Inalienable rights

The National Commission to Review the Working of the Constitution has recognised the need to strengthen fundamental rights. But has it achie...

The National Commission to Review the Working of the Constitution has recognised the need to strengthen fundamental rights. But has it achieved its purpose in the context of protecting them, particularly in an emergency?

When an emergency is declared under Article 352, the Indian Constitution grants the executive colossal powers, including deprivation of all fundamental rights. Under Article 358, the enforcement of rights under Article 19, such as freedom of speech and expression, the right to form association or unions and move freely throughout India, are immediately suspended. Article 359 empowers the issuance of a presidential order suspending any or all of the fundamental rights.

When these articles came for approval before the Constituent Assembly, Article 359 evoked scathing criticism. H.V. Kamath, Nazir ud-din-Ahemad, K.T. Shaha and Mahavir Tyagi vehemently opposed the suspension of Article 32 which guarantees the right to approach the Supreme Court for violation of fundamental rights. Mahavir Tyagi made the prophetic statement that ‘‘If the executive was given the power to suspend all fundamental rights, future governments might misuse the power, ride roughshod over the judiciary and there would be the law of the jungle’’. Countering the argument that peace and order had to be preserved in the interest of the country’s security, Kamath retorted, ‘‘But this peace may be of the graveyard — the void of desert. If that is the peace this Drafting Committee’s wise men have in mind, I would rather die than live with such peaceful situation.’’

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It took the gross abuse of emergency powers in 1975 and the establishment of a dictatorship by Indira Gandhi for the people to realise the need to amend the emergency provisions of the Constitution. The Janata Government passed the 44th Constitution Amendment in 1979.

To put the right to life and liberty on a more secure footing, this amendment debarred suspension of Art. 21 by amending Art. 359. However, this amendment is not yet brought in force.

The forewarnings expressed in the Constituent Assembly, the experience of Emergency, some remedial steps taken by the 44th Constitution Amendment and the Supreme Court’s judgements provide a framework for assessing the recommendations of the Constitution Commission. It rightly recommended non-derogation of five fundamental rights, namely, abolishment of untouchability; prohibition of traffic in human beings and forced labour; prohibition of employment of children in hazardous jobs; freedom of religion and the right to approach the Supreme Court for enforcement of rights.

But the Commission should have also seen that none of the freedoms mentioned in Art. 19 are absolute but are subject to reasonable restriction by law in public interest. Restrictions can be placed in the interest of sovereignty and integrity of India. If these restrictions are added to other freedoms mentioned therein, the legislature could make stringent laws curtailing these freedoms during the emergency. The Commission should have made Art. 19 also non-derogable and empowered Parliament rather than the executive to suspend fundamental rights.

The writer is a member, Law Commission of India