1. Since the 17th
Century, human thinking have been veering around to the theory that man that is
to say, every human being, has certain essential, basic, natural, and
inalienable rights or freedoms, and it is the function of the State to
recognize those rights and freedoms and allow them a free play, in order to
preserve human liberty, human personality being duly developed, and an
effective social and democratic life be promoted.
2. According to LOCKE, (the
English philosopher and physician of the 17th Century), every man (read
Human being) is born, with a title to perfect freedom and uncontrolled
enjoyment of all the rights and privileges of the law of nature; and he has, by
nature, a power to preserve his property, that is his life, liberty and estate,
against the injuries and attempts of other men.
3. The declaration of the
French revolution, 1789, which may be regarded as a concrete political
statement on Human rights, and which was inspired by LOCKEian philosophy,
declared – “The aim of all political association is the conservation of the
natural and inalienable rights of man”.
4. In modern times, it is
widely accepted that the right to liberty is the very essence of a free
society, and the said liberty must be safeguarded at all times. The idea of
guaranteeing certain rights is to ensure that a person may have a minimum
guaranteed freedom.
5. The underlying idea of
embodying certain basic and fundamental rights, is to take them out of the
reach of the transient political majorities. It has, therefore, come to be
regarded as essential, that these rights be integrated in such a way that they
may not be violated, tempered or interfered with by an oppressive government.
6. With this end in view,
certain written constitutions, including of ours, guarantee a few rights to
their people and forbid governmental organs from interfering with the same. In
that case, a guaranteed right can be abridged or be taken away, but only by the
elaborate and formal process of Constitutional Amendments, rather than by
ordinary legislation. These rights are characterized as fundamental rights.
7. Coming to our land, a few
good reasons made the enunciation of fundamental rights in our Constitutional
texts as inevitable proposition. During the British Rule in India, human rights
were violated by the British Rulers on a very wide scale; and, the main
political party, the Congress, therefore, had for long been demanding these
rights against the British Rulers. Therefore, the framers of the Constitution,
many of whom had suffered long incarceration during the British Regime, had a
very positive attitude towards these rights.
8. Further, the Indian society
is fragmented into many religious, cultural and linguistic groups, and it was
necessary to secure fundamental rights, to give to the people a sense of
security and confidence, for, there was a potential danger that the majority in
the Legislature may enact such laws which may be oppressive to individuals or
to any minority groups; and such a danger could be minimized, by having a Bill
of Rights in the Constitution.
9. Also, it was believed that
people should have some rights which may be enforced against the government
which may become arbitrary at times.
10. The need to have the
fundamental rights in the Constitution was so very well accepted on all the
hands that in the Constituent Assembly the point was not even considered as
whether or not to have such fundamental rights in the Constitutional body. In
fact, the fight all along were against the restrictions being imposed upon the
fundamental rights; and the effort all along was to have the fundamental rights
were put on as broad and pervasive basis as possible. The object of having
certain fundamental rights in the body of the Constitution was to secure the
inviolability of certain essential rights against the political vicissitudes.
11. Fundamental rights has two
aspects – firstly, they act as a fetter on plenary legislative powers; and
secondly, they provide conditions for fuller development of our people,
including their individual dignity. (2012) 6 SCC 1 (32).
12. The fundamental rights are
being declared as a basic feature and constitute as a basic structure of our
Constitutional framework. They cannot be contravened or abridged by any
statutory or Constitutional provision. Any law that abrogates or abridges such
rights would be violative of the doctrine of basic structure. Freedom
guaranteed under Part III have been liberally construed by various
pronouncement of the Apex Court of our country in the last six decades. The
object being to place citizens at a centre stage and make the State
accountable. (2010) 3 SCC 571.
13. In the landmark case of Ajay
Hasia, the Apex Court said, “It
must be remembered that the Fundamental Rights are constitutional guarantees
given to the people of India and are not merely paper hopes or fleeting
promises and so long as they find a place in the Constitution, they should not
be allowed to be emasculated in their application by a narrow and constricted
judicial interpretation. AIR 1981 SC 487.
