International Journal of criminal justice science

IJCJS


Law







Research paper on



 



 



  Bill of Rights and Indian Constitution: Legislative and Judicial perspective



By:



Dr. Dimpal T. Raval,



Senior Faculty of Law,



                                                     School of Law, Humanities & Social Sciences,



 Rashtriya Raksha Univerity,



An Institute of National Importance,



Gandhinagar, Gujarat, India



&



Saubhagya Dubey,



                                                                           IInd Semester, LL.M.,



                                                    School of Law, Humanities & Social Sciences,



                                                                    Rashtriya Raksha University,



                                                                     Gandhinagar, Gujarat, India



 



INTRODUCTION



What is the Bill of Rights?



Britain is a country which can be looked up to, when we talk about Bill of Rights; and its landmark Magna Carta which serves as the grundnorm for almost all the legal texts which carry a sense of liberal viewpoint.



Magna Carta is one of the foundational documents which talks about the rights of individuals; and serves as one of the earliest documents which talks about rights of citizens which have been granted by the governments. This is also a remarkable piece of western legal thought.



 



The French Revolution of the 16th Century is another striking testament, which shows the close nexus of liberated thought and the western world. The revolution amplified the spirit of renaissance and gave impetus to active law-making in the then so-called democratic nations. This spirit was curtailed during the World war regime. And it was again revived in the post-war order.



 



The American Constitution followed the league in 1791; even though the country had already declared itself independent in 1776, the constitution in 1791 provided for an exhaustive list of rights that were absolute in nature and could not be denied. Even though the Bill of Rights is the collective name for the first ten amendments to the United States Constitution in their original form. These amendments were ratified on December 15, 1791, and known as the ‘Bill of Rights. The amendments were introduced by James Madison to the 1st United States Congress as a series of legislative articles[1]. The Bill of Rights is the first 10 amendments to the U.S. Constitution, adopted as a single unit. It spells out the rights of the people of the United States in relation to their government.



Even India follows the same line of thought, and the same can be reiterated when we take a closer look at our founding fathers’ mindset which made a distinction between fundamental rights and non-fundamental rights in the following way “ The real distinction between the two is that non-fundamental rights are created by agreement between parties while fundamental rights are the gift of the law. Because fundamental rights are the gift of the State it does not follow that the State cannot qualify them.”[2].



 



Bill of Rights and constitutional perspective in the Indian Context -



The advent of Fundamental Rights can be marked by the words of Annie Mascarene and her lucid explanation in the Constituent Assembly Debates where she said “Our Constitution is today ushered into the world with a declaration of Fundamental Rights, which can be traced back to the Magna Carta, the Petition of Rights, and the Bill of Rights - rights which have been secured for humanity by the political philosophers of the 18th century and incorporated into constitutions that have come into existence since then. These rights are also incorporated in our Constitution for all the world to see. Thus freedom of the individual, freedom of opinion, freedom of religion and expression, security of life, liberty and property and pursuit of happiness, have been ensured and secured to every individual in the framework of our Constitution”[3].



 



 



Constitutional Assembly Debates



The Bill of Rights was a contentious topic in the Constituent Assembly; wherein many of our forefathers reasoned its existence in our constitution, while many questioned how it is different from the American Bill of rights. Many of the questions which were raised were regarding the absoluteness of the American Fundamental rights while the rights enumerated in the constitution were flexible and of adaptive nature. B.R. Ambedkar responded to the same by saying that “The most criticized part of the Draft Constitution is that which relates to Fundamental Rights. It is said that Article 13 which defines fundamental rights is riddled with so many exceptions that the exceptions have eaten up the rights altogether. It is condemned as a kind of deception. In the opinion of the critics fundamental rights are not fundamental rights unless they are also absolute rights. The critics rely on the Constitution of the United States and to the Bill of Rights embodied in the first ten Amendments to that Constitution in support of their contention. It is said that the fundamental rights in the American Bill of Rights are real because they are not subjected to limitations or exceptions”[4].



