JUDICIALLY DERIVED RIGHTS AS FUNDAMENTAL RIGHTS

JUDICIALLY DERIVED RIGHTS AS FUNDAMENTAL RIGHTS

A lecture delivered by former chief justice Hon’ble Mr. A. M. Ahmadi on September 14,2003 at India International centre, New Delhi.

I must at the outset express my deep sense of gratitude to the Institute of Objective Studies for undertaking this program of talks on different aspects of the Constitution of India, the laws which touch us day in and day out and about which a comprehensive understanding is a prime necessity. Every constitution has a historic background. There is no constitution of any country, which is framed in a total vacuum. The Constitution of India was also framed in a historic background. We had the experience of the French Revolution, the American War of Independence and the declarations that followed thereafter. We also had the experience of the Russian Revolution. Besides, we had experienced the working of the Government of India Act, 1935. We also had the additional benefit of the Universal Declaration of Human Rights which came about the time when our constitution-makers were engaged in a serious debate in regard to the framing of the Constitution. We must also bear in mind that India had some experience, though little, of the working of a democratic system after the 1935 Act was put in place.

It is in this historic background that our constitution-makers were engaged in the process of framing a constitution for free India. You can see the traces of this experience, the historical background and the experience that the constitution-makers had, writ large on the constitution. The four pillars on which the edifice of the Constitution of India stands are justice, liberty, equality and fraternity; the French Revolution is reflective of these basic values. The traces of the American Declaration of Independence can be seen as you proceed further when you go to Part III of the Constitution that provides the fundamental rights. If you divide them, a little discerning eye on the fundamental rights would show that articles from beginning up to 21 are articles governing the individuals and onwards from 22 to the end are articles which give collective rights to the citizens of this country. When I view these articles and particularly the Fundamental Rights up to 21, I see the generosity, the magnanimity, the broad mindedness of the constitution-makers in two articles - articles 14 and 21 of the Constitution; whereas the other articles talk specifically about the rights of the citizens of free India. Articles 14 and 21 begin with the words "no person" they are, therefore, not confined to citizens of this country; even foreigners are entitled to those rights. That is why I say that the constitution-makers had a very broad perspective before them.

Since today's talk is confined more or less to article 21, having given a broad perspective, I will come now to what went into the framing of this article; how it changed complexion from time to time due to the discussion in the Constituent Assembly; how ultimately it came to be framed as it is in bold print in the Constitution; and how it appears in actual implementation.

These are the facts which perhaps I will be dealing with but, as I said, the Constitution was not prepared in a vacuum and, therefore, when we try to understand it, we must not lose sight of the backdrop in wahich it came to be framed. Article 14 says no person shall be denied equality, no discrimination shall be allowed on the grounds of community, religion, sex etc. The context of equality in the Preamble, which is the soul of the Constitution, when translated into article 14, we mark the breadth of the concept of equality which also came from the Russian backdrop. And then we come by the element of fraternity which reflects the French Revolution and talks of national integrity etc.

Article 21 has an interesting background. The first draft for that article was prepared by Kanhaiya Lai Munshi who had clubbed life and liberty with property. In the concept of liberty the emphasis was placed on the American Constitution- the American concept of the ownership of property. These two, life and liberty as well as property, were for that reason put together. There was a serious debate whether, in the context of the Indian scenario, it would be right to put both these together. After the debate Kanhaiya Lai Munshi himself broke it up into two parts: right to life and liberty on one side and property rights on the other. Then followed an interesting debate whether article 21 should contain 'the due process' clause of the American Constitution. Kanhaiya Lai Munshi had added this phrase 'the due process'. There was a very serious debate on this. The Constituent Assembly was virtually divided on this issue. There were strong views on either side. In this regard, Dr. Ambedkar, who had been processing various articles of the draft Constitution in the Constituent Assembly, made a very interesting observation and I quote him:

The question of 'due process' raises in my judgment question of the relationship between the legislature and the judiciary. In a federal constitution it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the constitution to the particular legislature. If the law made by a particular legislature exceeds the power given to it by the constitution, such law would be ultra vires and invalid. The due process clause, in my judgement, would give the judiciary power to question the law made by the legislature (on other principles) relating to the rights of the individuals. In other words, the judiciary would be in doubt about the authority to question the law not merely on the ground whether it was in access of the authority of the legislature but also on the ground whether the law was a good law, apart from the question of the power of the legislature making the law.

