The Fundamental Rights

"most important Article without whichthis Constitution would be nullity"

Further, it has been described as "the very soul of theConstitution and the very heart of it".

Reference may also be made to the opinion of ChiefJustice Patanjali Sastri in State of Madras v. V.G. Row[1952 SCR 597] to the following effect :

"This is especially true as regards the"fundamental rights" as to which theSupreme Court has been assigned therole of a sentinel on the qui vive. Whilethe Court naturally attaches great weightto the legislative judgment, it cannotdesert its own duty to determine finallythe constitutionality of an impugnedstatute."

The jurisdiction conferred on this Court by Article 32 isan important and integral part of the basic structure of theConstitution of India and no act of Parliament can abrogate itor take it away except by way of impermissible erosion offundamental principles of the constitutional scheme aresettled propositions of Indian jurisprudence [see FertilizerCorporation Kamgar Union (Regd.), Sindri & Ors. v. Unionof India and Ors.[(1981) 1 SCC 568], State of Rajasthan v.Union of India & Ors. [(1977) 3 SCC 592], M. KrishnaSwami v. Union of India & Ors. [(1992) 4 SCC 605],Daryao & Ors. v. The State of U.P. & Ors. [(1962) 1 SCR574] and L. Chandra Kumar (supra).

In S.R. Bommai & Ors. v. Union of India & Ors.[(1994) 3 SCC 1] it was reiterated that the judicial review is abasic feature of the Constitution and that the power of judicialreview is a constituent power that cannot be abrogated byjudicial process of interpretation. It is a cardinal principle ofour Constitution that no one can claim to be the sole judge ofthe power given under the Constitution and that its actionsare within the confines of the powers given by theConstitution.

It is the duty of this Court to uphold the constitutionalvalues and enforce constitutional limitations as the ultimateinterpreter of the Constitution.

Principles of Construction

The Constitution is a living document. The constitutionalprovisions have to be construed having regard to the march oftime and the development of law. It is, therefore, necessarythat while construing the doctrine of basic structure dueregard be had to various decisions which led to expansion anddevelopment of the law.

The principle of constitutionalism is now a legal principlewhich requires control over the exercise of Governmentalpower to ensure that it does not destroy the democraticprinciples upon which it is based. These democratic principlesinclude the protection of fundamental rights. The principle ofconstitutionalism advocates a check and balance model of theseparation of powers, it requires a diffusion of powers,necessitating different independent centers of decisionmaking. The principle of constitutionalism underpins theprinciple of legality which requires the Courts to interpretlegislation on the assumption that Parliament would not wishto legislate contrary to fundamental rights. The Legislaturecan restrict fundamental rights but it is impossible for lawsprotecting fundamental rights to be impliedly repealed byfuture statutes.

Common Law Constitutionalism

The protection of fundamental constitutional rightsthrough the common law is main feature of common lawconstitutionalism.

According to Dr. Amartya Sen, the justification forprotecting fundamental rights is not on the assumption thatthey are higher rights, but that protection is the best way topromote a just and tolerant society.

According to Lord Steyn, judiciary is the best institutionto protect fundamental rights, given its independent natureand also because it involves interpretation based on theassessment of values besides textual interpretation. It enablesapplication of the principles of justice and law.

Under the controlled Constitution, the principles ofchecks and balances have an important role to play. Even inEngland where Parliament is sovereign, Lord Steyn hasobserved that in certain circumstances, Courts may be forcedto modify the principle of parliamentary sovereignty, forexample, in cases where judicial review is sought to beabolished. By this the judiciary is protecting a limited form ofconstitutionalism, ensuring that their institutional role in theGovernment is maintained.

Principles of Constitutionality

There is a difference between Parliamentary andconstitutional sovereignty. Our Constitution is framed by aConstituent Assembly which was not the Parliament. It is inthe exercise of law making power by the Constituent Assemblythat we have a controlled Constitution. Articles 14, 19, 21represent the foundational values which form the basis of therule of law. These are the principles of constitutionality whichform the basis of judicial review apart from the rule of law andseparation of powers. If in future, judicial review was to beabolished by a constituent amendment, as Lord Steyn says,the principle of parliamentary sovereignty even in Englandwould require a relook. This is how law has developed inEngland over the years. It is in such cases that doctrine ofbasic structure as propounded in Kesavananda Bharati'scase has to apply.

Granville Austin has been extensively quoted and reliedon in Minerva Mills. Chief Justice Chandrachud observedthat to destroy the guarantees given by Part III in order topurportedly achieve the goals of Part IV is plainly to subvertthe Constitution by destroying its basic structure.Fundamental rights occupy a unique place in the lives ofcivilized societies and have been described in judgments as"transcendental", "inalienable" and "primordial". Theyconstitute the ark of the Constitution. (KesavanandaBharati  P.991, P.999). The learned Chief Justice held thatParts III and IV together constitute the core of commitment tosocial revolution and they, together, are the conscience of theConstitution. It is to be traced for a deep understanding of thescheme of the Indian Constitution. The goals set out in PartIV have, therefore, to be achieved without the abrogation of themeans provided for by Part III. It is in this sense that Part IIIand IV together constitute the core of our Constitution andcombine to form its conscience. Anything that destroys thebalance between the two parts will ipso facto destroy theessential element of the basic structure of theConstitution. [Emphasis supplied] (Para 57). Furtherobserves the learned Chief Justice, that the matters have to bedecided not by metaphysical subtlety, nor as a matter ofsemantics, but by a broad and liberal approach. We must notmiss the wood for the trees. A total deprivation offundamental rights, even in a limited area, can amount toabrogation of a fundamental right just as partial deprivation inevery area can. The observations made in the context ofArticle 31C have equal and full force for deciding the questionsin these matters.

