81

3 FUNDAMENTAL RIGHTS

A short history of Fundamental Rights – Just as a written Constitution has evolved

out of the concept of natural law as a higher law, so Fundamental Rights may be
said to have sprung out of the doctrine of natural rights. As our Supreme Court has
put it,

―Fundamental rights are the modern name for what have been traditionally known
as ‗natural rights‘1

Fundamental rights have evolved out of ‗natural rights‘

The doctrine of natural rights is itself, an offshoot of the doctrine of natural

law. Since natural law consists of rules founded on the primary instincts of man as
modified by his inborn perception of what is right or wrong, it would follow that
natural rights would constitute the primary rights and obligations of men to each
other as soon as they being to live in a society, i.e., in association with others. And
since the rules of natural law are of universal application, natural rights also inhere
in every human being, in all ages and in all climes.

The political implication of the theory of natural rights is that these rights,
being inherent in man, existed prior to the birth of the State itself and cannot,
therefore, be violated by the State. Paradoxically, however, the growth of the State
itself necessarily put limitations upon the natural rights of every individual in the
interests of the collective existence. In a ‗state of nature‘, the earliest state of
society envisaged by political thinkers such as Hobbes or Rousseau, right was co-
related with might, in the sense that every man had a right to do everything within
his power. The growth existence postulates that the rights of each individual
should be limited by the collective interests of the society in which he lives.1

Just as natural law stands above the law of the land, the natural rights are
supposed to be of a higher sanctity than legal rights, which are actually prescribed

1
Aquinas, Summa Theologica (tr. By Dawson, Q. 94, Art. 2).
 82

by the legal sovereign for the time being, because natural rights exist independent
of the law of the land and are not prescribed by any human authority.

Though there has been an unending controversy as to whether rights are anterior
to political society or are created by the letter, philosophers agree on the point that
there are certain basic and inalienable2-3 rights which are inherent in free and
civilized human beings. A political society is necessary not to create them but to
secure them. For instance, a right to habeas corpus, in England, was not created by
the Habeas Corpus Acts, but existed even prior to the enactment of those statutes.
Civilised men derive such rights from a higher law, which was called ‗natural law‘
at the dawn of civilization, and which later came to be embodied in the form of a
written instrument or instruments constituting the fundamental law of the land.

The concept of natural right (jus naturale) as being derived from natural
law (lex naturalis) may be traced from the Stoic philosopher Cicero, who in the
De Legibus, said:

―… we are born for justice, and …… right is founded not in opinion but in nature.
There is indeed a true law, right reason, agreeing with nature and diffused among
all, unchanging, everlasting‖.

This concept was given a more concrete shape n the writing of the Roman
jurists who asserted that –

Justinian‘s Institutes

―By natural law all men are born free‖ 4 ―So far as pertains to natural rights, all
men are equal‖.5

While the Stoics identified the law of nature with Reason, the Churchmen
of the Middle Aged identified it with the law of God and thus sowed the seeds of

2
American Declaration of Independence, 1776.
3
Cf. Loan Association V. Topeka, (1875) 20 Wall. 655 : Munn v. Illinois, (1877) 94 U.S. 113.
4
Institutes of Justinian, I, ii, 2.
5
Ulpian, Digest, I 17, 32.
 83

the revolutionary doctrine that the individual had a right to defend himself against
absolutism.

Though the Constitution of England has never been codified in the form of
one organic instrument, so far as individual rights are concerned, they have been
asserted from time to time in the form of declarations of the inviolable rights and
liberties of the subject against the most despotic monarchical authority. In the
words of Blackstone,6 these rights were ―founded on nature and reason, so they
are coeval with form a government‖.

The doctrine of natural rights thus passed into the realm of practical reality
when an absolute monarch himself (King John) was made to acknowledge that
there were certain rights of the subject which could not be violated even by a
Sovereign in whom all power was legally vested.

The movement continued through the repeated confirmations of the Magna Carta
and the Petition of Right, 1628, and culminated in the Bill of Rights, 1689, which
enacted in a parliamentary statute the declaration which the people made the
Prince and Princess of Orange to subscribe at their accession in 1688. The
contribution of this instrument towards the development of Fundamental Rights9 7
will be evident when we look at its concluding words.

―….. it may be declared and enacted, that all and singular the rights and liberties
asserted and claimed in the said declaration are the true, ancient and indubitable
rights and liberties of the people of this kingdom‖.

The Act of Settlement, which followed, had for its Title –―An Act declares
declaring the Rights and Liberties of the Subject …..‘ which were asserted as ―the
birth-right of the people of England‖.

Together with these Charters of liberties we should advert to the views of

contemporary political thinkers, such as the absolutism. Though from the early
times natural law was considered as a norm for right conduct as well as the source

6
(1765) 1 Bl. Comm., Ch. I, pp. 127-8.
7
In particular, the guarantees of peaceable assemblage, against double jeopardy and excessive bail in the
American Constitution were drawn from the English Bill of Rights of 1689. For Text, see Author‘s Select
Constitutions of the world.
 84

of certain basic rights, the latter aspect was more emphasized by the revolutionary
leaders like Eliot, Pym and hampden, to assert that there were certain fundamental
rights, such as the freedom of person and property, which could not be arbitrarily
interfered with by any political authority. The theory of natural rights of the
individual was thus used to checkmate the theory of Divine Right of Kings.

It was about this time that the poet John Milton, in his Areopagitica, pleaded for
‗the liberty to know‘, to utter and to argue freely according to ‗conscience‘.

The doctrine of natural rights, received further impetus at the hands of the
great protagonists of the theory of Social Contract in the 17 th and 18th centuries,
particularly, Locke and Rousseau, who sought to trace the genesis of political
society and government in an agreement into which individuals entered to form a
collective society to ensure their general interests and objects, but, at the same
time, without interfering with their ‗natural rights‘ which already belonged to
them as human beings.8

Of this group of political thinkers, the most systematic contribution was

that of John Locke, whose two Treatises of Government, published in 1690, and
wielded a great influence upon the American colonists in preparing the
Declaration of Independence and the written Constitutions. Shorn of details,
Locke‘s theory was that in the original state of nature, man was governed by the
low of nature; but for the sake of better safety, he joined in a political society by
means of a ‗social compact for the mutual preservation of life, liberty and
property. The government, so set up by a compact, was naturally one of limited
powers and was bound to the community by the guarantee that the people‘ natural
rights would be preserved. The legislature was thus limited by natural law and law
made by the Legislature contrary to the law of nature or violative of the natural
rights of the individual was invalid. Some of these natural rights, for instance,
were ‗equality‘, - ―men being by nature all free, equal and independent‖; liberty
and property, The distinct contribution of Locke to the philosophy of fundamental
rights, thus, was that he did not rest with the assertion of the natural rights against

8
Rousseau, Social Contract, I. vi.
 85

royal arbitrariness; he held them as against the Legislature as well, even though
the ―supreme power in the commonwealth‖ might belong to the Legislature.9

Though full of contradictions in his philosophy of Social contract, it was

Rouseau who gave a kinetic impetus to the doctrine by emphasizing that the sole
justification of the State, - deriving its authority from the people, - was to
guarantee the natural rights of man, of freedom and equality. 10 These were
―natural‖ rights inasmuch as they inhered in man in the ‗state pf nature‘:

It is striking that this concept of natural rights as binding on any political

authority crept in to the thoughts of a legalist like Blackstone who, writing in
1765,11 rights of persons.