 



He also clarified the position of the Indian fundamental rights by saying that “criticism about fundamental rights is based upon a misconception. In the first place, the criticism in so far as it seeks to distinguish fundamental rights from non-fundamental rights is not sound. It is incorrect to say that fundamental rights are absolute while non-fundamental rights are not absolute”[5].



 



B.N Rau is another legal luminary who extensively spoke on the same, he explained the position of Fundamental rights incorporated in the Indian Constitution by saying that “We may now proceed to analyze the fundamental rights embodied in the constitutions of some of the more important countries of the world and to frame the draft of a Bill of Rights for incorporation in the Indian Constitution. For this purpose, it is useful to recognize a distinction between two broad classes of rights: there are certain rights that require positive action by the State and which can be guaranteed only so far as such action is practicable, while others merely require that the State shall abstain from prejudicial action”[6].



 



Dr. B.R Ambedkar in continuum elucidated upon the distinction that the American and the then Draft constitution had; “The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the Draft Constitution's fundamental rights, one can refer to at least one judgment of the United States Supreme Court. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on the right of free speech contained in Article 13 of the Draft Constitution. In Gitlow Vs. New York in which the issue was the constitutionality of a New York "criminal anarchy" law which purported to punish utterances calculated to bring about violent change, the Supreme Court said:"It is a fundamental principle, long-established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom." [7]



 



This foresight of the constitution-makers has saved enormous time as the specific restrictions which impose limitations upon the functioning of the fundamental rights not only curb undue litigation but also ease out the execution from the government agencies. The specificity of the fundamental rights ensures that the interpretation of the constitution is more predictable and is within the reach of every individual.



 



Major Legislative Enactments



The Bill of rights has also affected major legislations in the country as many of them are a clear outcome of the fundamental guarantees that have been safeguarded by the constitution. Such enactments have furthered the cause of such fundamental rights and act as an extension of the same. For instance, the Right to Information Act of 2005 is an extension of Article 21 of the constitution which ensures that the right to information is interpreted at parity with a right to life and liberty. This act has made remarkable progress in ensuring good governance as it has provided the individuals with a tool to ask for information from government departments; thereby it has improved the accountability of various departments.



 



Another such enactment is the Right of Children to Free and Compulsory Education Act, 2009, an extension of  Article 21-A, which speaks of the right to education. The Act here functions as a legal mechanism to enforce the Fundamental right in an adaptive fashion.



 



This paper has tried to accumulate a few important fundamental rights which resonate with the glimpse of the Bill of rights. The following areas are accompanied by landmark judgments that reflect the approach and outlook of the judiciary with respect to the functioning of these rights.



 



 



 



Freedom of press



Romesh Thappar v State of Madras,[8] Supreme court held that the freedom of speech and expression of press lay at the foundation of all democratic organizations. Without free political discussion, no public education for the proper functioning of the process of government is possible.



Indian Express Newspapers v Union of India,[9] Supreme court held that “freedom of the press” means freedom from interference from an authority which would have the effect of interference with the content and circulation of newspapers.



 



Freedom of religion



S.R Bommai v Union of India,[10] Supreme court held that secularism is the basic structure of the constitution. Indian Constitution embodies the positive concept of secularism. In matters of religion, the state is neutral and treats every religion equally.



Aruna Roy v Union of India,[11]Supreme court held that study of religion in school is not against secular philosophy of the constitution. Secularism is susceptible to positive meaning. That is respecting and understanding different religions.



 



Freedom of Assembly



Re-Ramlila Maidan Incident vs Home Secretary And Ors[12]“Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action. The law prescribes no requirements for taking permission to go on a fast.”



 



Right to petition the government



In the words of Dr. Ambedkar,[13] -



“If I was asked to name any particular article in the constitution as the most important- an Article without which this constitution would be nullity- I would not refer to any other Article except Article 32. It is the very soul of the Constitution and the very heart of it.”



 



Prem Chand Garg v Excise Commissioner,[14]Supreme court held that Fundamental right to move to Supreme Court can be appropriately described as a cornerstone of the democratic edifice raised by the constitution. In discharging the duties assigned to it the courts play the role of a sentinel on the qui vive and it must always regard it as solemn duty to protect the fundamental right zealously and vigilantly.



