The rulings are arbitrary and often inconsistent. There is no distinction between the law and the consution. He quotes US and Irish judgments but fails to note how much restraint those courts exercise. Even at the highest levels, docket manition is routine and corruption is endemic.
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                          1. H
                            Haria
                            Jan 12, 2017 at 11:34 pm
                            Odd thing is to see Parsis who were kicked out of every place Muslims occupied joining Chrislamists in claiming rights are 'natural' and not because they were expressly granted these rights. It is one thing for Chrislamists to be naturally ungrateful, but Parsis??
                            Reply
                            1. R
                              Rishi Raj
                              Jan 12, 2017 at 6:45 am
                              Actually, consution is just an expression of the people's will. And, people's will is not infallible. Therefore, justice and equity are above any consution or law.
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                              1. M
                                Murthy
                                Jan 12, 2017 at 3:42 am
                                This type of academic hair-splitting went on for decades since 1951. As a social blogger, most of my posts are deleted under the guise of "moderation". Media which claims 100 percent free speech denies bloggers free speech in their forums. Structure of Public debates in India are manited by the Media and Bollywood. Millions of Indians should be as concerned about these PRACTICAL manifestations of freedoms and not merely in the theory of fundamental rights.
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                                1. M
                                  manikantan
                                  Jan 12, 2017 at 6:57 am
                                  So filthy like your leaders. Come what may we will defend our right to expressions. Hands off to IE and great Soli Sorabjee. Leaders should be ashamed to use paid trolls to negate the narrative. it is India, it will stand up to its liberties.
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                                  1. M
                                    manikantan
                                    Jan 12, 2017 at 6:58 am
                                    The width of the brain are so small they cannot understand anything beyond U vs I
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                                    1. M
                                      Mahender Goriganti
                                      Jan 12, 2017 at 6:47 pm
                                      In any democracy human fundamental are based on laws of equality (in theory) that is how it differs from feudal, communist and other autocratic systems. 'Freedom of speech to press or an individual' is different from fundamental rights. It is a derivative so are many other rights like trade, political, religious and other practices that involves others in the communities. Neither are exclusive; as 'no society' exists without restrictions how it affects others and the society at large and smooth functioning. There is where the governmental over site role comes into play checks and balances of the same endowed with justice system.
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                                      1. M
                                        Mohammed Yunus
                                        Jan 12, 2017 at 12:57 pm
                                        Poppyseed y is absolutely missed off since 2014. It is the high-handed policy of Modi otherwise these guys are capable of anything. Read history.
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                                        1. H
                                          heena
                                          Jan 12, 2017 at 5:26 am
                                          Respected sir, Fundamental right shall not be come in the way of human life and peaceful living. If not we do not deserve consution at all.
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                                            Parth Garg
                                            Jan 12, 2017 at 8:24 am
                                            The restriction of fundamental rights in the name of general public interest is often misused by the State as was the case during declared Emergency then and an undeclared emergency now. .
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