By absolute rights of individuals, Blackstone meant –

―those which are so in their primary and strictest sense; such as would being to
their persons merely in a state of nature; and which every man is entitled to enjoy,
whether out of society or in it.:

These are to be distinguished from relative rights which are incidental to

individuals only as members of society.

It is the duty of the political society to protect these absolute rights and
therefore the State or any authority therein cannot interfere with or encroach upon
these natural rights except in so far as that is essential for the free maintenance or
proper enjoyment of such rights as members of a collective society. Thus,
Blockstone continues. –

Credit must, therefore, go to Blackstone for importing the doctrine of

natural rights from the realm of political philosophy into the realm of
jurisprudence. Of course, he was also asserting that ―the power of parliament is
absolute and without control‖ and that ―what parliament doth, no authority upon
earth can undo‖.14 but he had, at the same time, the belief that the ‗absolute

9
Locke, Second Treatise of Civil Government, x, 135; xiii, 149.
10
Rousseau, Social contract, 1762 (Everyman), I. i. Discourse on Ineqquality, Pt. II.
11
Blackstone, (1965) I Comm., Ch. I. pp. 123-4 (Coleridge Ed.).
 86

rights‘ of man were and would be safeguarded by the laws made by Parliament so
long as ‗the constitution of England‘ ‗does not perish‘. 12

Lockes‘ theory of Social contract was materially fruitful in the compact

which the Pilgrim Fathers entered into when they landed from their ship named
Mayflower, at Plymouth, in the year 1620. In this Agreement, the signatories,
after recognizing their allegiance to the King of England, -

―do solemnly and mutually, in the presence of God, and of one another, covenant
and combine together into a civic body politic,… and … to enact, constitute and
frame such just and equal laws, ordinances, acts, constitutions, and offices from
time to time, as shall be thought most meet and convenient for the general good of
the Colony, into which we promise all due submission and obedience‖.13

The significance of this Compact lies in the fact that when the Colonial
revolt started in 1763. The colonists pointed to this Compact as the contract
between the colonists and the king by which he was deemed to assure protection
of their natural rights.

The Bill of Rights adopted in the State constitution of Virginia in 1776

was the first declaration of rights in a written Constitution ―as the basis and
foundation of government.‖ The impress of the doctrine of ‗natural rights‘ is to be
found in the preamble of this Declaration:

―All men are by nature equally free and independent and have certain inherent
natural rights of which when they enter society, they cannot by any compact
deprive or diverts their posterity….‖

As Ritchie14 points out, this Bill of Rights served ―as the model for many
similar declarations adopted after American independence had been secured‖.
That it inspired the makers of the Bill of Rights appended to the national
constitution by the first Ten Amendments would be evident if we find that
amongst the rights asserted by the Virginia Bill of Rights are –

12
Ibid., Book I, Ch. 2, pp. 161-2.
13
McLaughlin. Foundations of American Constitutionalism (Premier Americana, 1961), p. 27.
14
Ritchie, Natural Rights, 1894, p. 4.
 87

The theory of natural rights entered into the realm of constitutional realism
with two revolutionary documents, namely, the American Declaration of
Independence and the French Declaration of Rights of Man, which asserted that
there were certain rights which were inalienable and which it was the duty of the
State and its organs to maintain.

The aggression of the omnipotent British Parliament against the American

colonists could be met only by holding up the shield of the inviolable natural
rights of man which would constitute a limitation to any form of government,
monarchical or parliamentary‖. 15

The Declaration of American Independence, drafted by Jefferson in 1776,

said.

―We hold these truth to be self-evident; that all men are created equal; that they
are endowed by their creator with certain inalienable rights; that among these are
life, liberty, and the pursuit of happiness…‖.

Though it was not a part of a written constitution, it asserted ―certain

inalienable rights‖, as against any government in power, adding that –

―….to secure these rights governments are instituted among men, deriving their
just powers from the consent of the governed‖

Inspired by the American Declaration of Independence, the French

National Assembly in 1789 formulated the Declaration of the Rights of Man:

The representatives of the people of France, formed into a National

assembly considering that ignorance, neglect, or contempt of human rights, are the
sole causes of public misfortunes and corruptions of Government, have resolved
to set forth in a solemn declaration, these natural, imprescriptibly, and inalienable
rights, that this declaration being constantly present to the minds of the members
of the body social, they may be ever kept attentive to their rights and their duties;
that the acts of the legislative and executive powers of Government, being every
moment compared with the end of political institutions, may be more respected;

15
Vide Dunning, History of Political Theories (1920) Indian Ed., 1967, Ch. III).
 88

and also, that the future claims of the citizens, being directed by simple and
incontestable principles, may always tend to the maintenance of the constitution,
and the general happiness.

For these reasons the national assembly both recognize and declare in the
presence of the Supreme being, and with the hope of his blessing and favour the
following sacred rights of men and citizens……

The philosophy underlying this doctrine of inalienable rights, superior to

the civil rights, may best be explained in the words of a contemporary political
thinker, - Thomas Paine:

―… all men are born equal and with equal Natual Rights‖ 16

Man did not enter into society to become worse than he was before, not to
have fewer rights than he has before but to have those rights better secured. His
natural rights are the foundation of all his civil rights…. Natural rights are those
which appertain to man in right of his existence. Of this kind are all the
intellectual rights, or rights of the mind and also all those rights of acting as an
individual for his own comfort and happiness which are not injurious to the
natural rights of others. Civil rights are those which appertain to man in right of
his being a member of society. Every civil right has for of which his individual
power is not, in all cases, sufficiently competent. Of this kind are all those which
relate to security and protection.

From this short view it will be easy to distinguish between that class of
natural rights which man retains after entering into society and those which he
throws into common stock as a member of society.

From these premises two or three conclusions will follow:

First, that every civil right grows out of a natural right; or in other words, is a
natural right exchanged.

Secondly that civil power properly considering as such is made up of the

aggregate of that class of natural rights of man which becomes effective in the
16
Thomas Paine, ―Rights of Man‖ (1791-92) (1958 Everyman Edn.), pp. 42, 44-5.
 89

individual in a point of power, and answers not his purpose, but when collected to
a focus becomes competent to the purpose of everyone.

Thirdly, that the power produced from the aggregate of the natural rights,
imperfect in power in the individual, cannot be applied to invade the natural rights
which are retained in the individual, and in which the power to execute is an
perfect as the right itself‖.17

A most sticking feature of the federal Constitution of the U.S.A. however,

is that there was no Bill of rights appended to the original Constitution as framed
by the Convention of 1787 and brought into force in 1789, even though the
constitution contained certain specific limitations upon legislative power, such as
the prohibition of bill of attainder and ex post facto low.

