FUNDAMENTAL RIGHTS ARE FUNDAMENTAL
PROF.
M. RUTHNASWAMY, M. P.
Mr.
Nath Pai’s Bill, introduced
in Parliament last year, seeks to amend the
Constitution so as to give power to Parliament to pass legislation modifying or
reducing the fundamental rights guaranteed in the Constitution. It is based on
a misunderstanding of the constitutional position and powers of Parliament, and
on the mistaken idea that Parliament is sovereign and supreme. For under the
Constitution no legislature is supreme in
come
within the legislative competence of the Parliament. And if
provision is made for amending the Constitution in Art. 368 by means of
a special procedure, it is only the Constitution that can be amended. And
Fundamental Rights are not part of the constitution.
A
Constitution, according to the Encyclopaedia
Britannica in the wider sense, is the whole scheme regulating a country’s
government. Jennings describes a constitution as “The document in which are set
out the rules governing the composition, powers and methods of operation of the main institutions of government and the
general principles applicable to their relations with the citizens, it merely
sets out the rules determining the operation of governmental institutions.” If
there is more than one institution of government it arranges the relations
between them–between the legislature and the judiciary and the executive. “It
assigns” in Chief Justice Marshall’s words, “to different departments their
respective powers.” In the judgment on Marbury vs.
Look
at the place occupied by the Fundamental Rights in the Constitution
of India. After in Part I defining the territory of India–the
space over which the Government described in the Constitution
would have its jurisdiction, and Part II which defines the people over whom the
Government could exercise power, the citizens of India, comes Part III on
Fundamental Rights defining and detailing the principles to which that system
of government should be carried–the principles to which that system of
government would be subject. They form the head and front of the Constitution.
Their place in the Constitution frees them from the defect pointed out by Mirabeau, the statesman of the French Revolution who
declared that “a Declaration of Rights without a Constitution to guarantee them
is but the almanac of a year.” Fundamental Rights are placed under the
protection of a Constitution which was framed together with the Rights
that were declared.
And
these rights and the principles of government which they enshrined are among
the most important that have ever governed the life of free and civilized men.
At the head stands the principle of equality–equality before the law, equality
of opportunity, prohibition of any discrimination and abolition of the age-old practise of untouchability. And then come
the freedoms of free men–freedom of speech and expression, freedom of association
assembly, freedom of movement and settlement, freedom to acquire land and
dispose of property, right to life and liberty. And then the rights practised in a tolerant State, the right to freedom of
conscience and the right freely to profess, practise
and propagate religion. And then the special section on
rights of minorities to have educational
and charitable of their own and for their own members.
And on the great legal principle ubi jus
obi remedium, no right without a remedy, comes the section on the right to constitutional
remedies for infringement of rights.
This
short enumeration of the rights guaranteed in the Constitution by itself proves
the importance and the fundamental character of these rights. They are not
granted by the Constitution–they are guaranteed by
the Constitution. Either as natural rights–natural
to all men to which men have a right like the right to life, liberty and
property they antedate constitutions and even States. It is true as Bentham contended that it is only in states with
Governments to uphold them that they are secure. But without States and
Governments–as in the West, in
North America in the days of the pioneers–men
would secure them by their own right hand or as best they can. In some
countries, as in England and in India under the British, these natural rights
are common law rights that existed and operated. And they have been treated as
fundamental.
Even
in England where the doctrine of parliamentary sovereignty preached for a
generation of English-speaking people by Professor A. V. Dicey–and
one cannot help thinking that Mr. Nath Pai is under the influence of that doctrine accepted as
gospel truth in his student days–the
doctrine has begun to wear thin. In a recent history of English Law (Social
History of English law by Harding 1966) the author speaks of a fundamental
law in England. Fortescue referred to a formulation
of fundamental law under which both king and subject had rights. The modern
historic traces reference to it from Stuart times when lawyers turned to
history to justify their view of the Constitution (that the king was not
above the law) because antiquity was the only attribute of the fundamental law
they all invoked. The great lawyer, Coke, who resisted King James I and was
removed from office, believed that there were some fundamental principles
behind English law which it was inadvisable for Parliament to alter. In Dec.,
1641 in the Grand Remonstrance the Commons denounced the king “for a malignant
and pernicious design of subverting the fundamental laws and principles of
government.” In medieval times and in recent years Dicey’s
theory of the sovereignty of Parliament has been called in question. There are
many things Parliament cannot do. “No parliament,” says Professor Laski, “would dare to disfranchise the
Roman Catholics or to prohibit the existence of trade unions.” Dicey was drawn
by this inability to distinguish between legal sovereignty and political
sovereignty. But then as Professor Jennings points out, legal sovereignty,
which is a lawyer’s concept, is not sovereignty at all, it is not supreme
power. And by legal sovereignty the lawyers express the relations between
Parliament and the courts, the courts recognize any law passed by Parliament as
valid. The political soveriegn is the people.