 



Right to bear Arm



Ganesh Chandra Bhatt vs District Magistrate, Almora And ors[15]



“In my opinion, the right to bear arms is embedded in Article 21 of the Constitution, and hence it is a fundamental right. No doubt this right, like all fundamental rights, is subject to reasonable restrictions, but the reasonability of the restriction must be judged from the point of view of the prevailing social conditions, and not in the abstract.”



 



“Article 21 is part of the Constitution, I have already held that the right to bear arms (i.e. non-prohibited firearm) is part of Article 21 of the Constitution, Hence, any provision in the Arms Act, 1959 which unreasonably infringes this right will be unconstitutional.”



 



Protection against unreasonable search and seizure



V. S. Kuttan Pillai v. Ramakrishnan[16], the procedural validity of search warrants was upheld, in which it was held that a search for the premises occupied by the accused did not in any way force him to provide evidence against himself and was thus not in violation of Article 20(3) of the Indian Constitution.



 



Protection against Double Jeopardy



Kalla Veera Raghav Rao vs Gorantla Venkateswara Rao,[17] supreme court held that “A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remain in force, not be liable to be tried again for the same offence, nor on the same facts for any other offences, for which a different charges from the one made against him might have been made under sub-section (1) os section 221, or for which he might have been convicted under sub section (2) thereof;. So where the appellant had already been convicted under section 138 of the Negotiable Instruments Act, 1881, he could not be tried and punished on the same facts under section 420 or any other provision of IPC or any other statute.



 



Protection against self-incrimination



M.P Sharma v Satish Chandra[18], The fundamental rule of criminal jurisprudence against self-incrimination has been raised to a rule of constitutional law in Article 20(3). The guarantee extends to any person accused of an offense and prohibits all kinds of compulsions to make him a witness against himself.



 



Right to speedy trial



Hussainara Khatoon v State of Bihar,[19]Supreme Court held that the right to a speedy trial is a fundamental right to life and liberty.



 



Right to inform of charges



V.C Shukla v State,[20]Supreme Court held that the charge serves for a purpose of notice or ontimating to the accused, giving clear and unambiguous notice of the nature of the accused. It is to enable the accused to have a clear idea of what he is being tried for.



 



Right to trial by jury



Dhirendra Kumar Mandal vs The Superintendent,[21]The Supreme Court held that, Though the trial by jury is undoubtedly one of the most valuable rights which the accused can have, it has not been guaranteed by the Constitution. Section 269(1) of the Code of Criminal Procedure is an enabling section and empowers the State Government to direct that the trial of all offenses or of any particular class of offenses before any Court of Session shall be by jury.



 



Protection against excessive Bail



BhikhabhaiUdesinh Darbar vs State Of Gujarat[22]Supreme Court held that the conditions imposed must not be harsh, onerous or excessive so as to frustrate the very object of bail, or indirectly deny the bail, or protection of the law. In other words, every Judge has to observe self-restraint and pass the order strictly remaining within the four corners of the law. He cannot be overzealous.



 



Protection against excessive fine



K. Satwant Singh vs The State Of Punjab,[23]Supreme Court held that a sentence of a fine could at no time be excessive and therefore the sentence of fine which could be imposed under section 420 was not entirely unlimited as it could not be excessive. In considering whether a fine would or would not be excessive various considerations had to be kept in mind including the seriousness of the offense and the means of the accused. Section 63 of the Indian Penal Code expressly states that where no sum is expressed to which a fine may extend the amount of fine to which the offender is liable is unlimited.