There was, in fact, a proposal in the Convention that a Bill or rights should
be inserted in the constitution but it was defeated. In the results, the Constitution
of 1787 contained no guarantee of those ‗inalienable rights‘ which were envisaged
by the Declaration of Independence, such as freedom of speech, assembly,
religion and the like.

But as soon as the Federal Constitution was adopted, the absence of a Bill
or rights was felt by some of the leaders of whom Jefferson was the spokesman,
and some States demanded the incorporation of a Bill or Rights as a condition for
their ratification of the Constitution. Jefferson pointed out the fallacy of the
assumption that representatives of the people could not be arbitrary and that a
representative Legislature required no constitutional limitations upon its powers.
So said Jefferson:

He also met the usual arguments against the adoption of a Bill of Rights thus:

―The declaration of rights is, like all other human blessings alloyed with some
inconveniences and not accomplishing fully its object. But the good in this
instance vastly overweight the civil…. Experience proves the inefficacy of a Bill
of Rights. True. But though it is not absolutely efficacious under all
circumstances, it is of great potency always and rarely inefficacious… There is a
1
7 Thomas Pain, ―Rights of Man‖ (1791-92) (1958 Everyman Edn.), pp. 42, 44-5.
 90

remarkable difference between the characters of the inconveniences which attend

a Declaration of rights and those which attend the want of it. The inconveniences
of the Declaration are that it may cramp Government in its useful exertions. But
the evil of this is short-lived, moderate and reparable. The inconveniences of the
want of this are short-lived, moderate and reparable. The inconveniences of the
want of a Declaration are permanent, afflicting and irreparable‘. They are in
constant progression from bad to worse. The executive, in our governments, is not
the sole; it is scarcely the principal, object of my jealousy. The tyranny of the
legislatures is the most formidable dread at present and will be for many years‖. 18

The unmistakable direction in which the Americans took a step in advance

of the French people in importing the concept of the inalienable natural rights in
an ornamental not stop at reciting these rights in an ornamental Preamble to the
Constitution, but adopted them as a part of the constitution which could serve as a
legal limitation on the powers of each of the organs set up by the Constitution like
any other mandatory part of that organic instrument and would be enforceable
by the courts to invalidate legislative and executive acts that might transgress
these inalienable rights.

A modern exposition of this doctrine, as understood by the American

Supreme Court, is to the found in the case of Board of Education v. Barnett:19

Another reason behind the adoption of the Bill of Rights was that if there
was a justicable guarantee of individual rights in a written Constitution, the
Judiciary would protect the individuals against their violation by the Legislature
and the Executive, Judicial review thus became an inseparable concomitant of
fundamental rights. In the words of Madison20:

―When, therefore, the States, as a condition for their ratification of the Federal
Constitution, insisted upon the inclusion of a Bill of Rights, the demand was
readily conceded and in the very first Congress, Madison proposed amendments to
the text of the Constitution which ultimately led to the Bill of Rights, incorporated
in the first ten amendments of the Constitution which took place simultaneously in
18
Dumbauld, Political Writings of Thomas Jefferson, pp. 127-8; Jefferson‘s Works, Vol. III, p.4
19
Board of Education v. Barnette, (1943) 319 U.S. 624.
20
1 Annals of Congress, 439.
 91

the year 1791 that is, two years after the Constitution had been brought into
force.‖

It is also noticeable that even after the adoption of the Bill of Rights in the
Constitution, the doctrine of natural law and natural rights has wielded a potent
force in the United States in safeguarding individual rights and in expanding the
Constitution in that behalf. Thus, in United States v. Cruikshank, 21 it was said that
the right of the people to assemble peaceably 22 existed from long before the
adoption of the constitution of the United States and was derived ―from those laws
whose authority is acknowledged by civilized man throughout the world.‖
Similarly has it been said often and often, that the ‗Due Process: clause in the
Fourteenth Amendment embodies the ‗fundamental conceptions of justice. 23 or a
‗demand for civilized standards which are not defined by the specifically
enumerated guarantees of the Bill of Rights‖24 or ‗a fundamental fairness essential
to the very concept of justice, 25 the very substance of individual rights of life,
liberty, property.26

The Due Process Clause has thus come to be treated as an expression of

the faith that. Thus emerged the concept of ‗a perpetual charter of inestimable
human liberties27 which would serve as a limitation upon any government power 28
so that it might not be used tyrannically against the individuals subject to its
authority. In the words of Black, J., in Adamson v. California, 28 the provisions of
the American Bill of Rights: were designed to meet ancient evils. But they are the
same kind of human evils that have emerged from once that is established, it
become the duty of the Courts ―to enforce these ―limitations and restraints‖
against authority.

Another most noticeable feature of the history of fundamental rights in the

U.S.A. is that though the Bill of rights was, in its terms, addressed to the federal

21
U.S. v. Cruikshank, (1975) 92 U.S. 543; see also Loan Assocn. V. Topeka, (1870) 20 Wall. 655 (663).
22
First Amendment to the American Constitution; Art. 19(1) of the Indian Constitution.
23
Twining v. New Jersey, (1908) 211 U.S. 78; Palko v. Connecticut, (1937) 302 U.S. 319.
24
Louisiana v. Resweber, (1947) 329 U.S. 459.
25
Lisenba v. California, (1941) 314 U.S. 219 (236); Hebert v. Luisiana, (1926) 272 U.S. 312 (316); Rochin v.
California, (1952) 342 U.S. 165; Joint Anti-Fascist Refugee Committee v. McGrath, (1951) 341 U.S. 123.
26
Hurtado v. California, (1884) 110 U.S. 516.
27
Mapp v. Ohio, (1961) 367 U.S. 643 (655).
28
Adamson v. California, (1947) 332 U.S. 46.
 92

Legislature or Government,29 by the use of the words – Congress shall make no

law‘, the Supreme Court has eventually come to realize that there is no reason
why, on principle, the Bill of rights in the federal Constitution should not be
binding upon the States as well. By judicial exposition, thus, the first Ten
Amendments have been held to be applicable to the States. This conclusion has
been reached through the medium of the 14th Amendment (which is applicable to
the States) holding that the ‗Due Process‘ clause in that Amendment includes the
rights embodied in the First Ten Amendments.30

As explained by Cooley31 it is not necessary to incorporate any express

prohibition, as the Indian Constitution (Art.13) has done, that the Legislature shall
not make laws violating the fundamental rights declared in a written constitution;
the very incorporation of such rights in the constitution, in a mandatory form,
operates as a limitation on legislative power.32

