THE SUPREME COURT AND FUNDAMENTAL RIGHTS

Transcription

1 1 THE SUPREME COURT AND FUNDAMENTAL RIGHTS M.P. Jain The Declaration of the French Revolution, 1789, which may be regarded as a concrete political statement on human rights, declared: 'The aim of all political association is the conservation of the natural and inalienable rights of man'. The preamble to the Universal Declaration of Human Rights declares, inter alia: 'Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world...' The concept of human rights has a respectable pedigree; it can be traced to the Natural Law thinking of the seventeenth century. The Natural Law philosophers, such as Locke and Rousseau, philosophized over such inherent human rights and sought to preserve these rights by propounding the theory of social compact. 1 The concept of human rights represents an attempt to protect the individual from oppression and injustice. In modern times, it is widely accepted that the right to liberty is the essence of a free society and that it must be safeguarded at ^ee Lloyd's Introduction to Jurisprudence (1985), The American Constitution went on to embody Lockean ideas about the protection of life, liberty and property. See B. Bailyn, Ideological Origins of the American Revolution (1967).

2 2 FIFTY YEARS OF THE SUPREME COURT all times. The idea of guaranteeing certain freedoms is to ensure that a person will have a minimum guaranteed freedom. The underlying idea is to remove certain basic and fundamental values out of the reach of transient political majorities. The concept of basic rights protects a person against oppression and injustice and against excesses by the State. The framers of the US constitution in 1787 were the first to give concrete shape to the concept of human rights by putting these rights into the constitution, and making them justiciable and enforceable through the instrumentality of the courts. 2 During the British regime in India, human rights were widely violated by the rulers. Therefore, the framers of the Constitution, most of whom had suffered long incarceration under the British, had a very positive attitude towards these rights. Accordingly, human rights were incorporated in the Constitution under the title of 'Fundamental Rights' in Part III, articles 12 to 35. In his closing address to the Constituent Assembly, Dr B.R. Ambedkar emphasized that the principles of liberty, equality and fraternity were not to be treated as separate entities but as a trinity. They formed the union or trinity in the sense that to divorce one from another was to defeat the very purpose of democracy. Liberty couid not be divorced from equality. Equality could not be divorced from liberty. Nor could equality and liberty be divorced from fraternity. Without equality, liberty would produce supremacy of law. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality would not become a natural course of things. Accordingly, the Constitution puts due emphasis on equality, fraternity and liberty. The preamble declares that the Constitution of India has been adopted by the people to promote justice, liberty, equality, and fraternity. Several constitutional provisions amongst the fundamental rights also protect these values. The entrenched fundamental rights have a dual aspect. From one point of view, these rights confer justiciable rights on the people which can be enforced through the courts. From another point of view, the fundamental rights constitute restrictions and 2 The original Constitution did not contain any fundamental rights. In response to the public criticism, fundamental rights were incorporated in the Constitution through the first ten amendments immediately after the Constitution was ratified and became operational.

3 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 3 limitations on governmental action. The government cannot take any action, administrative or legislative, by which a fundamental right may be infringed. Entrenchment means that the guaranteed rights cannot be taken away by an ordinary law; such a law curtailing or infringing an entrenched right would be declared to be unconstitutional. If ever it is thought desirable to curtail an entrenched right, that can be done only by the elaborate and more formal procedure by way of constitutional amendment. 3 The Supreme Court discharges a multi-faceted role in relation to the fundamental rights. In the first place, it acts as the protector and guardian of these rights. In the second place, it acts as the interpreter of fundamental rights and in the third place, it has been seeking to integrate directive principles with fundamental rights. In this essay, each of these three major trends is discussed at some length. Supreme Court as Guardian of Fundamental Rights As the protector and guardian of fundamental rights, from the very beginning the Supreme Court has adopted the stance that it acts as the 'sentinel on the qui vive' vis-a-vis fundamental rights and has stressed this role in several cases. The Constitution underlines this role of the court through article 32(1), which reads: The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this article. The Constitution-makers made the right of a citizen to move the Supreme Court under article 32, and claim an appropriate writ against the unconstitutional infringement of his fundamental rights, itself a fundamental right. Commenting on this role entrusted to itself, the court observed in Daryao v State of Uttar Pradesh: 3 On the question of amendment of fundamental rights in India, see infra.

4 4 FIFTY YEARS OF THE SUPREME COURT The fundamental rights are intended not only to protect individual's rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic wav of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself. 4 In the very first year of the Constitution coming into force, the Supreme Court emphasized in Romesh Thappar v State of Madras, 5 that 'this Court is thus constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights.' The protective role of the Supreme Court, has in course of time manifested itself in the following ways, namely (a) declaration of a law as unconstitutional in case it comes in conflict with a fundamental right; (b) prohibition on an individual from bartering away his fundamental rights; (c) non-amendability of the constitutional provisions guaranteeing fundamental rights; (d) protection of its own protective function from being demented either by legislation or constitutional amendment. A few words need be said to explain each of these aspects. Constitutionality of a Statute Article 13 gives teeth to the fundamental rights and makes them justiciable. Article 13(2) declares that the State 'shall not make any law' which takes away or abridges the fundamental rights: and a law contravening a fundamental right is, to the extent of the contravention, void. The effect of article 13 is that the fundamental rights cannot be infringed by the government. It is the function of the court to assess individual laws vis-a-vis the fundamental rights so as to ensure that no law infringes a fundamental right. The court performs the onerous task of declaring an Act of the legislature unconstitutional if it infringes a fundamental right. 4 AIR 1961 SC 1457 at AIR 1950 SC 124.

5 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 5 Fundamental rights are claimed mostly against the State, and the State is defined by article 12 in an expansive manner, to include the government and Parliament of India, the government and the legislature of a state, and all local or 'other authorities 1 within the territory of India. The actions of these bodies comprised within the term State can be challenged before the courts on the ground of violating fundamental rights. It is obvious that the wider the meaning given to the term 'other authorities' in article 12, the wider will be the coverage of fundamental rights, i.e. more and more bodies can be brought within the discipline of fundamental rights. The court has the function of ensuring that no statute violates a fundamental right. A statute is declared unconstitutional and void if it conflicts with a fundamental right. A void statute is unenforceable, non-est, devoid of any legal force; courts take no notice of such a statute. 6 Article 13 is the key provision as it makes fundamental rights justiciable. It confers a power, and imposes an obligation, on the courts to declare a law void if it is inconsistent with a fundamental right. This is a power of great consequence for the courts. The Supreme Court figuratively characterized this role of the courts as that of a 'sentinel on the qui vive\ 7 The courts do not declare a statute unconstitutional lightly, generally leaning towards the constitutionality of a statute on the premise that a legislature understands the needs of the people. To adjudicate whether a statute is inconsistent with a fundamental right, the Supreme Court has expounded several formulae and, speaking generally, the particular formula which may promote the validity of the statute in question, may be adopted by the court in the specific situation. One such formula is that a law cannot be challenged under a fundamental right unless the law is directly in respect of the fundamental right concerned. Thus, a law can be attacked under article 19(l)(a) (freedom of speech), if it directly abridges the freedom of speech; but if it b Behram v State of Bombay AIR 1955 SC 123; State of Gujarat v Shri Ambica MiUs AIR 1974 SC State of Madras v VG Row AIR 1952 SC 196.

