Research Article

Test for infringement of Fundamental Rights


Author: Divvela Jyothirmai Anusha, student of Amity University Mumbai, pursuing BBA LLB (Hons.)

Abstract

As compared to a statutory or a common law right, the effect of treating privacy as a constitutional right is that it is an inviolable right. A basic right provides a touchstone on which the legitimacy of a statute can be determined or the behaviour of a state can be evaluated. Whereas, by a simple act of law, a statutory right can be modified, amended or annulled, a constitutional right is not subject to alteration or annulment at the instance of the legislature. Any abbreviation of a constitutional right must comply with the tests laid down in Article 21, Article 19, or with the basic freedom which it seeks to abbreviate. The effect of the decree is already clear. In a recent case, the Delhi High Court challenged whether, in view of the SC’s privacy ruling, private blackberry messenger messages can be relied upon by the state to challenge a criminal offence against the person.

In order to explain, the constitutional rights referred to in Articles 19 and 21 are, as such, enforceable only against the state or the instrumentality of the state and not against non-state parties. Nearly all the six decisions, however, illustrate the need for data protection laws to regulate non-state parties’ acts as well. In view of this decision, the horizontal application of the right to privacy would need to be checked. In fact, the Lead Judgment calls on the government to create a comprehensive regime for data protection based on the broad guidelines set out in the judgements. In this connection, most of the opinions are discussed in depth, referred to in the judgement as ‘information privacy’.

Privacy is currently accepted as a common law (as opposed to a constitutional) right with respect to non-state organisations. Compliance relies on the facts and conditions of the case. There are restricted provisions with respect to the protection of personal information and confidential data and personal information under the Information Technology Act of 2000 and the rules set out therein.

The concept of infringement of fundamental rights is a vast topic. Through this research paper we will be discussing the tests and different situations which lead to the infringement of fundamental rights.

Introduction

Fundamental rights are those rights that are required for the people of India to grow mentally, morally and spiritually. Because these rights are fundamental or central to people’s life and all-round development, they are called ‘Fundamental Rights’. These are enshrined in the Constitution of India in Part III (Articles 12 to 35).

These include individual rights common to all, such as equality before the law, freedom of speech and freedom of expression, freedom of faith and culture, freedom of assembly (peaceful assembly), freedom of religion (freedom to exercise religion), the right to judicial remedies for the defence of civil rights through writings such as Habeas Corpus, Mandamus, Writ of Prohibition, Certiorari.

Fundamental rights belong to all, regardless of ethnicity, birthplace, religion, caste, sexual orientation, gender, or gender identity. The Indian Penal Code, the Code of Criminal Procedure, and other statutes prescribe sentences for violations of these protections, subject to the discretion of the courts. Although the rights granted by the Constitution that are not fundamental rights are also valid rights protected by the judiciary, violations of fundamental rights can be specifically referred to the Supreme Court of India for ultimate justice under Article 32. The privileges are embedded in many texts, including the Bill of Rights of England, the Bill of Rights of the United States, and the Declaration of the Rights of Man of France. There are six basic rights that the Indian constitution recognises:

  1. Right to equality (Articles. 14-18)
  2. Right to Freedom (Articles. 19-22)
  3. Right Against Exploitation (Articles. 23-24)
  4. Right to Freedom of Religion (Articles. 25-28)
  5. Cultural and Educational Rights (Articles. 29-30), and
  6. Right to Constitutional remedies (Articles. 32-35)

 

Article 19(2) in The Constitution Of India 1949

(2) Nothing in subparagraph (a) of clause ( 1) shall affect or prohibit the operation of any existing law in so far as such law imposes appropriate restrictions on the exercise of the right granted by that subparagraph in the interests of the sovereignty and dignity of India, the protection of the State, friendly relations with foreign States, public order, decency of India, security of the State, and friendly relations with foreign States.

Article 19 (2):

Under Article 19(2), a state can make laws imposing fair restrictions on the exercise of the right to freedom of expression and of speech. The phrase “in the interest of” used in Article 19(2) gives a broad scope to the permissible legislation which can be enforced to impose appropriate restrictions on the right guaranteed by Article 19(1)(a).[1] The reason for this is that while it is necessary to maintain and maintain freedom of speech and expression in a democracy, it is also necessary to impose certain restrictions on that freedom to maintain freedom of expression.