There have indeed been some people, mostly British33 who have
questioned the utility of having a Bill of Rights, that is to say, a declaration of
Fundamental Rights in a constitution, but to-day that view must be said to have
been rejected by the history of the world because if it was utterly useless or futile,
almost every written Constitution made since the constitution of the United States,
and more particularly, those made since the two World Wars, would not have
adopted such declarations. As pointed out earlier (p. 251, ante), even a
representative Legislature is liable to be arbitrary and it was such painful
experience of the American Colonists at the hands of the British Parliament
Itself34 that led the Americans to adopt a Bill of Rights in their State Constitutions
and eventually in the federal Constitution. The treatment received by the Indians
from the British Parliament was not dissimilar 35 and I am glad to find that even a
British, who is otherwise a staunch advocate of British institutions, has
29
This was the view taken by the Supreme Court in 1883 (Barron v. Baltimore, (1833) 7 Pet. 243).
30
Gitlow v. N.y., (1925) 268 U.S. 652; Pointer v. Texas, (1965)380 U.S. 400; Duncan V. Louisiana, (1968)
391 U.S. 145 (148) ; Benton V. Maryland, (1969) 395 U.S. 784.
31
Cooley, Cosntitutional Limitations (1937), Vol. I, p. 359; Cf. Gopalan v. State of madras, (1950) S.C.R. 88
(100).
32
This was echoed by Kania, C. J., in Gopalan v. State of Madras, (1950) S.C.R. 88 (99)-―The inclusion of
Art. 13… in the Constitution appears to be a matter of abundant caution‖.
33
E.G., Bentham, Works, Vol. 2, pp. 497, 501: Jennings, some characteristics of the Indian Constitution
(1953), pp. 3-4, 48, 54; Wheare, Modern Constitutions (1960), p. 49.
34
Cf. Warren, Congress, the Constitution and the Supreme Court (1925), p. 81.
35
As will be seen presently.
 93

acknowledged that it the matter of adopting of Bill of Rights, ―the Indian reaction,
like the American reaction, is in large measure, a product of the British rule‖. 36

When Dicey, in 1885 said that ―the Habeas Corpus Acts declare no
principle and define no rights, but they are for practical purposes worth a hundred
constitutional articles guaranteeing individual liberty.37 and that mere declaration
of individual rights in an instrument may be meaningless if there were no
adequate remedies by which they might be enforced, he was indeed uttering a
profound truth, but makers of new Constitutions in the world since then have
nevertheless assumed that a guarantee of fundamental rights, in a written
constitution was a better safeguard for liberty that leaving the matter to the Courts
to apply the common law to particular cases, particularly because, as I have shown
at the outset, common law does not set any limitation upon the Legislature, as
does a Bill of Rights in a written constitution.

The model of the American Bill of Rights was followed by so many of the
States formed after the First World War38 that the Simon commission‘s pleading
against a Bill of Rights in 1934 was nothing but pleading against history, said the
Commission.39

The dilemma which the joint parliamentary Committee presented, in order

to support the view of the Simon Commission, like all dilemmas, contained an
inherent logical fallacy. The Committee said. 40

Fortunately, the fathers of the Indian constitution were not beguiled by that
dilemma and preferred to follow the famous words of Jefferson (see p. 251, ente)

The reason is that the freedom-fighters in India, like the American

colonists, had learnt from their experience under an Imperialistic regime that even
a representative assembly of men might be arbitrary and hostile to the cherished
rights of men. They could not, therefore, implicity believe the representatives of

36
Ivor Jennings, Some Characteristics of the Indian Constitution 1953, p. 34.
37
Dicey, Law of the Constitution, 10th Ed. 1959, p. 199.
38
E.g., Finland (1919); Iraq (1925); Turkey (1925\4); Lebanon (1926); Eire (1937).
39
(1930) Rep. of the Simon commission (Cmnd. 3569), Vol. I, pp. 22-3.
40
Rep. of the Joint Parliamentary Committee on Indian Constitutional Reforms (1934) Vol. I, Part I, para.
366.
 94

the people, for uncontrolled and unrestricted power might lead to an authoritarian
State.41 Our constitution, therefore,

―… Preserves the natural rights against State encroachment and constitutes the
higher judiciary of the State as the sentinel42 of the said rights…‖

A demand for the guarantee of Fundamental Rights was thus made as early
as the Constitution of India Bill, 1895 drafted so soon after the birth of the
Indian

National Congress in the year 1885. The urge for incorporating a guarantee of
Fundamental Rights in our constitution was later accentuated by the need for
establishing ―a sense of security‖ 43 amongst the different minority groups,
religious, linguistic and social.

This object was developed ever since in different Congress proceedings

and led to the Report of the Committee on Fundamental Rights of the constituent
Assembly and the framing of part III of Draft Constitution in the light thereof.

To-day it is hardly necessary to explain the need for incorporating

fundamental Rights inasmuch as, inspired with the same object as in India, all the
new States of the commonwealth which have been formed out of the British
Empire itself have adopted a Bill of Rights in their respective Constitutions20 44
and most of these Constitutions, curiously, were drafted with the assistance of
British experts.

The urge for embodying guarantees of individual rights in Constitutions

has been further accentuated by the proclamation of universal human rights by the
United Nations, adopting the Universal Declaration of Human Rights in 1948- a
standard to which the member Nations must conform in order to maintain their
international prestige in this age of ―one world‖, and also by the adoption of the

41
Golak Nath v. State of Punjab, A. 1967 S.C. 1643 (1655, 1694).
42
State of Madras v. V. G. Raw, (1952) S.C.R. 597 (605).
43
Report of the Congress Committee, 1928, presided over by Motilal Nehru.
44
Malayasian Constitution, 1957 (Arts. 5-13) : Malta (Constitution) Order in Council, 1961 (arts. 35-48);
Constitution of Nigeria (1963) (Arts. 18-38); Constitution of Uganda, 1966, Part III; Constitution of Kenya,
1963, Arts. 14-30 : Jamaica (Constitution) order in Council, 1962 (ss. 13-26).
 95

International Covenant on Civil and Political Rights in 1966. 45 It is now realized

that ―the recognition of the inherent dignity of the equal and inalienable rights of
all members of the human family is the foundation of freedom, Justice and peace
in the world‖.

Of course, no effective machinery has yet been devised to enable the

national of a State to enforce his fundamental right against his own State or a
foreign State, since only sovereign States can be parties to a cause before the
International Court of Justice. 46 It is also true that the Declaration does not say
that these rights must be protected by the member States by adopting written
Constitutions. In fact the Government of the United Kingdom believes that the
object can be achieved without a constitutional guarantee of the individual rights
specified in the Declaration. It is interesting to note that Great Britain herself
submitted in 1947, a Draft International Bill of Human Rights, which provided
that ‗every State is, by international law, under an obligation to ensure‖ the
effective protection of the freedoms enumerated in the Bill, and, in a Note
appended thereto it was said.