Dr. Ambedkar was, therefore, not prepared to say, at that point of time, that the judiciary should have the power of judicial review uninhibited. He said the judiciary can strike down a law if it is beyond the competence of legislature meaning thereby, in the present context of the Constitution if a state enacts a law which is under List I of the Seventh Schedule to the Constitution, falling within the scope of Parliament, that law would be declared as invalid by the judiciary. But there was a question whether the judiciary should be allowed to go a step further and say that this law is ultra vires. He was in two minds at that point of time and this becomes clear if I quote a further statement made by him in the Constituent Assembly. And he said: 

We are, therefore, placed in two difficult positions. One is to give the judiciary the authority to sit in judgement over the will of the legislature and to question the law made by the legislature on the ground that it is not a good law in consonance with fundamental principles. Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides for my self. I cannot altogether omit the possibility of a legislature backed by party men making laws, which may abrogate, violate, what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time I do not see how five or six gentlemen, [I would add on my part also not only men but ladies] sitting in the Federal or Supreme Court examining laws made by the legislature and by dint of their own individual consciousness for their bias or their prejudices, be trusted to determine which law is good and which law is bad. It is rather a case where one has to see between two situations, as I mentioned. And I therefore would not say anything. I would leave it to the House to decide one way or the other.

This is what Dr. Ambedkar said at that point of time. The House was most vertically divided. Dr. Ambedkar said that he was not in a position to make up his mind. Thus the debate turned into an exhilarating intellectual exercise. Even today it gives me pleasure to read that debate. How then was this solved? Two situations developed. One was the draft prepared by Kanhaiya Lai Munshi which carried the phrase 'due process of law'. This, as we understand the;.context of the American Constitution, would have given the judiciary fairly wide powers of judicial review to strike down laws, not only because they were not consistent with the fundamental rights conferred on the people. This stalemate situation had to be resolved.

Dr. B. N. Rao, therefore, went to the United States to study the impact of the phrase 'the due process of law'. In the course of his interaction with various jurists and judges in the United States, he had a discussion with a very leading and eminent jurist-cum-judge, Justice Frankfurt. Justice Frankfurt advised him against 'the due process' clause on the ground that it would flood your courts with litigation. That was the experience in the United States. B. N. Rao came back and had interaction with Dr. Ambedkar and his other colleagues and ultimately the words 'due process' came to be substituted by the words that you find today in article 21 of the Constitution, namely, 'in accordance with procedure established by law'. Very many questions shot up soon thereafter because article 21, as it is on the statute book in the Constitution today, reads that "no person shall be deprived of his life or liberty except in accordance with the procedure established by law".

We have thus seen the background of article 21. Now we have to consider what is the complexion of article 21 as it stands and as it is understood today in judicial parlance and in legal practice. The existing version takes the flavor of 'except in accordance with procedure established by law'; but, does it take the flavor of 'due process' also? A strong case was being made out time and again that words 'except in accordance with procedure established by law' would give the government the power to enact a procedure and thereafter take away the liberty and life of the individual. Is that what a civilized society would like to tolerate? Up to a certain point of time the Supreme Court also went by the letter of the law, and once there was a procedure established by law that was considered to be sufficient. This had, to a certain extent, the flavor of the English jurisprudence the English legal system, namely the Parliament, that can enact a law no matter whether it falls within the scope of List I or List III of the Constitution and that is the end of the matter.

Parliament is supreme in England; it used to be said that Parliament can make a women a man and a man a woman; [but] parliamentarians have shown the wisdom not to do that. Often the question arises, whether you can trust every one, every parliamentarian or every Parliament which has sometimes a brute majority, to act in such a responsible manner. That would be taking an off chance and so there came situations, which developed from 1950 onwards almost to 1970's, which stirred the conscience of the judiciary, and in India in particular, the conscience of the Supreme Court of India and, therefore, the first step that began was to say that the procedure which is conceived of under article 21 cannot be an arbitrary procedure. That was the first in road which was made through the process of interpretation. Thus, through the process of  interpretation it was established that the procedure has to be fair and reasonable and not arbitrary; and that was on the premise that anything that is arbitrary violates the equality clause of article 14 of the Constitution. So you read equality clause in article 21 because these two articles, as I say, stand out as conferring power, conferring rights, on every individual, no matter whether he is a citizen of India or he is not a citizen of India. So, reading article 14 in article 21, the judiciary says that the procedure established by law must be fair and reasonable, meaning thereby rational and not wholly arbitrary.

This was the first journey in the direction of article 21..... If the process is found to be arbitrary the court would strike it down. And that is where we entered into the first phase of broadening the horizon of article 21. But then the question arose could you tolerate a law which takes away or abrogates the fundamental rights? So, to what pedestal do you put the fundamental rights and to what pedestal you put the Parliament or the legislature to enact a law within the compass of their respective jurisdictions? Now supposing a law is framed by Parliament within its law making authority, can the court interfere with that law? The old concept the strict interpretation of this concept was known. That's that, but then it reduces the fundamental rights to a secondary position and judges were not prepared to allow the citizenry to be placed in a situation where even a law which offends or violates a fundamental right has to be tolerated. Therefore, slowly and gradually judicial minds and judicial conscience began to seriously debate this issue. Now the American Constitution having used the expression of due process, as you all know right from Chief Justice Marshal's time down the line, a struggle arose, and some times a very bitter struggle as during President Jefferson's time and Roosevelt's time a very bitter struggle between the judiciary on the one hand and the executive and the legislature on the other. Even before Chief Justice Marshal's decision in Melbourne Paddington case, there was thinking that the judicial power cannot be canceled and capsuled but there were, as I say, historical factors and in those days we had the Magna Carta.