The State can impose fair restrictions on the exercise of the right to freedom of speech and expression by enforcing Article 19(2) of the Constitution on the basis of eight grounds. They are:

  1. Defamation: It applies to comments that damage the image of a man.
  2. Contempt of court: If it crosses the acceptable limit and amounts to contempt of court, limitations can be imposed on freedom of speech and expression.
  3. Decency or morality: Sections 292 to 294 of the Indian Penal Code provide for cases where, in the interest of dignity or morality, freedom of speech and expression is restricted.
  4. Protection of the State: Fair restrictions on the freedom of speech and expression may be imposed in the light of the security of the State under Article 19(2).
  5. Friendly relations with other states: The purpose of the provision is to avoid unregulated malicious ads against a foreign friendly state that can threaten the good links between India and that state.
  6. Incitement to an offence: Added by the Constitution (First Amendment ) Act of 1951. Freedom of speech and expression can not grant citizens the right of inciting people to commit crimes.
  7. Sedition: Sedition encourages all of those practises, whether by words or writing, determined to disturb the tranquilly of the state and force misguided citizens to subvert the government.
  8. Public order: Adopted (first amendment) by the Constitution Act. Public order is disrupted by what disrupts public harmony or tranquillity. ‘In the interest of public order’ covers not only statements that are specifically meant, but also those that tend to lead to chaos.

In addition to the 8 restrictions set out above, the right to freedom provided for in Article 19 of the Indian Constitution shall be removed during the duration of national emergency declared by the President of India. In addition, the President is allowed to suspend the right of people to travel to the Supreme Court to enforce their personal freedom during the duration of operation of the National Emergency

TEST FOR REASONABLENESS:

The term fair can hardly be given an exact meaning. There is no definitive test to assess the rationality of a constraint. However, in this respect, the courts have laid down a few broad propositions.

First, the Court asks what the sweep of the guaranteed constitutional right is, and then the next question to be asked is whether a fair limitation falling beyond the scope of clause ( 2) is enforced by the challenged statute. If, on the other hand, the right sought to be claimed does not fall within the scope of the fundamental rights but is merely concomitant or supplementary to one of them, the test for its constitutional validity would be one of reasonableness.

Landmark judgements

Freedom of press

For freedom of speech, which forms the foundation of democratic freedom and the true functioning of democracy, freedom of the press is crucial. In the case of Romesh Thappar v. State of Madras, the court ruled that the pre-censorship of a newspaper was an infringement of the freedom of the press, which is an integral part of Article 19(1)(a). The judgement added that if a democratic government is to function properly, free political dialogue is important.

In Indian Express Newspapers v. Union of India, the Supreme Court confirmed that press freedom, which is covered by the courts under Article 19(1)(a) of the Constitution, plays a vital role in the proper functioning of democracy.

The Supreme Court of India found in Benet Coleman and Co. vs. Union of India that the limitation on the permissible number of pages in a newspaper is in violation of Article 19(1)(a) and is not a reasonable restriction under Article 19(1)(b) (2).

In the case of Prabhu Dutt v. Union of India, it was argued that freedom of the press requires the right to know about the news and information relating to government administration.

Right to Broadcasting

The courts have accepted the new facets of freedom of speech and expression with the implementation of technology. The right to broadcast and advertise, that is. The Supreme Court ruled in Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana that a person’s privilege to see films on the Doordarshan-State Channel is part of the fundamental right provided for in Article 19(1)(a). In this case, on the grounds that it encouraged the audience to believe in superstition and blind faith, the petitioners protested the show of a serial called ‘Honi Anhonion’ in Doordarshan. As the plaintiff was unsuccessful in presenting evidence of damage caused to the public, the argument was dismissed.

Right to have details

In the case of the Secretary-General of the Supreme Court of India v. Subhash Chandra Agarwal, following the enactment of the Right to Information Act 2005, the court reiterated that, under Article 19(1)(a), the right to information is not a law but a constitutional guarantee.

In Union of India v. Assn. for Democratic Reforms, the Supreme Court declared that it was important to have the right to transmit and obtain information under Article 19(1)(a). It is to ensure that people are conscious and that one-sided data or disinformation will not make democracy a farce.

In Dinesh Trivedi ‘s case, the M.P. Uh, and Ors. The Supreme Court v. Union of India affirmed that it is clear in a liberal democratic society governed by the Constitution that people are entitled to know about the government’s affairs that they elect.

Right to file criticism

In the instance ofS. From Rangarajan v. P. It was asserted by Jagjivan Ram that it is necessary to shape and communicate an opinion in a way that does not trigger defamation to the other person to whom such criticism is addressed and guaranteed under the freedom of speech and expression. The decision added that democracy calls for open debate and critique of policies.

Right of speech beyond national borders

In the case of Maneka Gandhi v. Union of India , the Supreme Court affirmed that freedom of speech and expression was not limited to territorial limits or borders and argued that Article 19(1)(a) contained the right to speak and freedom of expression both in India and abroad.

Right to refuse to speak or Right to silence

The school expelled three students for their failure to sing the national anthem in the Bijoe Emmanuel v. State of Kerala event. Yet the kids took a knee in support while the national anthem was playing. The legality of the students’ expulsion was challenged in court, but the students’ dismissal was upheld on the grounds that singing the national anthem was their constitutional obligation. The Supreme Court, however, in an appeal against the Kerala High Court’s order, held that the students had committed no offense under the Prevention of Insults to the National Honor Act of 1971, and that the dismissal of school children for not singing the national anthem was a violation of their right to freedom of speech.