6 6 FIFTY YEARS OF THE SUPREME COURT touches the article only incidentally or indirectly, it cannot be challenged under this article. 8 Another test applied in some cases, very much like the above test, is that of 'pith and substance'. It involves determining what is the 'pith and substance' of the law in question and which fundamental right does it affect. 9 In some cases, the test of 'real effect and impact' of the impugned legislation on the fundamental right in question has been applied. 10 Clearly, the Supreme Court keeps a number of options open to itself. This gives to the judicial review some flexibility and elasticity and to the courts a good deal of manoeuvrability in discharging their function of judicial review. Waiver of Fundamental Rights Early in the day, the Supreme Court was faced with the question: can a person waive any of his fundamental rights? To begin with, Venkatarama Ayyar, J, in Behram v State of Bombay,'' divided the fundamental rights into two broad categories: rights conferring benefits on individuals, and rights conferring benefits on the general public. The judge opined that a law would not be a nullity but merely unenforceable if it was repugnant with a fundamental right in the former category, and that the affected individual could waive such an unconstitutionality, in which case the law would apply to him. For example, the right guaranteed under article 19(l)(f) was for the benefit of property-owners. When a law was found to infringe this provision it was open to any person whose right had been s Naresh v State of Maharashtra AIR 1967 SC 1. Also see Ram Singh v State of Delhi AIR 1951 SC 270. For discussion on article 19(1 )(a)" see infra. 9 See State of Bombay v RMDC AIR 1957 SC 699. Also Dwarkadas v Sholapur Mills AIR 1954 SC 119. l0 See In re the Kerala Education Bill AIR 1958 SC 956; Express Newspapers v India AIR 1958 SC 578; R.C. Cooper v Union of India AIR 1970 SC 564; Sakal Papers v Union of India AIR 1962 SC 305. n Supra, note 6.

7 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 7 infringed to waive his fundamental right. 12 In case of such a waiver, the law in question could be enforced against the individual concerned. The majority on the bench, however, repudiated this view, holding that the fundamental rights were not put in the Constitution merely for individual benefit. These rights were there as a matter of public policy and, therefore, the doctrine of waiver could have no application in case of fundamental rights. A citizen could not invite discrimination by telling the State 'you can discriminate', or get convicted by waiving the protection given to him under articles 20 and Waiver of fundamental rights was discussed more fully by the court in Basheshar Natb v Income-tax Commissioner. 1 * The case was referred to the Income-Tax Investigation Commission under section 5(1) of the relevant Act. After the commission had decided upon the amount of concealed income, the petitioner agreed on 5 September 1954, as a settlement, to pay in monthly instalments over Rs 3 lak by way of tax and penalty. In 1955, the court declared section 5(1) ultra vires article 14. The petitioner thereupon challenged the settlement between him and the commission, but the plea of waiver was raised' against him. The court upheld the petitioner's contention, but in their judgements the judges expounded several views regarding waiver of fundamental rights: 1. Article 14 cannot be waived, it being an admonition to the State as a matter of public policy with a view to implement its object of ensuring equality. No person can, therefore, by act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. 2. A view, somewhat broader than the first, was that none of the fundamental rights can be waived by any person. The fundamental rights are mandatory on the State and no citizen can by his act or conduct relieve the State of the solemn 12 Article 19(l)(f), which was repealed in 1978, guaranteed to the Indian citizens a right to acquire, hold and dispose of property. Article 19(5), however, permitted the State to impose by law reasonable restrictions on this right in the interests of the general public or for the protection of the interests of any Scheduled Tribes. 13 For comments on article 21, see infra. 14 AIR 1959 SC 149.

8 8 FIFTY YEARS OF THE SUPREME COURT obligation imposed on it. A large majority of the people in India are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the State and, therefore, it is the duty of the judiciary to protect their rights against themselves. 3. The minority took the view that an individual could waive a fundamental right which was for his benefit. This was reiteration of the view expressed by Venkatarama, J, as stated above. In view of the majority decision, it is now established that an individual cannot waive any of his fundamental rights. 15 This proposition has been applied in a number of cases. For example, the Bombay High Court has stated: 'The State cannot arrogate to itself a right to commit breach of the fundamental rights of any person by resorting to principles of waiver or estoppel or other similar principles'. 16 Similarly, the Gauhati High Court has explained that the fundamental rights have been embedded in the Constitution not merely for the benefit of a particular individual but also as a matter of constitutional policy and for public good, and, therefore, the doctrine of waiver or acquiescence cannot be applied thereto. Ά citizen cannot voluntarily get discrimination or waive his fundamental right against discrimination' as the right of not being discriminated against is enshrined in article 14 and is a fundamental right. 17 It may be of interest to know that in the USA, a fundamental right can be waived. 18 The doctrine of non-waiver developed by the Supreme Court of India is a manifestation of its role of protector of the fundamental rights. Fundamental Rights and Constitutional Amendment From time to time, since the inauguration of the Constitution, the question has arisen whether fundamental rights can be diluted 15 N.L. Nathanson, 'Waiver of Constitutional Rights in Indian and American Constitutional Law', 4 JILI (1962) TousufAUAbdulla Fazatbhoy v M.S. Kasbekar AIR 1982 Bom 135 at Omega Advertising Agency v State Electricity Board AIR 1982 Gau 37. ls Pierce Oil Corporation v Phoenix Refining Co. 259 U.S. 125 (1922); Boykin v Alabama, 395 U.S. 238 (1969); also supra, note 15.