―Some countries, like the United Kingdom, have no rigid constitution and, as a
matter of internal law, it is not possible to surround any provision with any special
constitutional guarantee. No enactment can be given a grater authority than an Act
of Parliament, and one Act of Parliament can repeat any other Act of Parliament.
Therefore, the legal provisions which safeguard human rights can only have as
their special safeguard the solemn international obligations undertaken in the Bill,
together with the firm foundation which there principles have in the deepest
convictions of Parliament and the people. 47

Be that as it may, the very fact that the Charter of the United Nations
affirms the ‗Fundamental human rights‘ constitutes an acknowledgement on the
part of the members of the United Nations that they would commit a violation of

45
The relevant Articles of these international instruments will be reproduced under the various Articles of our
Constitution below, so that the reader may assess how far we have reached the international standard.
46
Art. 34 of the Statute of the Court.
47
Quoted in Lauterpacht, International Law & Human Rights (1950), p. 14 In.
 96

the Charter if any of such rights of the individual is violated.48 Here, then, is a
revival of the ancient doctrine of natural rights being superior to the law of a
sovereign State, after it had suffered an eclipse in the age of historical and
analytical Jurisprudence. And in pursuance of this revival newer State have been
adopting written Constitutions with a guarantee of fundamental Rights. 49

We thus conclude our story of the evolution of natural rights as an ethical

standard at the dawn of civilized society into fundamental rights secured by the
highest law of a land and enforced by its courts of law. Natural rights are no
longer an appeal by philosophers dismayed by the tyranny of a sovereign State
and its laws, or the slogan of revolutionaries seeking to demolish the fabric of the
State itself as a reaction against its monolithic weight, but an effective means of
controlling unlimited power, conditioned by the only proviso that the Courts are
alert and independent.

The lessons which we can draw from the history of natural rights and
which are applicable to fundamental rights guaranteed by a constitution may be
formulated as follows:

(i) Natural rights are those minimal rights of an individual which must be
guaranteed by every society which claims to be civilized. 50
(ii) Natural rights have a sanctity superior to other rights conferred by positive
law. This is the idea which prompted the Americans when they spoke of the
inalienable rights of life, liberty and the pursuit of happiness in their Declaration
of Independence, and to adopt them in the form of a Bill of Rights added to the
Constitution in 1917. 51
(iii) Fundamental rights, like natural rights, are intended to be limitations upon
all government power and all State action. Including legislative, It is to protect the
fundamental rights from legislative encroachment, in particular. That is, against

48
Vide Preamble to the Universal Declaration (para. 6); also Art. 1 of the Convention for the Protection of
Human Rights and Individual Freedoms (1950), to which the members of the Council of Europe are
signatories.
49
E.g., countries of the Commonwealth, such as Malayasia, Malta, Jamaica, Kenya Nigeria, Uganda (1967),
Swaziland (1968), referred to earlier (f.n. 20, ante), also Japan (1946). Italy (1947), Burma (1948).
50
Ritchie, Natural Rights, 1894, pp. 80-1.
51
Hand, Bill of Rights (1958), p. 2.
 97

the temporary passions of a group of men composing the Legislature for the time
52
being, that they were embodied in a written constitution.

3.1 What is a Fundamental Right?

I. A legal right is an interest which is protected by law and is enforceable in

the courts of law, while an ordinary legal right is protected and enforced by the
ordinary law of the land. A fundamental right is one which is protected and
guaranteed by the written constitution of a State.53. These are legal rights in the
sense of justifiability but they are called ‗fundamental‘ because while ordinary
rights may be changed by the Legislature in its ordinary process of legislation, a
fundamental right, being guaranteed by the constitution, cannot be altered by any
process shorter than that required for amending the Constitution itself. Nor can it
be suspended or abridged except in the manner laid down in the Constitution
itself.
II. Without entering into niceties, it may be stated that an ordinary legal right
appertains to private law and denotes the relationship between two private
citizens; a fundamental rights appertains to public law and is a right which an
individual possesses against the State itself. The party bound by a fundamental
right is the State. The distinction was thus explained by the American Supreme
Court : 54
―These rights (i.e., those guaranteed by a Bill of Rights) are different from
concrete rights which a man may have to a specific chattel or to a piece of land or
to the performance by another of a particular contract, or to damages for a
particular wrong, all of which may be invaded by individuals; they are the
capacity, power or privilege of having and enjoying those concrete rights and of
maintaining them in the courts, which capacity, power or privilege can only be
invaded by the State….‖55

52
Marbury v. Madison, (1803) 1 Cr. 137. (No. limitation upon the constituent power).
53
Almost all the written Constitutions promulgated since the 19 th century (the Government of India Acts were
notable exceptions) have adopted declarations of fundamental rights; see a list of such Constitutions in
Lauterpacht‘s International Law and Human Rights, pp. 89-91.
54
Butchers‘ Union v. Cresent City Co., (1883) 28 L. Ed. 585.
55
Samdasani v. Central Bank, (1952) S.C.R. 391; Vidya Verma V. Shivnarain, (1955) 2 S.C.R. 983. (As to
exceptions, if any, in India, see p., post.)
 98

III. It follows that while ordinary legal rights are available against private
individuals, a fundamental right is available only against the State7 and not for the
violation of any such right by a private individual, except where the State supports
such private action.56
IV. On the other hand, the fundamental rights being guaranteed by the
fundamental law of the land, no organ of the State, - executive legislative or
judicial, can act in contravention of such right,57 and any State act which is
repugnant to such rights must be void 58 (vide Art. 13, post)
Once the Constitution is regarded as the supreme law of the land and the powers
of all the other organs of governments are considered as limited by its provisions,
it follows that not only the Legislature but also the Executive and all
administrative authorities are equally limited by its provisions, so that any
executive or administrative act which contravenes the provisions of the
Constitution must, similarly, be void.

As has already been explained (p. 253, ante) no express provision, such as that
contained in Art. 13 of our Constitution, is necessary to achieve this result in fact,
a written Constitution itself operates as a limitation on all constituted powers. 59
Where there is machinery for its enforcement, by way of judicial review. 60

This point is well worth emphasizing inasmuch as in some of our Supreme

Court decisions it appears to have been suggested that while the distribution of
legislative power and some other positive limitations upon the legislative power
e.g. Arts. 286. 304 take away the legislative competence of the Legislature and
render a law enacted in violation of such limitations a nullity. The fundamental
rights constitute mere ‗checks‘ upon the Legislature and do not go to the root of
the legislative competence. So that a law made in contravention thereof is merely
unenforceable. 61

56
Kochunni v. State of Madras, A. 1959 S.C. 725 (740).
57
Dodge v. Woolsey, (1857) 18 How. 331; Scott v. Howard, (1858) 19 How 393.
58
Marbury v. Madisn, (1803) 1 Cr. 137.
59
Hurtado v. California, (1884) 110 U.S. 516 (528-9).
60
Vide Author‘s T.L.L. on Limited Government & Judicial Review, pp. 65-6, 79, 80, 88 et seq.
61
Cf. Behram V. State of Bombay, A. 1955 S.C. 123 (139), Venkatarma Aiyar J.; Sundararamier v. State of
A. P., A. 1958 S.C. 468.
 99

But the contrary view, namely that fundamental rights equally constitute
limitations upon legislative competence is now established by several letter
decisions. 62

The problem created by pre-Constitution laws cannot be allowed to

confound the position created by our constitution as regards post-Constitution
legislation. Nor should it be confused with the issue of ‗waiver‘ The Constitution
conferred the fundamental rights and enjoyed that any law made in contravention
thereof shall to the extent of the inconsistency. Be void. This is nothing but
prohibition upon the Legislator that it must not make a law which contravenes a
fundamental law in the same way as Art. 246 prohibit a State Legislature from
making a law with respect to a subject included in List I of the Legislative Lists.
Any other interpretation would run counter to the basic principles relating to al
Bill of Rights and defeat the very object of embodying fundamental rights in the
Constitution as is well established by the authorities discussed above.

