Indian Constitution provides a robust list of Fundamental Rights and also contains some safeguards for their protection.
This post shall succinctly examine the efficacy of the Fundamental Rights in light of some inbuilt safeguards in the Indian constitution (designed to protect them from State assault), reasonable restrictions, and judicial interventions especially the active and passive roles of the judiciary in upholding the sanctity of fundamental rights.
Fundamental Rights are the most distinguishing feature of any constitution which is rights-oriented and is based on the values of a liberal-welfare State.
In India such, rights are enshrined in Part III of its constitution and are enforceable only against State or its instrumentalities as per Article 12.
These rights in some way are reflective of the much higher principles of the UDHR (Universal Declaration of Human Rights) sans which human existence would be akin to dumb driven cattle.
Inbuilt Safeguards for Fundamental Rights
Since such rights (in varying forms and degrees) have been provided for in the respective grundnorms of other countries also, many Indian constitutional scholars point out that certain inbuilt mechanisms to safeguard, entrench and protect these provisions from infringement by the State is what sets apart the Indian constitution from the rest.
For instance, Article 13 of the Indian constitution provides that the State shall not make any law that takes away or abridges the Fundamental Rights and that any law made in their contravention shall be void to the extent of such contravention.
Then Article 32 and 226 empower the common man to directly approach the Supreme Court and High Courts respectively for the enforcement of these rights.
And these constitutional courts can issue appropriate directions, orders, or writs (like habeas corpus, mandamus, prohibition, quo warranto, and certiorari) for the enforcement of any of the Fundamental Rights mentioned in Part III of the Constitution. Dr. Ambedkar famously referred to Article 32 as the Heart and Soul of the constitution.
The activist role of the Supreme Court is reflected in cases like Ram Nandan v State 1959; Maneka Gandhi v Union of India 1978; Bhim Singh v J&K 1885; Nilabati Behera v State of Orissa 1993; Shreya Singhal v UOI AIR 2015, etc
Supreme Court and Rights Violations
Cases, where the Supreme Court turned a blind eye to the violations, include AK Gopalan v State of Madras 1950 and ADM Jabalpur v Shivkant Shukla 1976, etc. The latter is infamously known as the darkest moment in the history of the Supreme Court wherein it controversially held that-
“in view of the Presidential Order Article 359 (Emergency Provisions), no person has any locus-standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ, order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides-factual or legal or is based on extraneous considerations.”
SC had re-affirmed the ‘Proportionality Test’ in Modern Dental College v State of MP 2016 wherein it had held quite authoritatively that the curbs on fundamental rights would be justified only if they are necessary to achieve the legitimate legislative aim and there are no other less restrictive measures/ways to achieve the same.
Circumvention of Rights by the State
If on one hand, the Constitution provides certain inbuilt mechanisms to protect the fundamental rights from unnecessary & arbitrary government encroachment then, on the other hand, it also provides a lot of leeways to the state to circumvent or get away with the violations.
For instance, Article 12 provides that fundamental rights are enforceable only against the state. Initially, the state was meant to be only the government or its agencies performing the government functions.
So when other government entities like universities, statutory corporations, etc were accused of violating Fundamental Rights, State simply tried to evade responsibility by saying that such entities are not State within the meaning of Article 12.
For a long time, courts upheld such defenses by the State. In the University of Madras v Shantabai 1954, the court held that Madras University is a completely separate personality from the government as it is not exercising govt functions but a body corporate constituted by the government to promote education.
Later in Rajasthan State Electricity Board v Mohan Lal 1967, SC excluded even the State Electricity Board from the purview of State by saying that it was set up to carry out commercial activities and not for exercising governmental functions.
It was only after the Emergency that the court expanded the scope of State by giving some liberal and purposive interpretations to Article 12 in cases like RD Shetty v International Authority 1979 and Ajay Hasia v Khalid Mujib Sehravardi 1981. In the Ajay Hasia case, the Court gave 6 indicative factors for determining whether an entity is a state or not.
This was however narrowed down in some later cases like Pradeep Kumar Biswas v Indian Institute of Chemical Biology 2002 and Zee Telefilms v Union of India 2005.