9 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 9 or taken away by a constitutional amendment. This question pertains to the 'protective' role of the Supreme Court because apprehension has been expressed that if the fundamental rights are held to be amendable, then, in course of time, all fundamental rights may be abolished and a democratic system may thus be converted into a dictatorial regime. Within a year of the Constitution coming into force, in Shankan Prasad Singh v Union ofindia, ]9 the question was raised whether the Constitution (First Amendment) Act, 1951, seeking to curtail the right to property guaranteed by article 31, 20 was constitutionally valid. The argument against its validity was that article 13(2) prohibited enactment of a law infringing or abrogating a fundamental right. The word 'law' in article 13(2), it was argued, included any law, even a law amending the Constitution and, therefore, the validity of such a law could be assessed with reference to the fundamental rights which it could not infringe. 21 Adopting a literal interpretation of the Constitution, 22 the court rejected the argument and ruled that article 13 referred to a 'legislative' law, i.e. an ordinary law made by a legislature, but not to a 'constituent' law, i.e. a law made to amend the Constitution. The fundamental rights were not immunized from the process of constitutional amendment under article 368. These rights were immune only against an ordinary law, i.e. a law made under legislative powers, outside article 368. Article 13 must be read subject to article 368, and, thus, the court disagreed with the view that the fundamental rights were sacrosanct, inviolable and beyond the reach of the process of constitutional amendment as laid down in article 368. The court adopted a similar view in 1964 in Sajjan Singh v State of Rajasthan 23 when it upheld the validity of the Constitution 19 AIR 1951 SC See infra. 21 Article 13(2) reads: '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.' (emphasis added) 22 This was the period, as is clear from Gopalan in 1950, when the Supreme Court was prone to adopt a literal, rather than a liberal, interpretation of the Constitution. For Gopalan, see infra. 23 AIR 1965 SC 845.

10 10 FIFTY YEARS OF THE SUPREME COURT (Seventeenth Amendment) Act, 1964, again adversely affecting the fundamental right to property. 24 The majority reiterated the conclusion of the court on the question of relationship between article 13 and article 368, as expressed in Shankari Prasad. The majority refused to accept the argument that fundamental rights were 'eternal, inviolate, and beyond the reach of article 368'. The majority again distinguished between an Ordinary law' and a 'constitutional law' made in exercise of 'constituent' power and held that only the former, but not the latter, fell under article 13. But the minority raised doubts whether article 13 would not control article 368. Hidayatullah J, observed: Ί would require stronger reasons than those given in Shankari Prasad's case to make me accept the view that fundamental rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States' because 'the Constitution gives so many assurances in Part ΙΠ that it would be difficult to think that they were playthings of a special majority.' 25 Mudholkar, J, another minority judge, was not sure whether article 13 excludes an amendment act and whether it was competent to Parliament to make any amendment at all to Part ΙΠ of the Constitution. But he adopted a much broader argument. His basic argument was that every constitution has certain fundamental features which could not be changed. As will be seen, Golak Nath, the next case, was based on Justice Hidayatullah's argument of non-amendability of fundamental rights while Kesavananda was based on Justice Mudholkar's argument of basic features. Golak Nath 26 arose in Eleven judges participated in the decision and they were divided 6:5. Again, the constitutional validity of the Seventeenth Constitutional Amendment affecting property rights was questioned. The majority now changed its stance and cried halt to the process of amending fundamental rights through the constitutional amending procedure under article 368, over-ruling the earlier judgements in Shankari Prasad and Sajjan Singh. The majority now adopted the view that the 24 See infra under 'Demise of Property Right'. 2S Supm, note 23 at I.C. Golak Nath v State of Punjab AIR 1967 SC 1643.

11 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 11 fundamental rights, embodied in Part III of the Constitution, had been given a 'transcendental position' by the Constitution, so that no authority functioning under the Constitution, including Parliament exercising the amending power under article 368, would be competent to amend the fundamental rights. The fundamental rights fell outside the amendatory process if the amendment sought to abridge or take away any of these rights. The majority refused to accept the thesis that there was any distinction between 'legislative' and 'constituent' process. The majority went even further and asserted that the amending process in article 368 was merely 'legislative' and not 'constituent' in nature. This was the crux of the whole argument. On the other hand, the minority upheld the power of Parliament to amend fundamental rights. The minority stuck tó the arguments which had already been developed in Shankari. Prasad and Sajjan Singh? 1 The question of amendability of fundamental rights came before the court once again in Kesavananda Bharati v State of Kerala. 28 The court now ruled by majority that Parliment is competent to amend under article 368 fundamental rights just as any other part of the Constitution, subject to the doctrine that the 'basic' or 'fundamental' features of the Constitution cannot be amended. The majority ruled that while Parliament can amend any constitutional provision by virtue of article 368, such a power is not absolute and unlimited and that the courts can still go into the question whether or not an amendment destroys a fundamental or basic feature of the Constitution. An amendment which does so will be constitutionally invalid. The justification for this view is that article 368 uses the expression 'amend', which has a restrictive connotation, and cannot comprise a fundamental change in the Constitution. The formulation 'amendment of the Constitution in article 368 could not have the effect of destroying or abrogating the basic structure of the Constitution' means that while fundamental rights en bloc may not be regarded as nonamendable, some of these rights may be characterized as constituting the 'basic' feature of the Constitution, and hence are non-amendable. Therefore, while the Golak Nath formulation was 27 For a fuller discussion on Golak Nath, see M.P. Jain, Indian Constitutional Law (1987), AIR 1973 SC 1461.

12 12 FIFTY YEARS OF THE SUPREME COURT rigid in so far as it rendered all fundamental rights nonamendable, the Kesavananda ruling is somewhat flexible, leaving it for the court to decide from case to case which fundamental right is to be treated as a 'basic' feature. The right to property has not been treated as such and, therefore, it has been abrogated. 29 On the other hand, the right to personal liberty (article 21) 30 or the right to equality (articles 14 and 15) 31 may be regarded as 'basic' features of the Constitution. This question has not so far arisen before the Supreme Court. The doctrine of 'basic' features has now been very well established in Indian constitutional jurisprudence and has been reiterated in several cases. 32 It is also worth noting that since 1973 (Kesavananda case), Parliament has not attempted to curtail or abrogate any fundamental right, which may be regarded as the effect of the court ruling. Kesavananda constitutes the high watermark of judicial creativity. In retrospect, it would appear that the court adopted the technique of literal interpretation of the Constitution in Shankari Prasad and Sajjan Singh and, thus, concluded that there were no restrictions on the amending power. Things changed, however, when Subba Rao, CJ, took over the leadership of the court and had an opportunity to preside over the bench deciding Golak Nath. The decision on the question whether the amending power should be restricted or not involved a high policy-making function on the part of the judiciary It was not a question which could be decided merely by resorting to logical arguments, as arguments could be found on both sides of the line. It was a conscious 'policy' decision of the court, first in Golak Natb, and then in Kesavananda, to read implied limitations on the amending power in order to preserve what the court thought to be the basic, central, core of the Constitution against the onslaught of a transient majority in Parliament. Several judges of the court were convinced that certain ideals and values in the Constitution should be preserved, and not destroyed by any process of consti- 29 See infra, under 'Demise of Property Right'. 30 For discussion on article 21, see infra. 31 For discussion on these provisions, see infra. 32 See Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299; Minerva Mills Ltd v Union of India AIR 1980 SC 1789; Woman Rao v Union of India AIR 1981 SC 271.