V. In fact, no right cab ne said to be fundamental if it can be over ridden by

the Legislature63 and if there is no authority under the constitution to pronounce a
law to be invalid where it contravenes or violates such right directly or indirectly.

62
Basheshwar v. I. T. Commr., A. 1959 S.C. 149 (184) ; Deep Chand v. State of U.P., A. 1959 C.s. 648
(655); Mahendra v. State of U.P., A. 1963 S.C. 1019; State of M. P. v. Brarat Singh, (1967) 2 S.C.R. 454
(459); Mahal Chand v. State of W.B., (1969) II S.C.W.R. 500 (504).
63
This does not mean that Fundamental Rights, by their nature, are not liable to be amended even by the
process prescribed by the Constitution itself for its own amendment. Even when the amending power is
vested in the Legislature itself, acting under a special procedure or by a special majority, the Legislature,
while so acting, exercises constituent as distinguished from the legislative power. When it is said that
Fundamental Rights operate as limitation upon the Legislature and cannot be amended by the latter, it refers
to the Legislature, acting as the ordinary law-making body, exercising the power to make laws conferred by
the Cosntitution, and not to the Legislature, acting as the constituent body, empowered by the Constitution to
empowered by the constitution to amend the constitution itself. This was a distinction which was ignored by
the majority in Golak Nath‘s case, A. 1967 S.C. 1642 (see p. 25, ante, and more fully, under Art. 368, post),
but which has just been, in effect overruled by another Full Court in Keshavananda‘s case (d. 24-4-73).
The object of guaranteeing fundamental rights in a written Constitution is to withdraw certain basic rights of
the individual from the whims of a temporary majority in the Legislature (Bd. of Education v. Barnette,
(1943) 319 U.S. 624 (638) and not from the body which can amend or change the Constitution itself which
contains the fundamental rights, unless the letter are expressly entrenched against the amending power. All
the questions as to unreasonableness or impropriety that has been raised in this behalf is due to the fact hat the
markers of our constitution vested the constituent power in the Legislature itself (subject, of course, to certain
conditions and limitations). This may be unfortunate. But the courts are not to question the wisdom of the
fathers of the Constitution on this point or to re-write the Constitution by setting up implied limitations upon
the amending power or to invoke a new authority, e.g., a fresh Cosntituent Assembly, to amend the
Constitution, where none has been prescribed by the Constitution itself. A fundamental right is
‗transcendental‘ because it transcends the legislative power and not the constituent power.
 100

Both in the U.S.A.64 and in India, 65 this authority is the judiciary. As was observed
by Shastri J. in Gopalan V. State of Madras.
That makes for the distinction between the rights included in Part III and
those included in Part IV of our Constitution. The former are justicable while the
letter is not (seeing under Art. 37. Post) that is why the former are termed
‗fundamental rights‘ while the later are termed ‗Directive Principles‘ This
Directives, if implemented by the State, will confer some benefits on the
individual. E.g. living wage, decent standard of life (Art. 43) and the like, but
nobody can compel the State to implement such Directives by an action in a Court
of law.

VI. A Special future of Fundamental Rights under the Indian constitution is

that not only the rights themselves, but the constitutional remedy to move the
Supreme Court for their enforcement is also guaranteed as a fundamental rights
(Art 32.) as a result of which this remedy and the power of judicial review
conferred upon the Supreme Court in this behalf cannot be taken away by
legislation66 or by anything short of amendment of the Constitution. It is a
substantive right to the aggrieved individual, so that even a law which renders
nugatory or illusory the exercise of the Supreme Court‘s powers under Art. 32 is
void,67 except where the constitution itself shields a law from challenge on the
ground of contravention of fundamental rights e.g. Art 31 (5) 31A-31C.
VII. Because the remedy under Art. 32 is guaranteed by the Constitution, a duty
is imposed upon the Supreme Court to protect the fundamental rights, - to perform
the role of ‗a sentinel on the qui vive.68
VIII. In the ultimate analysis, it is this constitutional remedy, - which is itself
guaranteed as a fundamental rights, namely, the right to move the Supreme Court
for an appropriate writ or order to enforce a fundamental rights, under Art. 32, -
which distinguishes a fundamental right from other rights.
There are indeed a number of rights created by the constitution itself which are
outside Part III of the Constitution. These must be called constitutional rights as

64
Board of Education v. Barnette, (1943) 319 U.S. 624.
65
Gopalan v. State of madras, (1950) S.C.R. 76 (204-5).
66
Kochunni v. State of Madras, A. 1959 S,C, 735 (729).
67
Gopalan v. State of madras, (1950) S.C.R. 88 (131, 284, 332-3).
68
State of Madras v. Row, A. 1952 S.C. 196 (199).
 101

distinguished from legal rights inasmuch as they are created by the Constitution
and not by ordinary law, e.g. the right not to be subjected to taxation without
authority of law (Art.265) ; the right not to be subjected to laws interfering with
the freedom of trade (Art. 301) or unreasonable restrictions thereupon imposed by
a State Legislature (Art. 304 (b)) ; the right of a Government servant not to be
dismissed by an authority subordinate to that by which he was appointed or
without an in query on the charges leveled against him (Art 311). These
constitutional rights are analogous to fundamental rights on the following points;

(i) these constitute a limitation on legislative power in the same way as the
fundamental rights in Part III do and any law made in contravention thereof shall
be void. In the same manner.69
(ii) Being provisions engrafted by the Constitution, they cannot be taken away
without an amendment of the Constitution, since no exception in that behalf has
been made by the Constitution.70
(iii) The foregoing provisions also create justicable rights 1 and the individual
aggrieved may enforce them in a court of law, with this difference that, not being
a fundamental right, a right derived from any provision out side Part III, cannot be
enforced by a petition under Art. 32 before the Supreme Court.71 The remedy is a
suit or even a petition under Art 226 before a High Court.72
(iv) The majority in the recent Full Court judgement in Keshavananda‘s case. 73
Over rules Goluknath, 4a and restores the pre-Golak Nath view that a
Fundamental Right may be amended in the same way under Art. 368 as any other
provision of the constitution.