 



Protection against unusual punishment



Mr. Justice Douglas in the case Rajendra Prasad Etc vs State Of Uttar Pradesh[24], held that the death penalty was cruel and unusual because applied irregularly and "selectively to minorities whose members are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the boards"



 



Right granted in the Constitution shall not infringe on other rights



National Stock Exchange Member vs Union Of India (Uoi) And Ors.,[25]It may be mentioned here that according to the theory of the eminent jurist Kelsen (The Pure Theory of Law) in every legal system there is a hierarchy of laws, and the general principle is that if there is a conflict between a norm in a higher layer of the hierarchy and a norm in a lower level of the hierarchy, then the norm in the higher layer prevails, and the norm in the lower layer becomes ultra vires. In our hierarchy, the Constitution is supreme. Therefore, the constitution of India will prevail over others.



 



Conclusion



 



It is observed that the current fundamental rights are not exactly a mirror-image of the Bill of Rights, but they surely do encompass the spirit of western thought. And it is also evident that the majority of the rationale is derived or it is preferred from western legal thought. The western legal thought advocates a right-based regime, which is more of a philanthropic streak that is attached to all the legal systems approving this thought. The rights-based approach in the Indian context needs to coupled with a duty-based approach, as it is shall encourage a more holistic setup that also fixes the duty of the citizens.



 



This one-sided affair needs to end as the population of the country grows manifold; infiltration of external elements, burdening of the economy, attempts to break the societal structures, etc all of these factors contribute to the fact that the citizens owe a duty towards the nation in which they reside in lieu of all what they gain from the state. A factor of duty which is conveniently ignored from time to time is a major element that needs to position itself on the center-stage; the burdened governmental setup which is responsible for 1/7th of the world’s population needs to breathe and it is the duty of the citizens to take up some responsibilities as a factor-payment in return of all the services which has been availed from the state. This factor-payment does not exclusively focus on taxes and fees; rather such duties should be service-oriented and the parameters to evaluate the contribution of the citizens need not be in just monetary nature.



 



The stressed resources are another major factor why more and more citizen-oriented efforts are required and this can be also said to be an extended arm of the Atmanirbharprogram. This in fact would help to distribute not just financial burden but also help to delegate managerial tasks which stress the state treasury.



Lastly, after studying the Bill of rights, we feel that the government should encourage more empowerment rather than create a conducive environment that conceives the idea of a protectionist regime. The protectionist regime is not a guarantee of progress but is surely an enemy of equal opportunity. Therefore the government should not play on the behalf of the players; rather it should create a level playing field.



 



 

[1] 3rd Edition Durga Das Basu, Comparative Constitutional Law





[2] B. R Ambedkar in Constituent Assembly, Constituent Assembly Debates, Volume 7, Document Number 48, Para 235





[3] Anne Mascerene in Constituent Assembly, Constituent Assembly Debates, Volume 11, Document Number 159, Para 29





[4] B. R Ambedkar in Constituent Assembly, Constituent Assembly Debates, Volume 7, Document Number 48, Para 234





[5] B. R Ambedkar in Constituent Assembly, Constituent Assembly Debates, Volume 7, Document Number 48, Para 235





[6] B.N Rau, Preliminary Notes on Fundamental Rights (1946), Para 1





[7]  B. R Ambedkar in Constituent Assembly, Constituent Assembly Debates, Volume 7, Document Number 48, Para 236





[8]1950 AIR 124, 1950 SCR 594





[9]1986 AIR 515, 1985 SCR (2) 287





[10]1994 AIR 1918, 1994 SCC (3) 1





[11] Writ Petition (civil) 98 of 2002





[12] WRIT PETITION (CRL.) NO. 122 OF 2011





[13]Constitutional Assembly Debate Vol. VII at 953





[14]AIR 1963 Sc 996





[15]AIR 1993 All 291





[16]1980 AIR 185, 1980 SCR (1) 673





[17] Criminal Appeal No. 1160 Of 2006



 





[18]1954 AIR 300





[19]1979 AIR 1369, 1979 SCR (3) 532





[20]1980 AIR 962, 1980 SCR (2) 380.





[21]1954 AIR 424, 1955 SCR 224





[22](1998) 1 GLR 315





[23]1960 AIR 266, 1960 SCR (2) 89





[24] 1999 (1) AWC 357, (1999) 1 UPLBEC 454.





[25]2006 133 CompCas 504 Delhi, 125 (2005) DLT 165