13 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 13 tutional amendment. The Constitution is based on the national consensus. Should such a Constitution be amendable merely by a two-thirds vote in Parliament when the truth is that two-thirds in the Lok Sabha does not represent a very broad national consensus, as not more than 46 per cent electorate votes at a parliamentary election and the Rajya Sabha has no popular mandate? The philosophy underlying the doctrine of non-amendability of the basic features of the Constitution, evolved by the majority in Kesavananda, has been aptly explained by Hegde and Mukherjee, JJ, as follows: Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change. Likewise, a constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. 33 Judicial Review Another crucial dimension of the 'protective' function of the Supreme Court is the proposition laid down by it that judicial review is a 'basic' feature of the Constitution. Protection of the institution of judicial review is crucially interconnected with the protection of fundamental rights, for depriving the court of its power of judicial review would mean that the fundamental rights become non-enforceable, 'a mere adornment', as they will become rights without remedy. 34 As Khanna, J, emphasized in Kesavananda: 3i Supra note,28 at The US constitution does not specifically provide for judicial review. But, as early as 1803, in Marbury v Madison 1 Cranch 137, the Supreme Court asserted that it would review the constitutionality of the congressional Acts. Marshall, CJ, expounded the theory of judicial review of the constitutionality of Acts of Congress as follows: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

14 14 FIFTY YEARS OF THE SUPREME COURT As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened... Judicial review has thus become an integral part of our constitutional system In Minerva Mills, Chandrachud, CJ, speaking for the majority, observed: It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If Courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled. 36 In his minority judgement, Bhagwati, J, observed: It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that 'the exercise of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law'. The power of judicial review is an integral part of our constitutional system... the power of judicial review... is unquestionably... part of the basic structure of the Constitution. 37 Ahmadi, CJ, speaking on behalf of a bench of seven judges in L. Chandra Kumar v Union of India has recently observed: The Judges of the superior Courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations... We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test the constitutional validity of legislation can never be ousted or excluded. 38 3S Supra, note Sttpra, note Ibid. at AIR 1997 SC 1125 at

15 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 15 Thus, the position now is that in respect of the power of judicial review, the jurisdiction of the high courts under articles 226 and 227 cannot be excluded even by a constitutional amendment. The same principle applies to the power of the Supreme Court under article 32. Accordingly, the Supreme Court has declared unconstitutional clause 2(d) of article 323A and clause 3(d) of article 323B, to the extent they exclude jurisdiction of die high courts and the Supreme Court under articles 226, 227 and The court has observed in this connection: The jurisdiction conferred upon the High Courts under Articles 226/ 227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution By ensuring that judicial review is an inseparable part of the Constitution, and that it cannot be excluded even by a constitutional amendment, the Supreme Court has ensured that the fundamental rights ever remain enforceable. Supreme Court as Interpreter of Fundamental Rights As Bhagwati, J, observed in State of Rajasthan v Union of India, the Supreme Court is the 'ultimate interpreter' of the Constitution. 'It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law' 42 As the interpreter of the fundamental rights provisions in the Constitution, the court has, by and large, interpreted these provisions in a liberal manner. The court has laid emphasis on this aspect from time to time. For instance, in Pathumma v State of Kerala* 1 the court stated: 'This Court while acting.as a sentinel on the qui vive to protect fundamental rights i 39 Ibid. at ^L. Chandra Kumar v Union of India, supra, note Ibid. at AIR 1977 SC 1361 at AIR 1978 SC 771 at 774.

16 16 FIFTY YEARS OF THE SUPREME COURT guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society... The court added in Pathumma that in inter-preting the Constitution, 'the judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.' In Mctneka Gandhi v Union of India, 44 the court observed: 'The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights rather than to attenuate their meaning and content by a process of judicial construction.' In interpreting the fundamental rights, the Supreme Court has displayed judicial creativity of a high order. Out of the innumerable creative opinions delivered by the court, a few are mentioned below. The high-water mark of judicial creativity was reached in such cases as Golak Nath, Kesavananda Bharati and Maneka Gandhi. The court does not seek to conceal its lawcreative role in the area of constitutional jurisprudence. It avowedly advocates that it seeks to play such a role. For example, in Golak Nath, Subba Rao, CJ, claimed openly a law-making role for the Supreme Court in the following words:... Articles 32, 141.and 142 are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice... To deny this power to the Supreme Court on the basis of some outmoded theory that the court only finds the law but does not make it is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. 4S This attitude of the court has had a very healthy and profound influence on the development and delineation of fundamental rights in several ways. One, in course of time, the court has been able to expand generally the scope of several fundamental rights. Two, the most dramatic expansion has taken place with respect to the protection of life under article Three, the court has "AIR 1978 SC 597. * 5 Supra, note 26 at The court is here referring to the outmoded theory, which prevailed in Britain for long, that the judges only declared the law but did not make law. This declaratory theory of judicial process has now been discarded even in Britain. The general consensus of opinion at the present day is that new law is created by the judiciary. See Lloyd's Introduction to Jurisprudence (1985), "^For discussion on article 21, see infra.

