This article is written by Divyapratap Parmar and Prachi Tandon, Law students at Institute of Law, Nirma University, Ahmadabad.
INTRODUCTION
The developments of the twenty first century have brought plethora of alterations in the vibrant democracy of India. Being home to uncountable linguistic and ethnic groups, India faces its own set of predicaments. The diversity it boasts about also opens a Pandora’s box for the nation in terms of overcoming barriers of not only language, culture and traditions but also for resources and opportunities. It thereby becomes all the more imperative to make the citizenry aware of their power, their rights which are limited yet preserved by the law of the land, the Constitution of India the realization of such rights which are also accompanied by a duty towards the nation helps in reduction of echo chambers of ignorance and partisan views.
PART III OF THE CONSTITUTION AND ITS INTERPLAY WITH FUNDAMENTAL DUTIES
Fundamental freedoms enshrined in Article 19 to Article 22 of our Constitution are the basic human rights guaranteed to the citizens of India to live a harmonious and peaceful life. These rights were included into the Constitution to ensure development of each and every individual irrespective of their religion, rase, caste or gender.[1] Article 13 of the Constitution provides that any law in derogation with fundamental rights is void, however these rights are subject to restriction if the grounds are reasonable and proportionate or for the greater good of the country and its people.[2] Courts in various judgements supported the view that fundamental rights can be altered, without hindering the essence of such rights.[3] Fundamental freedoms cannot be read in vacuum, they have to be seen and interpreted with context to the fundamental duties enshrined under Article 51-A of the Constitution as ‘privilege also entails responsibility’. The concept of Fundamental duties and Restrictions governing the exercise of fundamental rights has been founded upon the subservience of individual good to common good. A citizen must be cognizant of both his rights and his duties which make life in India in consonance with the principles enshrined in the preamble. This article is an attempt to sensitize the citizens about the perils of unfettered exercise of fundamental right and why our founding fathers included reasonable restrictions as a part of the Constitution.
INALIENABLE BUT NOT ABSOLUTE
Although, natural rights are commonly termed as inviolable and absolute, in reality they are limited by the requirements of universal order to which they are subservient.[4] In a civil society, desires of an individual have to be controlled and reconciled with the exercise of similar desires by others.[5] Indian courts acknowledging the autonomy secured to a person through these rights held that such autonomy is not absolute.[6] The fundamental rights can be abridged only by the observance of due procedure of law. Subsequent clauses of Article 19 provide the restrictions to the freedom guaranteed to the citizens, in various judgements it has been uniformly held that the restrictions are valid if imposed with reasonable and proportionate objective.[7]
TESTS OF REASONABLENESS AND PROPORTIONALITY
The limitations imposed on an individual should not be of arbitrary or excessive character beyond the requirement of public interest.[8] In order to determine the reasonableness of imposed restriction, its nature and procedure prescribed must be taken into consideration being a substantive part.[9] Furthermore, in ascertaining the reasonability of the restrictions, retrospectivity and delegation of administrative authority with control and safeguard is to be ensured.[10] Not only the determination of fulfilment of legitimate objective but also all the possible alternative must be considered before restricting the freedom of an individual. The restriction being in furtherance to the Directive principles are also considered reasonable as they are deemed to be in public welfare.[11] Hon’ble Supreme court in the case of Maneka Gandhi v. Union of India followed by many other cases, have applied the ‘effect test’ in order to determine the reasonableness of restrictions. The test suggests to consider the outcome which would then occur by applying to restriction, determining whether it is legitimate or arbitrary. The direct operation of the restriction being imposed by any order or law passed upon the rights helps in determining the reasonableness and need of the said restriction.[12] A proper balance needs to be sought between the restrictions and the freedoms therefore proportionality also needs to be considered. While reasonableness ensures the contention of the actions being deliberate and not arbitrary, the proportionality should also be ensured at the same time to check the balance. This suggests that the restrictions being imposed on the Fundamental Rights must be proportionate to the situation and the least restrictive measure of alternatives available. It is the real, direct and inevitable effect and not the remote effect of the restriction on the Fundamental right which is to be considered.[13] Conclusively, these restrictions seek to draw a reasonable balance betwixt the freedom of a person and desired constrain. These rights are analogous to the American fundamental rights, therefore there exists some resemblance in both, freedom in our country covers a much broader scope and is articulated in depth.[14] The Bill of Rights, United States has served as a bulwark to counter exploitation from the government, promoting a free and liberalised regime. While Fundamental Rights in the Indian constitution provides the same ensuring the freedom while maintaining the balance between power of individual and Government. International conventions such as International Covenant on Civil and Political Rights (ICCPR) and Universal Declaration of Human Rights (UDHR) have also recognised the exigency of placing limitation over liberty granted to individuals.
CONCLUDING REMARKS
The need for placing limitations upon the unfettered rights of an individual is quintessential to preserving the society as a whole. A restriction imposed on any fundamental right with the aim of observing the obligations of the state under Part IV of the Constitution may be deemed as reasonable as the state plays the role of ‘parens patriae’ in India. An individual must exercise his rights in such a manner so as not to interfere with the right of others, therefore the restrictions are necessary. However, the restrictions must be reasonable and not excessive otherwise it will take away the very purpose of giving the right. As per Hoffield analysis a person having right, also have a duty not to interfere with others right hence reasonable restrictions are necessary.
[1] Rajbir Singh, Fundamental Rights Enshrined in Indian Constitution 70 IJPS 782 (2009). [2] Srivastava, Romit, Test to Determine Reasonable Restrictions Under Article 19 of the Constitution of India, 1 SSRN (2012). [3] Kesavananda Bharati v. State of Kerala & Anr., (1973) AIR 1973 SC 1461., See also, Minerva Mills Ltd. & Ors. v. Union of India & Ors., (1980) AIR 1980 SC 1789.; I. R. Coelho v. State of Tamil Nadu & Ors,, (2007) AIR 2007 SC 861. [4] Heinrich Rommen, The Natural Law 253(1st ed. 1936). [5] A.K. Gopalan v. State of Madras & Ors., (1951) AIR 1951 SC 21. [6] M.C.V.S. Arunachala Nadar v. State of Madras & Ors.,(1958) 1959 AIR 300. [7] B.K. Sharma, Introduction to Constitution of India 60 (6th ed. 2011). [8] A. K. Jain, Constitutional Law of India (2nd ed. 2009). [9] Golak Nath v. State of Punjab & Ors. (1967) AIR 1967 SC 1643. [10] Municipal Corp. v. Jan Mohd. Usmanbhai. (1986) 2 SCC 20. [11] Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 1980 AIR 1992. [12] Maneka Gandhi v. Union of India & Ors., (1978) 1978 AIR 597. [13] Express Newspapers v. Union of India, (1958) AIR 1958 SC 578. [14] Arpana Chandra, Proportionality in India: A Bridge to Nowhere, 3 OHRH 56,59 (2020).
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