Freedom to Religion

Under Articles 25, 26, 27 and 28 of Part III of the Indian constitution, the fundamental right to freedom of religion is guaranteed. In the sense of a secular state, this is religious liberty. The secular character of the Indian Constitution has thus been clarified by the Supreme Court of India:

Secularism is neither anti-God nor anti-God, and regards the devout, the antagonistic, and the secular similarly. It excludes God from state matters and ensures that no one is discriminated against on the basis of faith.

Since time immemorial, Indian society has nurtured various cultures and has been home to most of the world’s religions, and the freedom of religion here is of great importance with such a historical lineage. It is not an absolute right, while essential, and is subject to various restrictions. Limitations are-

  • Public order, ethics or wellbeing.
  • Other clauses of the Constitution, Section III.
  • Enforcement of religious practise-related non-religious activity.
  • Welfare for society.
  • Economic reformation.

Throwing open all groups and parts to Hindu religious institutions of a public character.

A solely religious practise is not deemed to be any activity, use or custom that contravenes the above restrictions. In certain cases, laws to govern it would be permissible. A hard question to answer at times is what constitutes a strictly religious practise. The freedom to take a religious procession on a highway, for example, is not part of the fundamental right and where infringement of peace is apprehended, it is possible to enforce appropriate restrictions.

The definition of religion in India has been explained by Dr. Ambedkar as a broad one, as it encompasses different aspects from birth until the death of a human being. If this conception of religion in India were to be adopted by the state, social changes would not be feasible in the country.

The Nehru Committee of 1928 recognised the right of the Sikhs to bear Kirpans. However, neither the Sikh faith nor the clarification of Article 25 entitles a Sikh to possess more than one sword without a licence and to acquire a licence for that purpose. Article 25(2)(b) also empowers the State to make all groups and parts of Hindus available to Hindu religious institutions of a public nature.

As used in Art 25, the word ‘propagate’ owes its roots to the suggestion made by the Sub-Committee on Minorities. The term ‘conversion’ was used as such by the drafters in the draught report, but the term was dropped in the final article, leaving the question open as to whether the word ‘propagation’ contained ‘conversion.’

For a long time, under the assumption that such conversion allows them to marry again without their first marriage being broken, married men whose personal law does not allow bigamy have resorted to the unethical practise of converting to Islam for the sake of contracting a second marriage. This practise was banned by the Supreme Court of India through its decision in the Sarla Mudgal v Union of India case. In Lily Thomas v Union of India, the decision was re-affirmed five years later. In view of the above, the subject matter was taken up by the Law Commission suo moto in order to review the current legal position on Bigamy in India, along with judicial decisions on the subject, and to recommend amendments to the various statutes of family law.

It should also be noted that Article 27 of the Constitution of India provides that no person shall be required to pay any taxes the proceeds of which are expressly appropriated for the payment of expenses for the promotion or maintenance of any particular denominational religion or religion.

 Article 14 of the Constitution guarantees every citizen of India the right to equality. The general principles of equality before the law are expressed and unreasonable discrimination between persons is forbidden. The principle of equality reflected in the preamble is embodied in Article 14.

ARTICLE 14- BEFORE LAW EQUALITY

Article 14 states that ‘the State shall not deny equality before the law or equal treatment of law within the territory of India to any person.’ The two words ‘equality before law’ and ‘equal protection of the law’ are thus included in Article 14. In almost the written constitution, the phrase “equality before law” finds a position that guarantees the basic right of both these phrases. Both of these phrases seek to define what is called “equality of status.” Although both the phrases are sort of equivalent, they do not provide similar meaning.

Exception To Rule OF Law

  • However, the above equality law is not an absolute rule and there are numerical exceptions to it.
  • ‘Freedom in law’ does not suggest that the authority of private citizens is the same as that of government officials. Therefore, a police officer has the right to arrest you, although no other private citizen has this authority. That’s not a breach of the rule of law. However, the rule of law demands that these powers must be clearly established by law and that ordinary courts must punish misuse of authority by public officers.
  • The rule of law does not prohibit the application of specific laws to such groups of people. Members of the armed forces are therefore governed by the laws of the military. Similarly, the Medical Council of India regulates medical practitioners.
  • Some members of society, such as attorneys, physicians , nurses, members of the armed forces and the police, are regulated by special rules in their careers. These groups of persons are handled differently from ordinary people.

References

1. https://lexlife.in/2020/05/21/explained-freedom-of-expression-in-india/

2. https://lawschoolnotes.wordpress.com/2017/04/13/article-19-2-reasonable-restrictions-on-article-19-1-a/

3. https://en.m.wikipedia.org/wiki/Fundamental_rights_in_India

4. https://www.mondaq.com/india/privacy-protection/629084/supreme-court-holds-that-the-right-to-privacy-is-a-fundamental-right-guaranteed-under-the-constitution-of-india

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