The distinction between fundamental rights and any other rights derived from a
provision outside Part III of our constitution is thus very slender, namely. Only

69
Automobile Transport v. State of Rajasthan, A. 1962 S.C. 1405 (1418); State of Rajasthan V. Mangilal
1969) 2 S.C.C. 710 (713).
70
Cf. Kerala Education Bill, in re., (1959) S.C.R. 995 (1067-8); Prem Sagar v. Standard Oil Co., (1964) 55
S.C.R. 1030 (1038); Hari Vishnu v, Syed Ahmad, (1955) 1 S.C.R. 1104 (1110-1112); Sangram Singh v.
Election Tribunal, (1955) 2 S.C.R. 1 (1).
71
Ramjilal v. I.T.O., A. 1951 S.C. 97.
72
Atiabari Tea Co. v. State of Assam, (1961) 1 S.C.R. 809.
73
Keshavnanda Bharti v. State of Kerala, d. 24-4-73
Golak Nath v. State of Punjab, A. 1967 SC 1642.
 102

fundamental rights included in Part III are enforceable by a petition before the
Supreme Court under Art. 32.2

3.2 The need for fundamental Rights

The object behind the inclusion of certain individual rights in a Bill of Rights is to
establish a ‗Limited government‘, i.e. a governmental system in which absolute
power is not vested in the hands of any of the organs of the State, The concept of
limited government is what the Americans know as ―a government of laws. And
not of men‖7475. This concept, being the antithesis of the English doctrine of
Parliamentary sovereignty, can be explained only if we analyse the ideological
difference involved in the two concepts.

(A) England – In England, the birth of modern democracy was due to a protest
against the absolutism of an autocratic executive and the English power
discovered in Parliamentary sovereignty an adequate solution of the problem that
faced them. The English political system is founded on the unlimited faith of the
people in the good sense of their elected representatives and unlimited faith of the
not seem to have waned through the lapse of centuries. Though, of late,
detractions from its omnipotent authority have taken place because the ancient
institution at Westminister has grown incapable of managing the myriads of
modern problems with the same ease as in the Victrian age, nonetheless, hardly
has anybody in England through of placing limitations on the authority of
Parliament so that it might properly behave. 76 There are no legal restraints on the
omnipotence of Parliament and there is no authority which can interfere with a
law made by Parliament on the ground that it violates the basic liberties of the
people, if, nevertheless, the British Parliament does not invade individual rights,
that is not because it is legally incompetent to do so, but because, as a traditional
champion of liberty77 it would not pass any law ―which any substantial section of
the population violently dislikes‖ 78 except in emergencies.79

74
Constitution of Massachussets, 1780; Art. XXX; Marbury v. Madison, (1803) 1 Cr. 137 (163).
75
Authors T.L.L., pp. 60-61.
76
As to modern trends to the contrary, se Author‘s T.L.L. on Limited Government and Judicial Review, pp.
83-85; S. A. de Smith, constitutional & Administrative Law, (1971), pp. 31-2.
77
Liversidge v, Anderson, (1941) 3 All E.R. 338 (372).
78
Jennings, The Law and the Constitution (1959), p. 148.
 103

But this assumption is not wholly correct nor has it forced well in other lands. 80

(B) U.S.A. – The Founding Fathers of the American Constitution. On the other
hand, had the painful experience that even a representative body might be
tyrannical, particularly when they were concerned with a colonial Empire, Thus it
is that the Declaration of Independence recounts the attempts of the British
―Legislature to extend an unwarrantable jurisdiction over us‖ and how the British
people had been ‗deaf to the voice of justice‖. At heavy cost had the colonists
learnt about the frailty and weaknesses of human nature when the same Parliament
which had forced Charles I to sign the petition of Right (1628) to acknowledge
that no tax could be levied without the consent of Parliament did, in 1765 and the
years that followed. Insist on taxing the colonies, regardless of their right of
representation and attempt to enforce such undemocratic laws through military
rule.
Hence, while the English people, in their fight for freedom against
autocracy, stopped with the establishment of the supremacy of the law 81 and of
Parliament as the sole source of that law, 82 the Americans had to go further and to
assert that there was to be a law superior to the Legislature itself and that it was
the restraint of this paramount written law that could only save them from the
fears of absolutism and autocracy which are ingrained in human nature itself. The
difference between the British and American away of securing ‗the great and
essential rights of the people‘ can hardly be better explained than in the words of
Madison himself.

Though couched in a positive form, the purpose of a Bill of Rights is nothing but
to impose limitations upon the legislative body in another form. 83

All limitations on legislative authority, whether they are in the form of a

guarantee of individual rights of not have the same object viz. the prevention of
dictatorship and despotism. 84 In the words of Justice Miller in citizens savings &

79
See under Art. 21, post: C5, Vol. II, p. 87.
80
Vide Author‘s T.L.L. pp. 46-52, 82-85.
81
Magna Carta, 1215.
82
Petition of Right, 1628; Bill of Rights, 1688.
83
U.S. 516 (531).
84
Board of Education v. Barnette (1943) 319 U.S. 624.
 104

loan Association v. Topeka.85India – As stated earlier (p. 261 ente), the experience
of the founders of the Indian Constitution was exactly similar to that of the
American colonists and the reaction to that experience was also substantially
similar.

There was no such thing 86 as a fundamental right‘ in any of the Government of

India Acts which were naturally framed according to British ideas about
individual rights.

The Indian experience of the application of the Rule of Law in India ws not,
however, altogether happy and there was a strong feeling that it was not
administered with even hands by the foreign rulers in India as in their own land.
The ―Sons democratic System, viz. the Sovereignty of Parliament and the Rules of
Law, could be put in trampling down the rights of man under an Imperial rule.

As early as 1918, thus, the Indian National Congress, at its Bombay session,
demanded a Declaration of Rights of the people of India, including equality of
Indians before the law, subject to which only the Montague-Chemsford proposals
could be accepted by the Congress and the demand was reiterated by the Nehru
Committee87 in 1928 the committee asserted that –

At that time, the idea was not so much to limit the powers of the Legislature in the
constitution of a free country, but to curb the powers of an Imperial Legislature by
incorporating certain limitations in a written instrument, as had been done in
Ireland, and he example of Ireland was in deed cited in the Nehru Committee‘s
Report in support of the scheme to have a written declaration of individual rights,
The Karachi session of the All India Congress accordingly, declared that any
constitution which might be proposed would be acceptable to it only if it
contained certain fundamental rights, as formulated by it.

At the Round Table conference that preceded the making of the Government of
India Act, 1935, therefore, the India leaders pressed for a Bill of Rights in the

86
Except the two particular rights specified in ss. 298, 299, for the enforcement of which, however, no
constitutional remedy was prescribed. No attempt was made, during the continuance of the Act, to enforce
either of these provisions in the courts.
87
Report of the Nehru Committee (1928).
 105

proposed Constitution Act, in order to bind the administration with certain

declaration of individual rights. Thus was, however rejected by the Simon
Commission (see p. 254, ente).