14. The Apex Court acts as
“sentinel on the qui vive” in relation to the fundamental rights. Commenting on
its role entrusted to it under the Constitution to protect fundamental rights,
in the landmark case of Daryao, the Apex Court said, “The fundamental rights
are intended not only to protect individual's rights but they are based on high
public policy. Liberty of the individual and the protection of his fundamental
rights are the very essence of the democratic way of life adopted by the
Constitution, and it is the privilege and the duty of this Court to uphold
those rights. This Court would naturally refuse to circumscribe them or to
curtail them except as provided by the Constitution itself”. AIR 1961 SC 1457.
15. It deserves
mention of critical observation of the Apex Court in a Constitution Bench of
Nine Judges, in I R Coelho Case – (2007) 2 SCC 1 : AIR 2007 SC 861: In this case, the court tried to explain the basic
structure theory and said that it is the duty of the Courts to uphold the
Constitutional values and enforce Constitutional limitations as the ultimate
interpreter of the Constitution; The role of a judiciary is to protect
fundamental rights.
Para 57: The fundamentalism of fundamental rights has thus to be
examined having regard to the enlightened point of view as a result of
development of fundamental rights over the years. It is, therefore, imperative
to understand the nature of guarantees under fundamental rights as understood
in the years that immediately followed after the Constitution was enforced when
fundamental rights were viewed by this Court as distinct and separate rights.
In early years, the scope of the guarantee provided by these rights was
considered to be very narrow. Individuals could only claim limited protection
against the State. This position has changed since long. Over the years, the
jurisprudence and development around fundamental rights has made it clear that
they are not limited, narrow rights but provide a broad check against the
violations or excesses by. the State authorities. The fundamental rights have
in fact proved to be the most significant constitutional control on the
Government, particularly legislative power. This transition from a set of
independent, narrow rights to broad checks on state power is demonstrated by a
series of cases that have been decided by this Court....
Para 61: It is evident that it can no longer be contended that
protection provided by fundamental rights comes in isolated pools. On the
contrary, these rights together provide a comprehensive guarantee against
excesses by state authorities. Thus post Maneka Gandhi's case it is clear that
the development of fundamental rights has been such that it no longer involves
the interpretation of rights as isolated protections which directly arise but they
collectively form a comprehensive test against the arbitrary exercise of state
power in any area that occurs as an inevitable consequence. The protection of
fundamental rights has, therefore, been considerably widened.
Para 63: The abrogation or abridgment of the fundamental rights under
Chapter III have, therefore, to be examined on broad interpretation, the narrow
interpretation of fundamental rights chapter is a thing of past. Interpretation
of the Constitution has to be such as to enable the citizens to enjoy the
rights guaranteed by Part III in the fullest measure.
Regarding the status and stature in respect of fundamental rights in
Constitutional scheme, it is to be remembered that Fundamental Rights are those
rights of citizens or those negative obligations of the State which do not
permit encroachment on individual liberties. The State is to deny no one
equality before the law. The object of the Fundamental Rights is to foster the
social revolution by creating as society egalitarian to the extent that all
citizens are to be equally free from coercion or restriction by the State. By
enacting Fundamental Rights and Directive Principles which are negative and
positive obligations of the States, the Constituent
Para 103: Fundamental rights enshrined in Part III were added to the
Constitution as a check on the State power, particularly the legislative power.
Through Art. 13, it is provided that the State cannot make any laws that are
contrary to Part III. The framers of the Constitution have built a wall around
certain parts of fundamental rights, which have to remain forever, limiting
ability of majority to intrude upon them. That wall is the 'Basic Structure
doctrine. Under Art. 32, which is also part of Part III. Supreme Court has been
vested with the power to ensure compliance of Part III. The responsibility to
judge the constitutionality of all laws is that of judiciary.
Para 106: The fundamental rights have always enjoyed a special and
privileged place in the Constitution. Economic growth and social equity are the
two pillars of our Constitution which are linked to the rights of an individual
(right to equal opportunity), rather than in the abstract. Some of the rights
in Part III constitute fundamentals of the Constitution like Art. 21 read with Arts.
14 and 15 which represent secularism, etc.
16. In the instant case at hand, the breach is
fundamental. The law does not meet rational basis scrutiny; Legislative
enactments bearing good intentions are not sufficed; they have to conform to
and pass to our Constitutional standards.
17. Notwithstanding that any cruelty
and violence within the family against women be curbed, nevertheless, any law
purporting to address this social issue has to conform to Constitutional norms
and dictates, more particularly the rigours of Articles 14, 19 and 21 of the
Constitution of India.
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