H.H. Bhagwati, J[1]. –
Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. The limitations on those rights have been enacted in the Constitution itself, e.g. in Articles 19, 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution.
23. The genesis of the declaration of fundamental rights in our Constitution can be traced to the following passage from the Report of the Nehru Committee (1928) :-
“Canada, Australia and South Africa have no declaration of rights in their Constitutions but there are various articles to be found in the Constitution of the Irish Free State which may properly be grouped under the general head “fundamental rights”. The reason for this is not far to seek. Ireland is the only country where the conditions obtaining before the treaty were the nearest approach to those we have in India. The first concern of the people of Ireland was, as indeed it is of the people of India to-day, to secure fundamental rights that have been denied to them. The other dominions had their rise from earlier British settlements which were supposed to have carried the law of England with them. Ireland was taken and kept under the rule of England against her own will and the acquisition of dominion status by her became a matter of treaty between the two nations. We conceive that the constitutional position in India is very much the same. That India is a dependency of Great Britain cannot be denied. That position can be altered in one of two ways-force or mutual consent. It is the latter in furtherance of which we are called upon to recommend the principles of a constitution for India. In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances”.
24. At the Round Table Conference that preceded the making of the Government of India Act, 1935, therefore, the Indian leaders pressed for a Bill of Rights in the proposed Constitution Act, in order to bind the administration with certain declarations of individual rights. This was, however, rejected by the Simon Commission with these observations :
“We are aware that such provisions have been inserted in many Constitutions, notably in those of the European States formed after the War. Experience, however, has not shown them to be of any great practical value. Abstract declarations are useless unless there exist the will and means to make them effective.”
25. The framers of our Constitution however followed the American view represented by the famous words of Jefferson in preference to that expressed by the Simon Commission :-
“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 a declaration are permanent, afflictive 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…………”
(Vide Basu’s Commentary on the Constitution of India, Vol. I. p. 74)
and incorporated the fundamental rights in Part III of our Constitution.
26. The object sought to be achieved was as the preamble to the Constitution states “to secure to all its citizens : JUSTICE, social, economic and political; Liberty of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity of the Nation” : and Article is provided :
“13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void………”
“Laws in force” were defined in Article 13(3) to include :
“Laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas”
and they were declared void, in so far as they were inconsistent with the provisions of this Part, to the extent of such inconsistency. As regards laws to be enacted after the commencement of the Constitution, the State, in the wider significance of the term as including “the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India” (Vide Article 12) was enjoined not to make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause was to the extent of the contravention declared void. It will be seen that the prohibition was thus effective both against past laws as well as future laws and both were equally void in so far as they were “inconsistent with” or “in derogation of” the fundamental rights enshrined in Part III of the Constitution. No distinction was made between the past laws and future laws in this respect and they were declared void to the extent of the inconsistency or the extent of the contravention as the case may be, leaving, the unoffending parts thereof untouched.
27. It will be also seen that under Article 13(2) an admonition was administered to the State not to enact any law which takes away or abridges the rights conferred by this Part and the obligation thus imposed on the State enured for the benefit of all citizens of Bharat alike in respect of all the fundamental rights enacted in Part III of the Constitution. No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy.
[1] This is an excerpt from judgment of Justice H.H. Bhagwati in Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan and another (1958).