The Joint Parliamentary Committee that followed agreed with the observations as
to the value of a Bill of rights in the form of a dilemma:

―Either the declaration of rights is of so abstract a nature that it has no legal effect
of any kind, or its legal effect will be to impose an embarrassing restriction on the
powers of the legislature and to create a grave risk that a large number of laws
may be declared invalid by the courts because of inconsistency with one or other
of the rights so declared‖.88

These observations were quite natural for Englishmen.

But when the nationalist leaders of India were called upon to frame a Constitution
after independence really came, it was not possible for them to forget their
experience. Naturally, therefore, they preferred to follow the American view 89
represented by the famous words of Jefferson. 90

As has been seen (p. 6, ante), at the very outset of the Constituent Assembly,
Pundit Nehru declared. In his objectives Resolution,91 that the object of the
Assembly was to draw up a constitution –

After the various fundamental rights had been enumerated by the Drafting
Committee, the definition of ‗State‘ was inserted in the Part relating to
Fundamental Rights in order to ensure that these rights should be binding not only
against the administrative authorities but also upon ‗every authority… which has
got the power to make laws‖. 92

And thus were incorporated into our Constitution elaborate provisions, in twenty-
four articles, regarding fundamental rights which were to act as limitations not
only upon the Executive but also upon all legislative 24 authorities (Art. 12), and
88
Rep. of the Joint Parliamentary Committee on Indian Constitutional Reforms, (1934), Vol. I, Part I, para.
366.
89
Cf. State of W. B. v. Subodh Gopal, (1954) S.C.R. 587 (616), Sastri, C.J.
90
See p. 254, ante, Author‘s T.L.L., p. 162.
91
See p. 6, ante.
92
III C. A D., p. 610.
 106

any law made in contravention of any of the Fundamental rights shall be void‘
(Art. 12) the fundamental rights in Part III, thus, shall operate as a limitation on
legislative power,93 as in the U.S.A.

We cannot, for a moment, forget this fact in construing the provisions of out
Constitution; and any application of the English ideas of legislatives supremacy
might be altogether misleading.94

As our Supreme Court has observed –

―The Constitution of India is a written Constitution and though it has adopted

many of the principles of the English Parliamentary system, it has not accepted the
English doctrine of absolute supremacy of Parliament in matters of legislation. In
this respect it has followed the American Constitution and other systems modeled
on it.‖95

How individual rights are secured under different systems – It should not be
supposed that in those countries which have not adopted a Bill of rights as a
limitation upon the sovereignty of its Legislature, there is no protection at all for
the rights of the individual. So far as the executive are concerned. It has been
amply clear by this time that it is possible to protect the individual against any
tyrannical exercise of its powers by ordinary legislation. If it‘s Legislature is
vigilant. The question of constitutional limitation aries only if the individual is to
be protect from excesses of the Legislature itself. Before parting with the topic of
fundamental rights we should note how different approaches to this problem have
been made under different political systems.

3.3 Other constitutions

(A) England – the constitution of England is unwritten, hence, there is in England
no code of Fundamental Rights as exist in the United States of India. This does
not mean, however, that in England there is no recognition of those rights of the
individual without which democracy becomes meaningless. The object, in fact is
secured there in a different way.

93
Deep Chand v. State of U.P., (1950) Supp. (2) of U.P., (1963) Supp. (1) S.C.R. 912 (937).
94
State of W. Bengal v. Subodh Gopal, (1954) S.C.R. 587.
95
Gopalan v. State of Madras, (190) S.C.R. 88 (247).
 107

The Judiciary is the guardian of individual rights in England as elsewhere; but

there is a fundamental difference, while in England the Courts have the fullest
power to protect the individual against executive tyranny, the courts are powerless
as against legislative aggression upon individual rights, In short, there are no
fundamental rights binding upon the Legislature in England.

(a) As against the Executive, - the Courts are the bulwark of individual liberty to-
day , just as it was in the days of absolute monarchy, though the need for
restrictions on individual liberty is pressing under modern conditions even in a
democratic country. As was observed by the Privy Council, -
―No member of the Executive can interfere with the liberty or property of a British
subject except on the condition that he can support the legality of his action before
a Court of Justice.‖96

(b) The English Legislature, on the other hand, being theoretically ―omnipotent,‖
there is no law which it can not change. As has been already said, the individual
has rights, but they are founded on the ordinary law of the land; hence, they can be
changed by Parliament like other laws, so, there is no right which may be said to
be ‗Fundamental‘ in the proper sense of the term. Of course, there are
proclamations of certain individual rights in some constitutional charters and
documents like the Magna Carta and the bill of Rights, but these Charters were
merely declaratory of the existing common law, and were intended to be binding
upon the Executive and not upon parliament.
Owing to the absence of any fetter upon the Legislature, individual rights
may, in England, smoothly give way to the interests of the nation whenever the
representatives of the people so desire, according to the exigencies of the
situation. At any given time, thus, the rights of the citizen in England are merely
the residue of freedom left after the restrictions placed on the activity of the
citizens by the Legislature are defined. 97

All the words of the highest English tribunal –

96
Eshugbayi v. Govt. of Nigeria, (1931) 35 C.W.N. 755 (P.C.).
97
See Wade and Philliips, Constitutional Law, p. 35; Hood Phillips, Constitutional Law, 1957, p. 494; Keith,
Constitutional Law, pp. 16-18; Dicey, Law of the Constitutional, 9th Ed., Ch. V. Allen, Law in the Making,
1947, p. 252.
 108

―All the Courts to-day and not least this House, are as jealous as they have ever
been in upholding the liberty of the subject. But that liberty is a liberty confined
and controlled by law…. It is, in Burke‘s words, a regulated freedom…. In the
constitution of this country, there are no guaranteed or absolute rights. The
safeguard of British liberty is in the good sense of the people and in the system of
representative and responsible government which has been evolved.‖98

Another vital consequence of the supremacy of Parliament is that the

English Courts have no power of judicial review of legislation at all. They cannot
declare any law as unconstitutional on the ground of contravention court made this
self – imposed restriction upon its power as against the Legislature –

―Acts of Parliament are laws of the land, and we do not sit as a Court of Appeal
from Parliament ….. If an Act of Parliament has been obtained improperly, it is
for the Legislature to correct it by repealing it; but so long as it exists as law, the
Courts are bound to enforce it.‖99

It is, therefore, natural to enquire what protects individual liberty against the
inroads of the omnipotent Parliament. The answer is – the sagacity of Parliament
itself, 100 at the back of which lies the inordinate love for liberty which is cherished
by every Englishman, and what is often called the ‗political genius‘ of the English
people – that which enables them to hold the ‗just balance between power and
liberty. 101

98
Liversidge v. Anderson, (1942) A.c. 206, Lord Bright.
99
Lee v. Bude Co., (1870) L.R. 6 C. P. 577 (582).
100
That is to say, ―Parliament is unlikely, except in emergencies, to pass legislation constituting a serious
interference with them (i.e., the liberties highly prized by the people‖) (Halsbury, 2 nd Ed., Vol. 6, para. 435).
101
Cf. MacDermott, Protection from Power, 1957, p. 195.