The conflict between man and the State is as old as human history itself. Although attempts have been made for centuries to bring about proper adjustment between the competing claims of the State and the individual, the solution seems to be still far off. This is primarily because of the dynamic nature of human society where old values, ideas and forces constantly yield ground to new ones. It is obvious that if individuals are allowed to have absolute freedom of speech and action, the result would be chaos, ruin and anarchy. On the other hand, if the State has absolute power to determine the extent of personal liberty, the result would be tyranny. Hence, the eternal problem that faced statesmen and political scientists was how to make a proper adjustment between individual freedom and social control, the need for protecting personal liberty against governmental power and that of limiting personal liberty by governmental power.
This problem assumes an extreme dimension under a democratic system of government. For, the success or failure of a democracy depends largely on the extent to which civil liberties are enjoyed by the citizens in general. A democracy aims at the maximum development of the individual. The personality of the individual is inseparably bound with his liberty. Only a free society can assure the all-round progress of its members; this ultimately helps the advancement of human welfare. Therefore, every democracy pays special attention to securing this bare objective to the maximum extent without, at the same time, endangering the security of the State itself. A common device that is adopted by most of them for this purpose is to incorporate a list of fundamental rights in their constitutions and guarantee them against violation by executive and legislative authorities.
The theory of fundamental rights limits the government’s power. It aims at preventing the executive and the legislature, either separately or together, from becoming totalitarian. And in doing so, it provides the individual citizen an opportunity for self-development. Constitutions that contain no fundamental rights soon degenerate into instruments of totalitarian rule. Hence, the philosophy underlying the fundamental rights is that constitutional limitations on the powers of the government are the only way of ensuring the survival of basic human freedoms.
Man, being what he is, cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights. In the famous words of Justice Jackson of the Supreme Court of the United States, “Our protection against all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in constitutional limitations on their powers.”
Why Guaranteed Rights ?
What is the purpose of guaranteed fundamental rights? Their very purpose is to withdraw certain subjects from the changing pattern of political controversy, to place them beyond the reach of a majority in a legislature and officials in the government and to establish them as legal principles to be applied by the courts. For, if the danger of personal rule by despotic rulers has more or less disappeared as a result of representative institutions coming into their own,
that from legislative interference has correspondingly increased because of the high-handed manner in which majorities might manage affairs in the legislature. A dominant group of legislators could pass any discriminatory or unjust legislation and prejudice the interests of considerable sections of the people. This meant, in reality, the substitution of one kind of tyranny by another, replacement of personal rule of the monarch by the tyranny of a legislative majority. One’s right to life, liberty and property; to free speech and free expression, freedom of worship and assembly, and other fundamental rights are not subject to be submitted to vote. They should not depend on the outcome of elections.
When legislatures were prohibited from encroaching upon certain rights through constitutional safeguards, the protection of these rights was achieved against the arbitrary conduct of both the executive and the legislature. When an independent judiciary was made the guardian of these rights by the Constitution itself, the process of the protection of fundamental rights was complete and the enjoyment of these rights by all, irrespective of wealth or social status, race or religious belief, was fully ensured. Herein lies the importance of fundamental rights. The United States has led many countries in this respect. Today, the idea of a list of written rights as an integral part of a new Constitution has been generally accepted. Even the British, who have been allergic to the idea of guaranteed rights, do not seriously contest the wisdom of this arrangement and are prepared to concede its value, at least to a limited extent.
The Indian Demand for Fundamental Rights
The idea of incorporating a list of fundamental rights in the nascent Constitution of India had excited the imagination of almost all political thinkers and constitutionalists in the country since the time the idea of the transfer of power from Britain to Indian hands had taken shape. The American Bill of Rights had a tremendous impact on Indian thinking on this subject. The Indian National Congress, the liberals, the moderates of all shades and the religious minorities like the Muslims, the Christians and the Sikhs, all considered it not only desirable but essential, from the point of view of both the protection of the rights of minorities and for infusing confidence in the majority community. The British Government, however, never agreed with this idea and, therefore, none of the Constitution Acts passed by the British Parliament contained any Fundamental Rights.
When the Constituent Assembly met for the first time in 1946, no member opposed the idea of a chapter on Fundamental Rights as an integral part of the Constitution.
The real problem that confronted the framers of the law, however, was grounded on some questions like, how to limit their selection of rights to certain categories only: What rights were fundamental and what were not; and why? If the rights to life, liberty and property were fundamental, what about the right to employment and education ? Has not the traditional concept of fundamental rights, in its individualistic setting, undergone a change in the modern era of the Welfare State ? The framers, no doubt, had answers to all these questions.
This was because the State in India was not yet in a position to guarantee the right to employment or education. It was a matter of physical impossibility, not the lack of will. Hence, they divided these rights into two categories, justiciable and non-justiciable. Justiciable rights are those which can be enforced by a court of law. Part III of the Constitution, entitled “Fundamental Rights”, contains justiciable rights like the right to life and liberty. Part IV called “The Directive Principles of State Policy”, contains non-justiciable rights such as the right to employment and education. The citizen has no judicial remedy if he is denied of these rights.
Article 12 defines the term “State” as it applies to the provisions of this chapter. According to it, “the State” includes the Government (Executive) and the Parliament of India, the Government and the Legislature of each of the States, all local and other authorities within the territory of India or under the control of the Government of India. The definition is made so comprehensive that it includes every governmental authority, legislative or executive, Central, State or local, and the rights are guaranteed against violation by each one of these.
Article 13 has two important aspects. On the one hand, it invalidates all laws which were in force at the commencement of the Constitution in so far as they were inconsistent with the Fundamental Rights and to the extent of their inconsistency with those rights. On the other hand, it imposes a prohibition upon the State not to make any law which takes away or abridges the rights conferred by this chapter. The importance of this provision is that it makes express provision for judicial review of legislative enactments as to their conformity with the Constitution.
Article 33 gives the power to Parliament to suitably modify the Fundamental Rights so as to apply them to the members of the Armed Forces or Forces charged with the maintenance of public order, with a view to ensuring the proper discharge of their duties and the maintenance of discipline among them.
Article 34 deals with the restriction of Fundamental Rights when any area comes under martial law. If the right to life and personal liberty cannot be violated except according to procedure established by law, the application of martial law might become impossible in the country and it would be impossible for the State to restore order quickly in an area which has become rebellious, riotous or in any other way disorderly. Therefore, it was thought necessary to make a special provision to permit any act proclaimed by the Commander-in-Chief of the area where martial law prevails, as an offence to be reckoned under the established law. Similarly, the procedure prescribed by him shall be the procedure deemed to have been established by law. Parliament is given exclusive power also for prescribing punishment for those acts which are declared to be offences under the chapter on Fundamental Rights. The Constitution, in express terms, prohibits the State from passing any law with respect to these items. The purpose of these provisions is clearly to establish uniform standards for the whole country as these are subjects which, if handled by the States, would create different standards which would be detrimental to the ideals of single citizenship and national unity that the Constitution aims to establish.