Again the observations made in Para 70 arevery relevant for our purposes. It has been observed that if bya Constitutional Amendment, the application of Articles 14and 19 is withdrawn from a defined field of legislative activity,which is reasonably in public interest, the basic framework ofthe Constitution may remain unimpaired. But if theprotection of those Articles is withdrawn in respect of anuncatalogued variety of laws, fundamental freedoms willbecome a 'parchment in a glass case' to be viewed as a matterof historical curiosity. These observations are very apt fordeciding the extent and scope of judicial review in caseswherein entire Part III, including Articles 14, 19, 20, 21 and32, stand excluded without any yardstick.

The developments made in the field of interpretation andexpansion of judicial review shall have to be kept in view whiledeciding the applicability of the basic structure doctrine  tofind out whether there has been violation of any fundamentalright, the extent of violation, does it destroy the balance or itmaintains the reasonable balance.

The observations of Justice Bhagwati in Minerva Millscase show how clause (4) of Article 368 would result inenlarging the amending power of the Parliament contrary todictum in Kesavananda Bharati's case. The learned Judgehas said in Paragraph 85 that :

"So long as clause (4) stands, anamendment of the Constitution thoughunconstitutional and void astransgressing the limitation on theamending power of Parliament as laiddown in Kesavananda Bharati's case,would be unchallengeable in a court oflaw. The consequence of this exclusion ofthe power of judicial review would bethat, in effect and substance, thelimitation on the amending power ofParliament would, from a practical pointof view, become non-existent and it wouldnot be incorrect to say that, covertly andindirectly, by the exclusion of judicialreview, the amending power of Parliamentwould stand enlarged, contrary to thedecision of this Court in KesavanandaBharati case. This would undoubtedlydamage the basic structure of theConstitution, because there are twoessential features of the basic structurewhich would be violated, namely, thelimited amending power of Parliamentand the power of judicial review with aview to examining whether any authorityunder the Constitution has exceeded thelimits of its powers."

In Minerva Mills while striking down the enlargement ofArticle 31C through 42nd Amendemnt which had replaced thewords "of or any of the principles laid down in Part IV" with"the principles specified in clause (b) or clause (c) and Article39", Justice Chandrachud said :

"Section 4 of the Constitution (42ndAmendment) Act is beyond the amendingpower of the Parliament and is void sinceit damages the basic or essential featuresof the Constitution and destroys its basicstructure by a total exclusion of challengeto any law on the ground that it isinconsistent with, or takes away orabridges any of the rights conferred byArticle 14 or Article 19 of theConstitution, if the law is for giving effectto the policy of the State towardssecuring all or any of the principles laiddown in Part IV of the Constitution."

In Indira Gandhi's case, for the first time the challengeto the constitutional amendment was not in respect of therights to property or social welfare, the challenge was withreference to an electoral law. Analysing this decision, H.M.Seervai in Constitutional Law of India (Fourth Edition) saysthat "the judgment in the election case break new ground,which has important effects on Kesavananda Bharati's caseitself (Para 30.18). Further the author says that "No one cannow write on the amending power, without taking into accountthe effect of the Election case". (Para 30.19). The author thengoes on to clarify the meaning of certain concepts —'constituent power', 'Rigid' (controlled), or 'flexible'(uncontrolled) constitution, 'primary power', and 'derivativepower'.

The distinction is drawn by the author between makingof a Constitution by a Constituent Assembly which was notsubject to restraints by any external authority as a plenary lawmaking power and a power to amend the Constitution, aderivative power —derived from the Constitution and subject tothe limitations imposed by the Constitution. No provision ofthe Constitution framed in exercise of plenary law makingpower can be ultra vires because there is no touch-stoneoutside the Constitution by which the validity of provision ofthe Constitution can be adjudged. The power for amendmentcannot be equated with such power of framing theConstitution. The amending power has to be within theConstitution and not outside it.

For determining whether a particular feature of theConstitution is part of its basic structure, one has per force toexamine in each individual case the place of the particularfeature in the scheme of our Constitution, its object andpurpose, and the consequences of its denial on the integrity ofthe Constitution as a fundamental instrument of the country'sgovernance (Chief Justice Chandrachud in Indira Gandhi'scase).