The working of the parliamentary system and democracy in England and new democracies was, therefore, a little slow in moving in a direction other than what was then prevalent at that point of time, I am glad that with the passage of time, and particularly after the 1970's, the Supreme Court of India did not get bogged down by the baggage it was carrying of the past We all know that a constitution is not a temporary document. It is by and large a document, which serves the people for centuries to come. The American Constitution has only a few very precise short sentences conferring rights. Ours is a very elaborate document At one point of time it was considered the longest constitution of the world until Yugoslavia showed the temerity of exceeding the length of our Constitution. But it is not the length of the Constitution that matters. What really matters is the quality of rights conferred by the Constitution on its citizenry and even non-citizens as I said, and that is of great importance.

As society develops, the law must develop. Law cannot live in the past. It has to live in the present and also look to the future. That is why I always believe that the passage of law, the development of law is 'status quo, change, status quo, change' and so on and so forth. Because there are no frog leaps which one can take in the evolution of the constitutional law in particular, and even other laws, because that is likely to create ripples in the society, disturbance in the society, which the society could not endure and as a result there may be avoidable turmoil and difficulties. Therefore, it is always that law is at certain times static then changes, then that change becomes static and then further change and so forth. In, as you all know Keshvananda-bharti's case, the Supreme Court took an extremely bold step. Of course there are several judgments, running into a few hundred pages, of Keshvanandabbartis case and I do not know if every one in the legal field had been able to read through and digest those judgments. But the crux is that the Supreme Court said that the power to amend the Constitution conferred by article 368 is also limited in the sense that you cannot interfere with the basic feature of the Constitution. And in Bommai case the Honorable Supreme Court, with one voice, said that the secularism is one of the basic features of the Constitution.

But coming back to article 21, now look to what is known as a kashmakash over even broader procedure meaning reasonable procedure established by law or due process. Due process had conferred on the judiciary inherent power of judicial review and power to strike down laws which are not consistent with the fundamental rights enshrined in the Constitution. There came a time when judiciary, despite the historical background of a conscious decision taken by the Constituent Assembly not to include the due process clause through an interpretative process, took a course in favor of it, and I am not going to package it differently. I'll be quite clear on this. The judiciary through the process of interpretation introduced the due process clause and it is fairly clear now that the due process clause has virtually found its place in article 21 through the interpretative process adopted by the Supreme Court and other courts of the country. The high courts also are following those judgments. So today I have no doubt in my mind that article 21, when it uses the words "except in accordance with procedure established by law", means the due process clause. Let's not beat about the bush. Certainly the Constituent Assembly after a debate avoided using the due process clause in article 21. Times have changed. Citizens' rights had to be safe-guarded because that was one of the essential elements of the functioning of the judiciary of the country to protect and safeguard fundamental rights of the citizens otherwise what happened during Emergency can happen again.

Fundamental rights will be subjected to being frozen up to a certain point of time or whatever the extent of time; the executive wants it to be frozen. That is the reason why this consciousness of the judiciary was not prepared to allow that to happen to its citizens, to deny them the fundamental rights. So fundamental rights ultimately received the prima facie importance which they really deserved and the interpretation of article 21 was expanded and the court as the guardian of the Constitution and the fundamental rights of citizens considered it its solemn duty not to allow the dilution of the fundamental rights; not to allow the abrogation of the fundamental rights; not to subject the citizens to a situation where they would have no remedy if their fundamental rights were in any manner subjected to restrictions beyond those which are permitted by the Constitution itself. In various spheres, therefore, the courts intervened from time to time.

The other day when I was delivering a memorial lecture in Hyderabad on a very interesting subject the Interplay of Relation Between the Bar and the Bench and the Media', I mentioned that even though the Constitution makers had before them the Constitution of the United States, which said that the Congress shall enact no law which abrogates the freedom of speech and expression and the freedom of the press. In cur Constitution, article 19(1) (a), while it talks of the freedom of speech and expression, it does not elongate it to the freedom of the press or the media, because it is much wider with electronic media coming into the field and playing a very pronounced role. While speaking on that occasion I had mentioned that it was the Supreme Court of India, which gave the press what it enjoys today. By an interpretative process, it extended it to the freedom of the press and the media also. And time and again the Supreme Court intervened when the press was sought to be controlled, by taking away advertisements or by restricting the availability of paper etc. etc., saying that these are matters where reasonable restrictions can be placed, but the Supreme Court said no. So time and again the Supreme Court has intervened in various spheres and when it comes to the question of right to life and liberty it has perhaps played a very significant role to ensure that the rights and liberty of individuals are in no way jeopardized.

