An Assessment
The chapter on Fundamental Rights in the Constitution ever since its adoption has been the subject of criticism, both in India and outside. broadly classified, the critics are of three types.
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First, there are those who think that the Constitution does not embody Fundamental Rights in reality but only an apology fro 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. Second, there are those who think that the sprit of the whole chapter and much of its substance have been 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 order. Third, 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.
ADVERTISEMENTS:
It is true that the right to work, the right to rest and leisure, material security, etc, are not included in the chapter on Fundamental Rights. Even the right to education did not, till recently find a place there. The reason why they have not been included is not far to seek. Each of the rights in this chapter is justifiable right. That means for every violation of these rights, there is a judicial remedy, which makes the right a practical proposition. Take for example, the right to education: under it, “Every child under the age of fourteen shall have the right to free education.” It 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 adoption of the Constitution to have this right realized in practice/ Needless to say, it was impossible. It is a right which could be made available to everyone only in the course of decades. This is why the right to education was included in the chapter on Directive Principles of State Polity and a time limit of ten years was fixed. It is only through 93rd Constitution Amendment that this right has been included in Fundamental Rights in 2002
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 that latter are non-justifiable 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 laboring classes became-politically conscious and realized that the conditions which they required for the development of their personality, whose fulfillment they demanded, were different from those which the middle classes of the seventeenth and eighteenth centuries required and demanded. What the working classes wanted was better conditions of work in the factories, better housing, better sanitation, medical relief and social security. They wanted education for their children. They stood for more equitable distribution of wealth and higher and heavier taxation on the wealth. The rights 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 laborers called for positive action by the State, such as factory legislation, compulsory and free education, old-age pensions, unemployment relief and so on. This is the difference between the rights 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 no appreciate this distinction.
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The right to employment is not a right which can be safeguard 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. These 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 platitudes on paper but as effective as justiciable rights.
The provisions dealing with preventive detention and the suspension of constitutional remedies are not easy no defend. Nevertheless, there are consideration which can be argued in their favor. It has been already pointed out that the restrictions on individual freedom are necessary in the interest of society. The fathers of the Constitutions were aware of the dangers tot he existence and safety of the Republic they were establishing. They were giving it shape at a time when the country was passing through great stress and strain. There were groups and parties who made no secret of their opposition to the democratic process and proclaimed their faith in violent action to achieve their declared aims.
In spite of such extremely trying circumstances under which the country had been functioning during the first two decades, the number of persons taken into custody under the preventive detention laws had been comparatively smaller in relation to the gigantic proportions of the country, both in area and population of the country, both in area and population and 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 number of political parties and groups. Fortunately, the situation did not last long. With the announcement of parliamentary elections in February 1977, the Central Government issued instructions to all the States to release political prisoners held under the Maintenance of Internal Security Act (MISA) and allow all forms of political activity normally undertaken, especially during election time.
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The election results went against the ruling Congress Part and as a result, the emergency was fully withdrawn and the Fundamental Rights were restored. In 1978, the MISA was abolished. However, in 1981 the National Security Act (NSA) which was little different from the MISA was passed.
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 fundament 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 of the citizens. 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. Since there is no provision for the automatic suspension of any other Fundamental Rights, orders were issued soon after the proclamation suspending the enforcement of article 14 (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 also any order made in pursuance of them.
The 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 turns through the entire Constitution which made a critic remark that it is not a Constitution but a constitutional treatise. But then, simplicity of language itself need not necessarily become a virtue from a practical point of view. As has been pointed our earlier in another article, apparently simple language has not prevented unending litigation in the working of some well-known constitutions. Generally speaking, legal documents are often couched in a language which is not easily understood by the ordinary reader.
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 organized and effective it is 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. It is only in 2001 that we have attained national literacy level of 65% and that too 51 years after the promulgation of constitution. How difficult it is to organize effective public opinion in a country like India needs no special emphasis.
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 a 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 decision 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 if found them transgressing the defined limits within which they are permitted to impose reasonable limitations on the freedom of the individual. Similarly, it has, on many occasions, successfully prevented the excess and abuse of administrative power and the illegal and high-handed actions 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.
Remedies for Enforcing Fundamental Rights
Article 32 of the Constitution provides a guaranteed remedy for the enforcement of Fundamental Rights. The remedy is in the form of specific writs mentioned in the Article or any other appropriate order by the Supreme Court. A writ is a written court order by which one is summoned or required to do something. The writs mentioned in the Constitution have a long history in British constitution law and are, therefore, understood with precise meaning and importance. Hence, when an aggrieved person seeks a remedy from the Court through a particular writ, the nature of the remedy itself is clear both to him and to the Court.
The writs mentioned in the Constitution are the following:
(1) Habeas Corpus, (2) Mandamus, (3) Certiorari, (4) Prohibition, and (5) Quo Warranto.
Let us now see the nature and significance of each of them.
1. Habeas Corpus
Habeas Corpus is a Latin term which literally means “you should have the body” . The writ was regarded in England as a foundation of human freedom and the British citizens insisted upon this privilege wherever they went whether for business or colonization. This is how it found a place in the Constitution of the United States, when the British colonies in America won their independence and established a new State under that Constitution.
In India the power to issue a writ of Habeas Corpus is vested only in the Supreme Court and the High Court. The writ is a direction of the Court to a person who is detaining another, commanding him to bring the body of the person in his custody a specified time to a specified place for a specified purpose.
The writ has only one purpose: to set at liberty a person who is confined without legal justification; to secure release from confinement of a person unlawful detained. The writ is issued not only against the State and its authorities but also to private individuals or organization, if necessary.
2. Mandamus
The Latin word Mandamus means “we order”. The writ of Mandamus is an order of the Supreme Court or the High Court commanding a person or a body to do that which is his or its duty to do. For instance, a licensing officer is obliged to issue a license to an applicant if he fulfils all the conditions laid down for the issue of such license. Similarly, and appointing authority should issue a letter of appointment to a candidate if all the formalities of selection are over and if the candidate is declared fit for appointment. But despite the fulfillment of such conditions, if the officer or the authority concerned refuses or fails to issue the license or the appointment letter, the aggrieved person has a right to seek the remedy through a writ of Mandamus.
3. Certiorari
Certiorari is a writ which orders the removal of a suit from an inferior court to a superior court. It may be used before a trial takes place to prevent an excess or abuse of jurisdiction and to remove the case of trail to a higher court. It is invoked also after trial to quash an order which has been made without jurisdiction or in defiance of the rules of natural justice.
4. Prohibition
A writ of Prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction or acting contrary to the rules of natural justice. For example, a judge may be restrained from hearing a case in which he is personally interested. The writ of Prohibition is a counterpart of the writ of Certiorari and an aggrieved person may make an application for the issue of both the writs.
5. Quo Warranto
An application for a writ of Quo Warranto seeks an order from the Supreme Court or High Court to restrain a person from acting in an office to which he is not entitled. It may also seek the office to be declared as vacant. What the court has to do is to determine whether there has been usurpation of an office of a public nature. For example, a member of a Municipal Corporation may through an application of writ of Quo Warranto challenge the authority of the Mayor if he is of the opinion that he Mayor was not properly elected.
It is a matter of great significance that there have been numerous occasions when each of these writs has been sought by aggrieved parties from time to time ever since the inauguration of the Constitution.