17 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 17 implied certain fundamental rights in addition to what are specifically stated in the Constitutiion. 47 Each of these aspects is discussed below separately. Forced, Bonded and Child Labour Articles 23 and 24, though fundamental rights, lay dormant for almost thirty-two years and were hardly ever invoked by any litigant. Since 1982, however, these articles have assumed great significance and have become potent instruments in the hands of the Supreme Court to ameliorate the pitiable condition of the poor labourers in the country. Article 23(1) prohibits traffic in human beings, begar and similar other forms of forced labour. Any contravention of this provision 'shall be' an offence punishable in accordance with law. The term begar means compulsory work without any payment. For example, withholding the pay of a government employee as a punishment has been held to be invalid in view of article 23 which prohibits begar. 'To ask a man to work and then not to pay him any salary or wages savours of begar. It is a fundamental right of a citizen of India not to be compelled to work without wages.' 48 The expression 'traffic in human beings', commonly known as slavery, implies buying and selling of human beings as if they are chattels, and such a practice is constitutionally abolished. Traffic in women for immoral purposes is also covered by this expression. 49 A significant feature of article 23 is that it protects the individual not only against the State but also against other private persons. The Supreme Court has given an expansive significance to the term 'forced labour' used in article 23 in a series of cases, beginning with the Asiad case in It has insisted that this article is intended to abolish every form of forced labour even if it has origin in a contract. It strikes at forced labour in whatever 47 See infra. 4S Suraj v State of Madhya Pradesh AIR 1960 MP Raj Bahadur v Legal Remembrancer, Govt. of West Bengal AIR 1953 Cal 522; Shama Bat v State of Uttar Pradesh AIR 1959 All People's Union for Democratic Rights v Union of India AIR 1982 SC 1473.

18 18 FIFTY YEARS OF THE SUPREME COURT form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. Even if remuneration is paid, labour supplied by a person would be hit by article 23 if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion. Giving a very expansive interpretation to article 23, the court has ruled that payment of wages less than the minimum wages amounts to forced labour. Bhagwati, J, has argued that ordinarily no one would willingly supply his labour for less than the minimum wages; he will do so only under the force of some compulsion. Bhagwati, J, has emphasized that 'force' which would make labour or service 'forced labour' may arise in several ways. It may be physical force compelling a person to provide labour or service to another; or force exerted through a legal provision, such as a provision for imprisonment or fine for failure to provide forced labour or service; or even 'compulsion arising from hunger and poverty, want and destitution'. Any factor depriving a person of a choice of alternatives and compelling him to adopt one particular course of action may properly be regarded as force and if labour or service is compelled as a result of such 'force', it would amount to 'forced labour'. In the words of Bhagwati, J: Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed'his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate, the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly 'forced labour.' 51 Therefore, emphasized Bhagwati, J, there is no reason why the word 'forced' in article 23 should be read in a narrow and restricted manner so as to he confined only to 'physical or legal Ibid, at 1491.

19 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 19 force'. The word 'force' ought to be interpreted to include not only physical or legal force but also force arising from the compulsion of economic circumstances 'which leave no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage'. Thus, a complainant can come to the court that he is not being paid minimum wages by the government contractors. He can come to the court for enforcement of his fundamental right under article 23 and the court can direct payment of minimum wage to him. But the court also emphasized that it is the constitutional obligation of the State to ensure that the fundamental right of people is not violated, 'particularly when he belongs to the weaker section of humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him'. The Supreme Court has ruled in Sanjit Roy v State of Rajasthan si that even those persons who were employed on famine relief work should be paid the legal minimum wages and not less, as that would be invalid under article 23. Bhagwati, J, insisted, after referring to his ruling in Asiad, that every person providing labour or service to another is entitled at least to the minimum wage. He emphasized that article 23 'is intended to eradicate the pernicious practice of "forced labour" and to wipe it out altogether from the national scene'. Rejecting the argument of the State that it was endeavouring to provide relief to the persons affected by drought and famine and that its potential to help people would be reduced if it were made to give the legal minimum wages to the workers, Bhagwati, J, observed: The State cannot be permitted to take advantage of the helpless condition of the affected persons and extract labour or service from them on payment of less than the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of persons who are reduced to a state of helplessness on account of drought and scarcity conditions. The state cannot under the guise of helping these affected persons extract work of utility and value from them without paying them the minimum wage. Whenever any labour or service is taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, 52 AIR 1983 SC 328.

20 20 FIFTY YEARS OF THE SUPREME COURT at the least, minimum wage to such person on pain of violation of article The court has also attacked the root of the system of bonded labour, which is a relic of the feudal hierarchical society, designed to enable a few socially and economically powerful persons to exploit the weaker sections of people. The Supreme Court has ruled bonded labour as unconstitutional under article 23 as it can be regarded as a form of forced labour. In' Bandhua Mukti Marcha v Union of India, 5 * Bhagwati, J, characterized the system of bonded labour as 'totally incompatible with the new egalitarian socio-economic order which we have promised to build and it is not only an affront to basic human dignity but also constitutes gross and revolting violation of constitutional values'. He characterized the process of identification and release of bonded labourers as 'a process of discovery and transformation of non-beings into human beings'. He emphasized that this is a 'constitutional imperative' that 'the bonded labourers must be identified and released from the shackles' of bondage so that they can assimilate themselves in the mainstream of civilized human society and realize the dignity, beauty and worth of human existence'. Linking articles 23 and 21, Bhagwati, J, observed: 'It is the fundamental right of every one in this country, assured under the interpretation given to article to live with human dignity, free from exploitation'. 55 On the question of identifying bonded labour, the court observed: 'whenever it is found that any workman is forced to provide labour for no remuneration or nominal remuneration, the presumption would be that he is a bonded labourer unless the employer or the state government is in a position to prove otherwise by rebutting such presumption'. 56 The court insisted not only on the release of bonded labourers but also on their proper rehabilitation, for otherwise they will relapse into bondage. The court has squarely placed the whole responsibility for this on the State. For example, in 53 Ibid. at Also see Labourers Wtrkmg on Salal Hydro-Project v State ofjammu & Kashmir AIR 1984 SC AIR 1984 SC 802. For comments on article 23, sec M.P. Jain, Indian Constitutional Law (1987), Also see Neerja Chowdhary v State of Madhya Pradesh AIR 1984 SC ^Ibid. at 1103.