In the former, the court held that the entity should be financially, administratively, and functionally under the control of the government while in the latter it held that mere regulatory control of the government over an entity under statute or otherwise would not make it a State for the purpose of Article 12.
Reasonable Restrictions
Since all fundamental rights provided for in the Indian Constitution are also accompanied by Reasonable Restrictions, the State often tries to justify the restraints or curbs on Fundamental Rights on the basis of these reasonable restrictions especially in the cases of violations of certain freedoms under Article 19.
These freedoms include the freedoms of speech and expression, peaceful assembly, trade, occupation, etc.
The most often invoked defenses in such cases are ‘in interests of the sovereignty and integrity of India, the security of the State, public order and incitement to the offense’
In the landmark Kesavananda Bharti v State of Kerala 1973 case SC declared that amending power of the parliament does not extend to altering Basic Structure or ‘Essential Features’ of the Constitution-an open-ended catalog of features that lies within the exclusive control of the Court.
The Burden of Proof and the Presumption of Constitutionality
In simple terms, this means that there is always a presumption in favor of the constitutionality of an enactment and the burden is upon him/her who attacks it to show that there has been a clear transgression of the constitutional principles.
This has its roots in the doctrine of ‘Deference to the will of the legislature’ which again is based on the presumption that the legislature concerned understands and correctly appreciates the need of its own people, and ordinarily shall not make laws in violation of the Fundamental Rights and even if does, it will be a permissible limitation.
This presumption places a very heavy burden on the common man and makes it very difficult if not impossible for her/him to prove the violation even though the court in some cases (like Bachhan Singh v State of Punjab) clarified that this rule is not a rigid inexorable rule applicable at all times and in all situations.
That in certain grave situations the court may refuse to proceed on the basis of the presumption of constitutionality and demand from the State justification of the legislation with a view to establishing that it is not arbitrary or discriminatory.
In the Modern Dental College v State of MP 2016, the court bravely tried to reverse this burden by holding that once the petitioner has shown the infringement of the Fundamental Rights, the burden shifts on the State to show that restrictions are reasonable, justified, and proportionate. But in the light of the Kashmir experience, one can say that this holding has not been adhered to in letter and spirit.
Special Laws and Rights Violations
Certain Special laws like AFSPA, PSA or the Public Safety Act (recently invoked in Kashmir at large scale), etc have draconian provisions like arrest without warrant, preventive detention, legal immunities to concerned officers for their actions, etc which allow the State to easily bypass the ‘Due Process Requirement‘.
One should note, that even though the Indian constitution does not explicitly mention the due process requirement as such, the Supreme Court through a creative interpretation has mandated its requirement in legal domains.
In Maneka Gandhi v Union of India (1978), the court held that procedure provided for by way of primary legislation need to be fair, just and reasonable and not fanciful, oppressive or arbitrary and should be carefully designed to effectuate, not to subvert, the substantive right itself.
Further, the imposition of draconian laws AFSPA and PSA on any area declared ‘disturbed’ renders all claims of fundamental rights almost futile.
United Nations and several of its agencies have repeatedly asked the Indian government to repeal laws like AFSPA and fulfill its Article 4 obligation under the ICCPR (International Covenant on Civil and Political Rights) but the government seems to have conveniently ignored such requests.
Even though the Supreme Court has often cautioned the government over rights violations, the reality remains grim.
As per a report released by the home ministry in response to an RTI query, Jammu & Kashmir tops the list of rights abuses under AFSPA followed by Assam.
Conclusion
Indian Constitution provides a robust list of Fundamental Rights in its Part III, and also certain safeguards for their protection.
Indian Supreme Court undoubtedly deserves praise for at least affirming and expanding the scope of many of the Fundamental Rights especially under the troika of Articles 14, 19, and 21 even though such expansion or affirmation of rights has bought little changes at the ground level in absence of the substantive realization and enforcement of these rights at the institutional, social, and individual levels.
Notwithstanding some inbuilt safeguards (like Articles 13, 32, and 226) in the Indian constitution for the protection of Fundamental Rights, the existence of certain Special laws like AFSPA and their inherent draconian provisions can easily bypass all fundamental rights, procedural due process, and fairness.
And the State can easily justify them as reasonable restrictions necessary in interests of the sovereignty and integrity of India, the security of the State, or for the maintenance of public peace.
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