Now I move a little to the directive principles. If you see the directive principles you find, by and large, that they were intended to be the road signs in which the state would move and the development would take place. These road signs had some distances to cross and the terrain, which it had to cross, was a difficult one right to education for example. Because of constraints of finance the requirement of tree and compulsory education to the age of 14, for which 10 year time was fixed, did not take place till the Supreme Court intervened. And because of article 37 of the Constitution which says that the directive principles are not justifiable by a court of law, the Supreme Court had to find ways and means to ensure that these developments took place and to ensure that the executive and the legislature woke up from slumber.

How does it do it? It is a judicial discipline, and within the judicial discipline, if you can enforce that which our Constitution-makers had thought appropriate to enforce within a certain period of time. I think the court should not hesitate. And it did not hesitate. In the matter of education it read the principle into fundamental right under article 21. How does it do it? And that is where the question arises when one talks of the right to life. I put liberty a little away for the time being. Right to life and this is where the interesting question that arises: what do you mean by the word life? Does it mean mere vegetable existence till you breathe your right to life is safeguarded, or does it mean more than that? And this is where once again the judicial minds began to think that if life is restricted to mere vegetable existence, mere breathing, then this article has no meaning because then it only operates where somebody is sent to the gallows. And that they can do in accordance with due process, in accordance with procedure establish by law. So came a stage when the court began to think what is the dimension of the expression 'life'. One thing was very clear, it did not mean mere vegetable existence. So came the question: what are the inputs in deciding that this falls within the concept of 'life'? And those inputs came in gradually. The court said that life does not mean mere vegetable existence; it said it means all that which goes into the quality and enjoyment of life. Therefore, the emphasis shifted to quality of life. And it is in the context of that emphasis that the courts interpret, time and again, life to mean various things, various inputs which make living worth and not merely vegetable existence.

So, education was considered an essential element of intellectual development which is a part of life. Because life without intellectual development means a bit different. So intellectual development had to be an element of life although article 37 does not permit that because it does not make the directive principles justifiable. We read the right to education as a component of right to life as now the constraint of finance is over. What is unfortunately happening is that people have not bothered. Even after expiry of 10 or 40 years the state has not bothered to provide education to its children and, therefore, the Supreme Court said that the right to education is an element of the right to life we read it into this article 21 and directed its enforcement.

Today the right to education is judicially recognized as an element of fundamental rights; article 21 has become a reality and free education, though not still ' compulsory, is provided. But I am looking to the day when the element of compulsory education is also enforced because free education is only available to those who know that or who are alive to the fact that free education is provided and go to seek free education. It is not available to those who are totally ignorant about it. And in our country there is a vast mass of people who do not know their rights. You are now aware that many things have taken place under article 21. The court vision of article 21 has broadened from time to time. Environmental matters have been dealt with under article 21. We rarely notice the damage caused by as to the environment, the ozone etc. these are the matters which had to be dealt with by courts.

I do not want to go on enumerating the various spheres which the Supreme Court and the high courts have tried to expand and implement the fundamental rights, particularly the right to life and liberty, and I do hope that in times to come there will be further expansion so that we have the benefit of living in a society which is not a controlled society. Because, of late, what we see is the dilution of rights through factors other than law. By creating an atmosphere of insecurity, a dilution of rights is taking place because not many have the courage to stand up to it and insist on their fundamental right. I do understand their difficulties but if citizens do not fight for their fundamental right sand, remember one thing, it is essentially first the citizens who come into the picture. It is the citizens who bring it to the court, otherwise the court may not have the opportunity of safeguarding and expanding that right. Many of the rights have been expanded from time to time, and particularly the article 21, which has become possible for court to expand because essentially an enlightened citizen, a fearless citizen, has taken the courage to move the court against the executive. Mind you, in most of the cases it is citizen vs the state and, therefore, it is the citizen who is fighting the mighty state. When the state does not enforce the fundamental right, then only the citizen goes to court. It is the fundamental duty of the state to enforce the fundamental rights of citizens. If it performs that fundamental duty the citizen need not knock at the doors of the court. Therefore, the first credit goes to the citizen and it is only the second credit, which goes to the court, the Supreme Court or the high courts. So, this is what I encapsulated within the time permissible to me and I do hope, I may have cleared some of the cobwebs, which may exist in some minds.

 

Thank you.