Modern
English political thought also has given currency to the idea of certain
fundamental laws binding Parliament. Locke argued that although the legislative
power is supreme, even absolute is not arbitrary, unlimited. Legislative
supremacy for Locke was not the right of a legislature to do anything that it
wished or in any way it wishes. Bentham in his
Constitutional Code (1870-80) rejected parliamentary supremacy emphatically and
adopted the principle of the French Constitution of 1791, which had been
advocated by Sieyes of a constitutional authority, to
which the other authorities of the State including the Legislature was to be
subordinated. According to Bentham the legislative
power is subordinate to “supreme constitutive power.” According to Bayehot, to attribute sovereignty to the Commons is to
misunderstand the power the Ministers exercise on the one-hand and the role of
the electorate on the other. He also like Behtham
held the sovereignty or supremacy of the legislature as being qualified by the
power of a constitutional authority.
If
it is so far a unitary government like that of England, without a formal
written constitution, it is definitely and unmistakably so in a Federal written
constitution. Chief Justice Marshall’s view of the people being the makers and
amenders of this Constitution and the principles on which their government
ought to be conducted which are fundamental and permanent (till
they decide to change them) has already been quoted. Later judicial opinion in
the U. S. A. has also gone on to confirm this view. Mr. Justice
Black writing on the Bill of Rights in New York University Law Review April
1960, wrote: “It is my belief that there are ‘absolutes’ in the Bill of Rights
and they were put there on purpose by men who knew what words meant and meant
these prohibitions to be absolute as to the ground that a supreme public
interest justifies the abridgement (of these rights). I think the Bill of
Rights makes its safgaurds superior.” Mr. Justice
Jackson in West Virginia State Board of Education vs. Banette said, “One’s right to life, liberty and property,
to free speech, a free press, freedom of worship and assembly and other
fundamental rights may not be submitted to vote; they depend on the results of
no election.”
Against
this cloud of witnesses from abroad what can the protagonists of the attempt to
place such fundamental laws as fundamental rights at the mercy of a
parliamentary majority, which is in fact a party majority, say? Only the
Communists could support such a move–for
according to them law is what the Communist party at any given moment
desiderates. Socialists also may be tempted to support this view–for
these fundamental rights are a nuisance and obstacle in the way of their
achievement of socialist ideas. And the present Government at the centre, which has so readily supported the move, has always
looked askance at fundamental rights. But all those that believe in the right
to equality, to free speech, free association, to free exercise of religion, as
being necessary to the life of free and civilized men will oppose the move and
prevent it from proceeding to the desired amendment of the Constitution.
Especially as they can invoke the Constitution itself in support of this stand. At the very commencement of the chapter on Fundamental Rights, Art. 13 (1) provides that all past laws, so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency be void. And Art. 13 (2) provides that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void. And what is meant by the State includes the Government and Parliament of India and the Government and the legislature of each of the States and all local authorities or other authorities within the territory of India or under the control of the Government India. As if to make this denial to Parliament of the power to amend the fundamental rights this chapter provides for certain of these rights being subject to legislation by Parliament.
Apart
from certain provisos of certain articles providing for the State to safeguard
order and morality, articles like Art. 22 contain provisos allowing Parliament
to legislate towards ensuring the exercise of certain rights, e.g., Act 22 (7).
Apart from these special provisos Parliament may not amend these fundamental rights.
These provisions for Parliamentary intervention which are meant to implement
and facilitate the exercise of certain rights guaranteed to certain backward
classes and not to deny or reduce the rights as the Bill in Parliament seems to
do, are exemptions, that prove the rule that fundamental rights are
unassailable by Parliament even when acting on its constitution-amending
capacity for they are fundamental and therefore to be protected and defended by
the Constitution.