21 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 21 Neetja Chowdhaty, the court directed the state government to provide rehabilitation assistance to the released bonded labourers with the following observation: Poverty and destitution are almost perennial features of Indian rural life for large numbers of unfortunate, ill-starred humans in this country and it would be nothing short of cruelty and heartlessness to identify and release bonded labourers merely to throw them at the mercy of the existing social and economic system which denies to them even the basic necessities of life such as food, shelter and clothing... It is the plainest requirement of articles 21 and 23 of the Constitution that bonded labourers must be identified and released and on release, they must be suitably rehabilitated'. 57 An interesting question was considered by the Supreme Court in State of Gujarat v Hon'ble High Court ofgujarat. ss The question was: can prisoners be made to do hard labour against their will? Is it hit by article 23? The court ruled that a prisoner sentenced to rigorous imprisonment can be made to do hard labour. Even so, he should'be paid equitable wages for his work. The court directed each state government to appoint a wage-fixing body to determine the quantum of equitable wages payable to prisoners. 59 Another critical human and economic problem is child labour. Poor parents seek to augment their meagre income through employment of their children. Employers of children also stand to gain financially. Since total prohibition on child labour may not be feasible in the socio-economic environment prevailing in India, article 24 puts only a partial restriction on child labour. The article prohibits the employment of a child below the age of 14 years to work in any factory or mine or in any other hazardous employment. The Supreme Court emphasized in Asiad 60 that article 24 embodies a fundamental right 'which is plainly and indubitably enforceable against every one'. Children below 14 S7 Supra, note 54 at (1998) 7 SCC Also see Gaurav Jain v Union of India AIR 1997 SC 3021, where the Supreme Court has given some directions for the rehabilitation of prostitutes, especially of the child prostitutes and the children of the prostitutes. '"'Supra, note 50.

22 22 FIFTY YEARS OF THE SUPREME COURT cannot be employed in construction work by contractors. The court reiterated this ruling in Labourers W>rkin on Salal Hydro- Project. 61 The court also directed the central government and various governmental agencies to enforce this prohibition. It has generally told the government to persuade the workmen to send their children to any such school and provide for free education there. The court observed: This is an economic problem and it cannot be solved merely by legislation. So long as there is poverty and destitution in this country, it will be difficult to eradicate child labour. But even so an attempt has to be made to reduce, if not eliminate the incidence of child labour. 62 Right to Life Article 21 Over the years, a notable achievement of the Supreme Court has been not only to resurrect article 21 from the oblivion into which it was relegated by the court's own decision as early as 1950 in A.K Gopalan v State of Madras 63 but to give it such an expansive and liberal interpretation as to raise it to a high pedestal. A dramatic transformation has occurred in the fortunes of article 21 since 1978, giving eloquent proof of the avowedly law-creative role played by the court. Article 21 says: TSIo person shall be deprived of his life or personal liberty except according to procedure established by law' Although the article is worded in negative terms, it is now well established that it has both a negative as well as an affirmative dimension. To begin with, the court took an extremely static, mechanical, literal and positivistic view of article 21 in Gopafan, the very first case which arose immediately after the inauguration of the Constitution. In this case, the court interpreted article 21 extremely literally and opined that the expression 'procedure established by law' only meant any procedure which was laid down in the statute by the competent legislature to deprive a person of his life or personal liberty, and that it was not 61 Sec supra, note 53. "Ibid at AIR 1950 SC 27.

23 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 23 permissible to read in the article any such concept as natural justice, or due process of law, or reasonableness. Also, the court ruled that each fundamental right was independent of each other and that article 19 did not apply where article 21 applied. Article 19 applied to a free man and not to a person in preventive detention. Thus, the procedure could not be challenged even if it were not reasonable or not consistent with natural justice. It meant that a person could be deprived of his life or personal liberty according to the procedure laid down in the relevant law passed by the legislature and that the court could not go into the question whether the procedure was reasonable or not. The legislature was free to lay down any procedure. As thus interpreted, article 21 ceased to be a restriction on the legislature; it only constituted a restriction on the executive which must act according to the law while depriving a person of his life or personal liberty. 64 Gopalan, a very much criticized decision, 65 held the field for over twenty-five years, during which period the 'right to life' did not have much of a security. Article 21 played a very insignificant role in offering any protection to a person in respect of his life or personal liberty. The judicial attitude, however, underwent a metamorphosis after the traumatic experiences under the internal emergency imposed in 1975 which was lifted in In Maneka Gandhi, 67 the very first case which came before the court after the emergency, the court nailed some of the prevailing heresies about article 21. By majority, the court now decided (i) that articles 21 and 19 were not mutually exclusive, they had to be read together and so the procedure affecting any of the ^For a fuller discussion on Gopalan, see M.P. Jain, Indian Constitutional Law (1987), K. Subba Rao, former Chief Justice of India, about Gopalan: 'The preponderance of view among the jurists is that it is wrongly decided. It has in effect destroyed one of the greatest of the fundamental rights, i.e. personal liberty 5. Some Constitutional Problems (1970), For a discussion on Emergency Provisions in the Constitution, see M.P. Jain, Indian Constitutional Law, , For the happenings during the Emergency of , see ibid See supra, note 44.

24 24 FIFTY YEARS OF THE SUPREME COURT rights had to be reasonable; (ii) that the procedure established by law in article 21 must conform to article 14 as well; (iii) tliat the word 'procedure' in article 21 in itself meant 'right and just and fair' procedure, and not 'arbitrary, fanciful or oppressive' and any procedure which was not 'right, just and fair' was no procedure at all, and failed to meet the standard of article 21. The court stated that 'the "procedure" in article 21 must not be arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of article 21 would not be satisfied.' The court further held that the concept of reasonableness must be projected in the procedure contemplated by article 21. This was because of the link between articles 21, 19 and 14. Suggesting that the expressions 'life' and 'personal liberty' in article 21 /ought to be given broad and liberal interpretation, the court ruled: 'It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty.' 68 As regards 'personal liberty', the court said that it is of the 'widest amplitude' and 'it covers a variety of rights which go to constitute the personal liberty of man'. Maneka Gandhi thus completely overturned Gopalan; and ushered in a revolution in judicial thinking about article 21. It gave a new life to article 21 and, thus, extended substantive and procedural protection to life and personal liberty. The court took a great step forward by interpreting 'procedure' in article 21 as 'fair, reasonable, and just procedure; thus introducing elements of procedural due process in Indian law. The courts can now insist on better procedural safeguards in cases of deprivation of personal liberty. In the area of personal liberty, procedural safeguards play a crucial role as is clear from the following observation in a Supreme Court case: 'The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal liberty over the years.' 69 In the post-manéka era the words 'according to procedure established by law' became indirectly transformed into 'due "Ibid, at 620. ^Pmbhu Dayal v District Magistrate, Kamrup AIR 1974 SC 183 at 199.

