What we need to guard

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

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 specificallymentioned 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.

 Written by Soli J. Sorabjee

 The writer is a former attorney general for India

Source: Indian Express, 12-01-2017