Fundamental Rights or Fundamentally Right?

The Founding Fathers of our Constitution had a gargantuan task of drafting what turned out to be the most extensive written Constitution in the world. When the Constituent assembly was handed over this huge responsibility - I wonder what would have taken the most time; the most brainstorming by the Drafting committee and most of all, the Chairman, the Great Dr.B.R Ambedkar.

I am about to hazard a guess. May be it was 'Part III of the Constitution'**** and Why do I say so? Well, in the words of Ambdekar himself ----Article 32 is “the very soul of the constitution,and the very heart of it”
 

It is thus evident  that the Constitution fathers had the protection of the 'Human' rights'-fundamental in nature foremost on their minds.

 

Time Travel-9 DECEMBER 1946 [1]

 

Well, for reference, available at that time were two important sources. First of course, the Constitution of the USA, not only being the representative of a fiercely Democratic country but also because of the huge advantage of about 200 yrs of 'experience' of test in the real dealings of running a nation.[2]

The other was of course our imperialistic cousins so to say. The English Constitution could not be ignored for reasons embedded in history as most of our constitution was extracted in multiple ways from the voluminous Government of India act 1935.[3]
 

What however was daunting ,was the huge chasm between Judicial Supremacy as existed in USA as compared to the Parliamentary supremacy visible in England.

Let’s travel further...
 

The American constitution was not only worried about possibility of tyranny by the Executive but also was wary of the Legislature. Therefore the ‘Bill of Rights ‘[4] was zealously guarded by the Supreme Court in a way that as a matter of legal fiction, if at any stage the Congress was to formulate a legislation which would by the smallest fraction transgress upon the Bill of Rights - the Supreme Court would strike it down as void. This implies a complete and unquestionable Judicial Supremacy.

Now let’s cross the Atlantic !

The English Constitution is an ‘unwritten Constitution’. It has to be appreciated that under the English Law, the Parliament has been given unfettered powers to formulate the law which cannot be challenged in any court of law.
In the way of speaking, under the English law, a citizen is free to do anything unless he violates a law as formulated by the legislature.

 

The 'rights' therefore have a negative connotation rather than requiring enforcement. The citizen has to be bothered of violating existing laws for the rest of the issues he is free for all practical reasons.

Where does that leave India?

The Constitution-makers in their wisdom decided to take a way somewhat in the middle? May be seeking the best way possible.

 

Our system envisages the fundamental rights in Part III of the Constitution with Article 13 inter alia putting it in to words, such as – ‘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’

Also a fundamental right vested by the Constitution is the access to Constitutional remedy U/A 32 where in the Supreme Court can be approached if any legislation or execution action violates any of the fundamental rights guaranteed by the Constitution.[5]

So where does that leave the Parliament?

Well,here is the bone of the contention, speaking figuratively. Under Article 368, the Constitution gives itself the power to be amended as per the requirements and needs of the times natural to an evolving nation and democracy.[6]

What however stood the test of time was the fundamental rights in Part III were considered unalterable, inalienable part of the Constitution and not open to amendment.

This changed drastically after the ‘Golak Nath case’[7] and the series of Constitutional amendments which sought to amend Article 368 itself which according to the legislation can amend any part of the Constitution including the one dealing with fundamental rights also.

What saved the day?

It was the famous ‘Kesavnanda Bharati Case’[8] and the Indian citizens better remember this judgement by heart because by this judgement the Supreme Court held supreme the 'Basic Structure Doctrine'.Once and for all time to come a 13 Judge Bench over ruled Golak Nath case and decided that no amendments whatsoever would pass the muster if it transgresses in any way the ‘Basic structure of the Constitution’[9]. This was a way in which the Judiciary came down heavily on any attempt of legislative misadventure of altering Constitution to suit their whims if at all which is not in keeping with the ideals of the fathers of our Constitution.The same principle was concretized in the Minerva Mills case[10].
 

CONCLUSION

Our Constitution is a unique arrangement in which the Parliament has been given eminence and even supremacy to a certain extent in legislating and formulating laws for this great nation. However what is also guarded zealously by our judiciary is that 'Judicial Review' is an integral part of our constitution. And any attempt to alter the constitution, which tries to abridge or transgress the Basic Structure Doctrine of the Constitution of our country will we struck down and held void.
What this system envisions and promises is a dynamic Democracy in keeping with the changing times and holding high the ideals of the past.
It is the fine balance between the Legislative 'powers' of the Parliament and the 'Judicial review ' of the Courts which is the lifeline of the Dream called India.

 

Reference:
*** http://indiacode.nic.in/coiweb/coifiles/p03.htm

[1]Under the Cabinet Mission Plan of 1946, elections were held for the first time for the Constituent Assembly.

[2] The U.S. Constitution established America'snational government and fundamental laws, and guaranteed certain basic rights for its citizens. It was signed on September 17, 1787, by delegates of the Constitutional Convention in Philadelphia, presided over by George Washington.

[3] The Government of India Act 1935 was originally passed in August 1935 (25 & 26 Geo. 5 c. 42), and is said to have been the longest (British) Act of Parliament ever enacted by that time.

[4] Encompassed in the first ten amendments of the Constitution of the USA.

[5] The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

[6] Article 368-'Power of Parliament to amend the Constitution and procedure therefor'.

[7] Supreme Court of India I. C. Golaknath & Ors vs State Of Punjab & Anr  on 27 February, 1967

[8] Supreme Court of India Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973

[9] The Basic structure doctrine was further clarified in Minerva Mills v. Union of India. The 42nd Amendment had been enacted by the government of Indira Gandhi in response to the Kesavananda Bharati judgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court.

[10] The doctrine was expanded in the Minerva Mills case of 1981. In Minerva Mills Ltd. v. Union of India,the Supreme Court  declared that Clauses (4) and (5) of Article 368 of the Constitution are invalid.