25 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 25 process of law Since Maneka, article 21 has emerged as the Indian version of the American concept of due process of law and has become the source of many substantive rights and procedural safeguards to the people. The term 'personal liberty 5 has been given a very wide connotation, covering a variety of rights which constitute personal liberty. Its deprivation shall be only as per procedure established by law, but the procedure has to be 'fair, just and reasonable'. The Supreme Court underlined this metamorphosis in its attitude towards article 21 in the following words: Article 21 got unshackled from the restrictive meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto unimagined. A burst of creative decisions of this Court fast on the heels of Maneka Gandhi gave a new meaning to the Article and expanded its content and connotation. 71 A nexus has been established between articles 21, 19 and This means that the 'procedure' in article 21 does not mean any procedure: it must answer the test of reasonableness. The reincarnation of article 21 that Maneka Gandhi brought about has had a deep impact on contemporary constitutional jurisprudence. Some aspects of this development are discussed below. 70 In the USA, Amendment V says: '...nor shall any person be... deprived of life, liberty or property, without due process of law...' The 'due process' clause has been used by the US Supreme Court to extend both procedural and substantive safeguards to 'Life, liberty and property.' See Corwin, The Constitution and What It Means Today (1973), Douglas, From Marshall to Mukherjea: Studies in American and Indian Constitutional Law (1956), Because of its contentious nature, the expression 'due process' was shunned by the framers of the Indian Constitution and the expression 'procedure established by law' was used in article 21: see Seervai, Constitutional Law of India (1993), 970. Now, by the judicial interpretative process, the words 'procedure established by law' have been given virtually the same meaning as 'due process of law'. 7l Abdul Rehman Antulay v R.S. Naik AIR 1992 SC 1701 at This nexus between articles 21, 19 and 14 had emerged even before Maneka Gandhi. See John Martin v State of WB AIR 1975 SC 775. In fact, the emergence of this nexus led to the Supreme Court decision in Maneka Gandhi.

26 26 FIFTY YEARS OF THE SUPREME COURT Humanization of Criminal Justice An immediate beneficial impact of Maneka Gandhi has been felt in the administration of criminal justice, which is in an extremely unsatisfactory condition. Prison conditions are deplorable and sub-human; prisoners are maltreated; criminal trials are inordinately delayed; police brutality is legendary. Using the newly established mantra that one can be deprived of his personal liberty only through procedure which is 'fair, just and reasonable', the court has since 1978 begun laying down new liberal norms for every aspect of criminal justice, thus endeavouring to humanize and liberalize the administration of criminal justice. In this context, the court has emphasized 'speedy trial' of criminal cases. Though not a specific fundamental right, speedy trial 'is implicit in the broad sweep and content of article 2Γ. A fair trial implies a speedy trial. No procedure can be regarded as 'reasonable, fair and just' unless 'that procedure ensures a speedy trial' for determination of the guilt of such person', and that speedy trial is 'an integral and essential part of the fundamental right to life and liberty enshrined in article 2Γ. 73 A very grievous aspect of the system of criminal justice is long pre-trial incarceration of the accused persons. The poor prisoners have to languish awaiting trial because there is no one to post bail for them. Long pre-trial confinement in prison jeopardizes an individual's liberty. On this basis, the court has ordered release of hundreds of prisoners who had undergone imprisonment for a period longer than the maximum prison sentence they would have been awarded for the offences committed by them. The Supreme Court has said in this connection: 'It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial.' 74 Since any procedure which keeps large number of people behind bars without trial for long cannot be regarded as 'reasonable, just and fair', 75 the court has laid down liberal rules for bail, observing: 7i Hussainara Khatoon v Bihar AIR 1979 SC 1360, also, ibid. 1369, Kadra Pahadiya v Bihar AIR 1981 SC 935; AIR 1982 SC 1167; State of Maharashtra v Champalal AIR 1981 SC Ibid. Also see Kadra Pahadiya v State of Bihar AIR 1982 SC Supra note 72.

27 THE SUPREME COURT AND FUNDAMENTAL RIGHTS the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. 76 An innovative step in the scheme of administration of justice taken by the court has been to insist on free legal aid to poor prisoners facing a prison sentence. This is a giant step in humanizing the administration of criminal justice. The court has emphasized that the lawyer's services constitute an ingredient of fair procedure to a prisoner who is seeking his liberation through the court's procedure. Thus, the State should provide free legal aid to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. The court has reiterated this theme of providing legal aid to poor prisoners facing prison sentences time and again. For example, in Hussainara/ 8 it observed: 'It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him.' Viewing free legal service to the poor and the needy as an essential element of any 'reasonable, fair and just procedure', 79 Bhagwati, J, observed: Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable, fair and just'. 80 The Supreme Court has in several instances passed strictures against police torture and brutality on prisoners, undertrials and accused persons. It observed in Raghubir Singh v State ofharyana: We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death Babu Singh v Uttar Pradesh AIR 1978 SC 527 at 529. Also see Kashmira Singh v State of Punjab AIR 1977 SC M.H. Hoskot v State of Maharashtra AIR 1978 SC Supra note 73 at Also see Khatri v Bihar AIR 1981 SC 928; Sheela Barse v State of Maharashtra AIR 1983 SC 378; Ranjan Dmvedi v India AIR 1983 SC For further discussion on free legal aid, see infra. 81 AIR 1980 SC 1087 at 1088.

28 28 FIFTY YEARS OF THE SUPREME COURT Describing police torture as 'disastrous to our human rights awareness and humanist constitutional order', the court has held the State responsible for remedying the situation. If police brutality is not checked, 'the credibility of the rule of law in our Republic vis-a-vis the people of the country will deteriorate.' In D.K. Basu v State of West Bengal 82 the court went into this problem extensively. In the instant case the court observed: 'custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law'. The court further observed: However, in spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation... Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law'. 83 The court issued several directions to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures. 8 * Apart from the police, several other- governmental authorities like the Directorate of Revenue Intelligence have power to detain and interrogate a person in investigating economic offences. There are instances of torture, and even death, in the custody of these authorities as well. The court has awarded compensation against police and such bodies as well as to victims of torture by them. 8 In Jqginder Kumar v State of UP, 96 the court issued directions regarding arrest. It emphasized that a police officer may have the power to arrest but justification for exercising the power is quite 82 AIR 1997 SC 610. Also see Kartar Singh v State of Punjab (1994) 3 SCC 56; Nilabati Behem v State of Orissa AIR 1993 SC Ibid. at Also see infra under 'Compensation'. 85 J«Re Death of Sawinder Singh Graver 1995 Supp (4) SCC 450, the Supreme Court took suo motu notice of the death of Sawinder during his custody with the Directorate of Enforcement, Foreign Exchange. The court awarded a sum of Rs 2 lakh to his widow as ex gratia payment. 86 AIR 1994 SC 1349.