The fundamentalness of fundamental rights has thus tobe examined having regard to the enlightened point of view asa result of development of fundamental rights over the years.It is, therefore, imperative to understand the nature ofguarantees under fundamental rights as understood in theyears that immediately followed after the Constitution wasenforced when fundamental rights were viewed by this Courtas distinct and separate rights. In early years, the scope of theguarantee provided by these rights was considered to be verynarrow. Individuals could only claim limited protectionagainst the State. This position has changed since long. Overthe years, the jurisprudence and development aroundfundamental rights has made it clear that they are not limited,narrow rights but provide a broad check against the violationsor excesses by the State authorities. The fundamental rightshave in fact proved to be the most significant constitutionalcontrol on the Government, particularly legislative power.This transition from a set of independent, narrow rights tobroad checks on state power is demonstrated by a series ofcases that have been decided by this Court.

In The State ofBombay v. Bhanji Munji & Anr. [(1955) 1 SCR 777] relyingon the ratio of Gopalan it was held that Article 31 wasindependent of Article 19(1)(f). However, it was in RustomCavasjee Cooper v. Union of India [(1970) 3 SCR 530](popularly known as Bank Nationalization case) the viewpoint of Gopalan was seriously disapproved. While renderingthis decision, the focus of the Court was on the actualimpairment caused by the law, rather than the literal validityof the law. This view was reflective of the decision taken in thecase of Sakal Papers (P) Ltd. & Ors. v. The Union of India[(1962) 3 SCR 842] where the court was faced with thevalidity of certain legislative measures regarding the control ofnewspapers and whether it amounted to infringement ofArticle 19(1)(a). While examining this question the Courtstated that the actual effect of the law on the right guaranteedmust be taken into account. This ratio was applied in BankNationalization case. The Court examined the relationbetween Article 19(1)(f) and Article 13 and held that they werenot mutually exclusive. The ratio of Gopalan was notapproved.

Views taken in Bank Nationalization case has beenreiterated in number of cases (see Sambhu Nath Sarkar v.The State of West Bengal & Ors. [(1974) 1 SCR 1],Haradhan Saha & Anr. v. The State of West Bengal &Ors. [(1975) 1 SCR 778] and Khudiram Das v. The State ofWest Bengal & Ors. [(1975) 2 SCR 832] and finally thelandmark judgment in the case of Maneka Gandhi (supra).Relying upon Cooper's case it was said that Article 19(1) and21 are not mutually exclusive. The Court observed in ManekaGandhi's case:

"The law, must, therefore, now be takento be well settled that Article 21 does notexclude Article 19 and that even if thereis a law prescribing a procedure fordepriving a person of 'personal liberty'and there is consequently noinfringement of the fundamental rightconferred by Article 21, such law, in sofar as it abridges or takes away anyfundamental right under Article 19 wouldhave to meet the challenge of that article.This proposition can no longer bedisputed after the decisions in R. C.Cooper's case, Shambhu Nath Sarkar'scase and Haradhan Saha's case. Now, if alaw depriving a person of ''personalliberty' and prescribing a procedure forthat purpose within the meaning ofArticle 21 has to stand the test of one ormore of the fundamental rights conferredunder Article 19 which may be applicablein a given, situation, ex hypothesi it mustalso' be liable to be tested with referenceto Article 14. This was in fact notdisputed by the learned Attorney Generaland indeed he could not do so in view ofthe clear and categorical statement madeby Mukherjea, J., in A. K. Gopalan's casethat Article 21 "presupposes that the lawis a valid and binding law under theprovisions of the Constitution havingregard to the competence of thelegislature and the subject it "relates toand does not infringe any of thefundamental rights which theConstitution provides for", includingArticle 14. This Court also applied Article14 in two of its earlier decisions, namely,The State of West Bengal v. Anwar AliSarkar [1952] S.C.R. 284 and KathiRaning Rawat v. The State of Saurashtra[1952] S.C.R. 435]"
[emphasis supplied]

The decision also stressed on the application of Article 14to a law under Article 21 and stated that even principles ofnatural justice be incorporated in such a test. It was held:

"In fact equality and arbitrariness aresworn enemies; one belongs to the rule oflaw in a republic, while the other, to thewhim and caprice of an absolutemonarch. Where an act is arbitrary, it isimplicit in it that it is unequal bothaccording to political logic andconstitutional law and is thereforeviolative of Article 14". Article 14 strikesat arbitrariness in State action andensures fairness and equality oftreatment. The principle ofreasonableness, which legally as well asphilosophically, is an essential element ofequality or non-arbitrariness pervadesArticle 14 like a brooding omnipresenceand the procedure contemplated byArticle 21 must answer the best ofreasonableness in order to be inconformity with Article 14. It must be"right and just and fair" and notarbitrary, fanciful or oppressive;otherwise, it would be no procedure at alland the requirement of Article 21 wouldnot be satisfied.

Any procedure which permits impairmentof the constitutional right to go abroadwithout giving reasonable opportunity toshow cause cannot but be condemned asunfair and unjust and hence, there is inthe present case clear infringement of therequirement of Article 21".
[emphasis supplied]

The above position was also reiterated by Krishna Iyer J.,as follows :

"The Gopalan (supra) verdict, with thecocooning of Article 22 into a selfcontained code, has sufferedsupersession at the hands of R.