29 THE SUPREME COURT AND FUNDAMENTAL RIGHTS 29 another matter. Arrest can cause incalculable harm to a person's reputation and self-esteem. Arrest should be made not merely on suspicion but only after a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief as to the person's complicity and even so as to the need to effect arrest. The court has also said that the arrested man has certain rights, namely, he has a right that a relative/friend of his be informed about his arrest and the plea of his detention; he has a right to consult his lawyer privately. The Supreme Court has also sought to humanize prison administration. It has emphasized that articles 14, 19 and 21 'are available to prisoners as well as free men. Prison walls do not keep out fundamental rights.' 87 The guiding motto is: imprisonment does not ipso facto mean that fundamental rights desert the prisoner; prisoners also have fundamental rights. 88 The court has adversely commented upon the practice of causing physical injury to prisoners in the name of prison discipline. It has laid emphasis on the prisoner's right to the integrity of his physical person and mental personality. The court has stressed that the 'goal of imprisonment is not only punitive but restorative, to make an offender a no offender.' It has given several directives regarding treatment of prisoners and improvement of several aspects of prison administration, as for example, as regards handcuffing of prisoners, 89 putting bar fetters, 90 solitary confinement, 91 etc. The court has ruled that a cruel punishment ought not to be imposed. Execution of death sentence by hanging has been held to be not a cruel punishment; 92 but the court has ruled that the 'death penalty' is an exception rather than the rule and has to be awarded only in the 'gravest of cases of extreme culpability' or in S7 T.V Vatheeswaran v State of Tamil Nadu AIR 1983 SC 361. s& Prem Shankar v Delhi Administration AIR 1980 SC Ibid. Khatri v Bihar AIR 1981 SC Sunil Batra v Delhi Administration AIR 1978 SC 1675; Charles Sobhraj v Supdt. Central Jail (1978) 4 SCC Kishor Singh v State of Rajasthan AIR 1981 SC 625; Sunil Batra v Delhi Administration (1978) 4 SCC Bachan Singh v State of Punjab AIR 1980 SC 898.

30 30 FIFTY YEARS OF THE SUPREME COURT 'rarest of rare cases. The court has also objected to the delayed execution of a death sentence, holding that prolonged delay in the execution of a death sentence would be an 'unjust, unfair and unreasonable procedure' to execute the death sentence. 94 In several cases, the court has commuted the death sentence to a sentence of life imprisonment because of prolonged delay in the execution of the death sentence. 95 Quality of Life Apart from improving the administration of criminal justice, the Supreme Court has used article 21 creatively to improve the quality of life in the country and to imply therefrom a bundle of rights for the people. In arguing that 'Ufe' in article 21 does not mean merely 'animal existence' but living with 'human dignity', the court has given very expansive parameters to the article. In Francis Coralie v Administrator, Union Territory of Delhi it observed:... the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.' 96 Another broad formulation of the theme of life with dignity is found in Bandhua Mukti Morcha 97 - Characterizing article 21 as the heart of fundamental rights, the court gave it an expanded interpretation: 9l Machhi Singh v State of Punjab AIR 1983 SC Supra, note 86; Sher Singh v State of Punjab AIR 1983 SC See for example, Javed Ahmed v State of Maharashtra 1984 Cri. L.J (delay of 2 years and 9 months); Vatheesivaran supra note AIR 1981 SC 746 at See supra, note 54.

31 THE SUPREME COURT AND FUNDAMENTAL RIGHTS to live with human dignity, free from exploitation. It includes protection of health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum conditions which must exist in order to enable a person to live with human dignity. No government can take any action to deprive a person of the enjoyment of these basic rights. Right to Livelihood The court has also held the right to life to include right to livelihood, because no person can live without the means of living, i.e. means of livelihood. If right to livelihood is not treated as part and parcel of the constitutional right to life, the easiest way to deprive a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. 98 The court has observed on this point: The State may not by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by article 21." Accordingly, the court has ruled in Olga, Tellis that before the pavement dwellers can be evicted by the municipality, they should be given notice and hearing. Removal of pavement dwellers will deprive them of their livelihood, which amounts to deprivation of life. Therefore, anyone who is deprived of his right to livelihood without just and fair procedure established by law can challenge the deprivation as being against article 21. The court has ruled that when a government servant or one in a public undertaking is suspended pending the holding of a departmental disciplinary inquiry against him, subsistence allowance must be paid to him, since a government servant does not surrender his right to life under article 21 or the basic human rights. 'Non-payment 9 *Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180. Also see D.K, Yadav v JMA. Industries (1993) 3 SCC 259; Or Hansraj L. Chulani v Bar Council of Maharashtra and Goe.(1996) 3 SCC 345. "Olga Tellis, ibid, at 194.

32 32 FIFTY YEARS OF THE SUPREME COURT of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee.' 100 Rtghi to Education The word 'life' has been held to include 'education', because education promotes good and dignified life. Reading article 21 with article 41, 101 the Supreme Court has ruled in Unni Krishnan 102 that the right to education till the age of 14 years is embraced within article 21 and, thus, it has been held to be a fundamental right. Beyond the age of 14 years, the right to education gets circumscribed by the economic capacity and development of the State. No fundamental right to education for a professional degree flows from article 21. In Unni Krishnan 103 the court was called upon to consider whether the State could permit private professional educational institutions to charge capitation fee for admission of students. In Mohini Jain v State ofkarnataka 104 a two-judge bench of the court had propounded an absolutist view on this question. The bench had ruled that the 'right to education' being concomitant to the fundamental rights 'the State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens'. Further, the bench characterized charging of capitation fee as 'nothing but a price of selling education.' The bench thus declared charging of capitation fee by State-recognized educational institutions as 'wholly arbitrary and as such violative of article 14 of the Constitution.' The Mohini Jain ruling was hardly viable, feasible and tenable, for no state currently has the financial wherewithal to meet the public demand for professional colleges. Accordingly, the matter was reconsidered by a larger bench in Unni Krishnan. The main judgement was delivered by Jeevan Reddy, J. The court said that the fundamental right to education flows from article 21, but the 100 M. Paul Anthony v Bihar Gold Mines Ltd AIR 1999 SC 1416 at Article 41 is a directive principle. For discussion on directive principles, see infra. 102 Unni Krishnan v State ofandhra Pradesh AIR 1993 SC Ibid. 104 AIR 1992 SC 1858.