Democratic Ideals and the Constitution of India

Since time immemorial, democratic ideals have been deeply ingrained in our social and legal systems. The touchstone of democratic system lies in the fact that the voice of the common man does not go unheard and people are endowed with the utmost ways of ensuring that their discontent with those in power is conveyed to the portals of the high and mighty. The Constitution of India, through Article 19 (1) (a), guarantees that all citizens shall the right to freedom of speech and expression. The pertinent article of the Constitution is very comprehensively worded and brings under its purview a plethora of rights. It is this all-embracing nature of the provision that makes it susceptible to misuse as well. For this precise reason, the right is subject to certain reasonable restrictions [1] which, even though make the right under Article 19 (1) (a) qualified and not absolute, ensure that the particular right does not encroach upon the liberty of another person. The aspect of the right to freedom of expression that the authors wish to deliberate upon is that which pertains to protest and agitation in the form of bandhs. The backdrop of our commentary is formed by the Bharat Bandh which was concluded on July 5, 2010. The nationwide bandh was organized by opposition parties against the hike in fuel prices and the spiraling inflation rate.

Background

The state of Kerala was formed on November 1, 1956 States Reorganization Act [2] . Communist ideology established a string foothold in the state when the first government was formed on April 5, 1957 by the Communist Party of India, popularly known as the Communist Ministry, under the leadership of Elamkulam Manakkal Sankaran (EMS) Namboodhripad. This was a milestone in the history of modern Parliamentary Democracy. The importance of this experiment lay in the fact that it was the first instance of a Communist Party assuming power in the world through universal adult franchise.

Judiciary’s stand on bandhs

The judgment of the Kerala High Court in Bharat Kumar was succeeded by numerous other judgments by various other High Courts as well as the apex Court wherein bandhs have been declared illegal and unconstitutional. Perhaps the most comprehensive rationale for the stand adopted by the judiciary has been provided by the Kerala High Court in the decision in Kerala Vyapari Vavasayi Ekopana Samithi v. State of Kerala [3] . The Hon’ble Court elucidated upon the need for an appropriate check on the rights and liberties of a person, one which is justified by law. The approach taken by the judiciary, while dealing with conflicting interests and balancing of rights stems from the fundamental principles of rule of law. In simple terms, the Court held that the exercise of one’s rights by a person cannot encroach or infringe upon the rights of another person. Rights can be either absolute or qualified, not alternatively provided to one person and denied to another. The Kerala High Court took cognizance of the stand adopted by the Allahabad High Court in Raj Narain v. State [4] and held that rights granted under Article 19 of the Constitution do not include the right to interfere with the liberty of another citizen. This is in consonance with the view adopted by the Supreme Court in as early as 1950 where Mukherjea, J. observed that there cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder [5] .

Thus, the judiciary has always weighed the right of a person to freely express himself at the altar of the other rights enumerated under Article 19. A political party while calling a bandh takes the plea that they are entitled to legitimately exercise their fundamental right under Article 19 (1) (a) and express their discomfiture with the policies of the executive. However, bandhs, as we see today, are a means to forcefully coerce and compel people to respond to the call. The Bharat bandh of July, 2010 as well as the series of bandhs that have marred the political history of the states of Kerala and West Bengal have been testimony to the fact that bandhs inherently infringe upon two fundamental rights of the citizens, viz., the right to move freely throughout the territory of India [6] , and the right to practice any profession, or to carry on any occupation, trade or business [7] . As expounded by the Kerala High Court in the ‘Bandh Judgment’, a call for a bandh holds out a warning to the citizen that he were to go out for his work or open his shop, he would be prevented and his attempt to take his vehicle on the road will also be dealt with [8] . To compel a person to any indoors and not practice his profession, and thereby suffer economic loss due to loss of a working day constitutes an infringement of a citizen’s right under Article 19 (1) (g), more so for daily wage earners. Relying upon the information supplied by newspapers subsequent to the much – celebrated Bharat Bandh on July 5, 2010, people were forced to stay inside their homes and those who ventured outside on this day were severely dealt with by those who advocated the bandh.

This certainly does not constitute a constitutional and legitimate exercise of the right bestowed by Article 19 (1) (a). The basic essential factor in deciding whether a person has a right to do something or not is whether his doing so interferes or not with a similar right given to another citizen. The State has, therefore, to see that no citizen exercises his rights in such a manner that this exercise violates the rights of another citizen. The basic principle contained in these rights is contained in the maxim “Live and let live”. No group or individual can claim that he has a better right to do what he pleases irrespective of the fact that by doing so he is stopping the other from doing what he pleases [9] .

What has been the stand of other High Courts??

The judgment given by the Kerala High Court in 1997 proved to be a pioneer for a series of verdicts given subsequently by High Courts of various states as well as the apex Court. The ‘Bandh Judgment’, as the verdict of the Kerala High Court in Bharat Kumar’s case is popularly known was succeeded by the Supreme Court’s order the decision of the High Court in Communist Party of India (M) v. Bharat Kumar [10] . The Court held that there is no right to call for or enforce a bandh which interferes with the exercise of fundamental rights of others.

The Supreme Court affirmed its earlier stand in James Martin v. State of Kerala wherein it was held that irrespective of whether bandh has any legal sanctity, is of little legal consequence, and there is urgent need to control such acts with an iron hand. It was held that in the name of hartal or bandh or strike no person has any right to cause any inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty or property of any citizen or destruction of life and property and the least to any government or public property. A call for hartal, bandh or strike provides for no license to take law into their own hands and any soft or lenient approach for such offenders would be an affront to the rule of law and a challenge to public order and peace [11] .

Conclusion (or as it may be drafted)

The Constitution also sets out certain permissible limits beyond which the exercise of a right under Article 19 is rendered unconstitutional. These inherent precincts are spelt out in Article 19 (2) which empowers the State to make any law imposing reasonable restrictions on the exercise of the rights conferred by Article 19. The Draft Constitution as settled by the Drafting Committee, when introduced in the Constituent Assembly by the Chairman, Dr. B. R. Ambedkar, was subjected to vehement criticism with regard to the restrictions imposed on the fundamental rights guaranteed under Article 13 (as Article 19 was then numbered). The criticism stemmed from the fact that the fundamental rights under the pertinent article were riddled with so many exceptions that the exceptions have eaten up the rights altogether. Thus, fundamental rights did not remain fundamental unless they are also absolute rights. Dr. Ambedkar, in his speech moving the Draft Constitution on November 4, 1948 responded to all the criticisms by compellingly distinguishing between fundamental and non – fundamental rights. It seems imperative to quote Dr. Ambedkar for the stand adopted by him with regard to the reasonable restrictions on the fundamental rights under Article 19:

“I am sorry to say but the whole of the criticism about fundamental rights is based on 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. The real distinction between the two is that non – fundamental rights are created by agreement between parties while fundamental rights are the gift of law. Because fundamental rights are the gift of the State it does not follow that the State cannot qualify them.” [12]

The contention put forth by Dr. Ambedkar is that the rights of the individual are subject to the welfare of the community. If the rights come in conflict with the rights of another, or the interests of the community, the rights of an individual will have to be restricted so far as the conflict arises. The provision does not curtail the rights of a citizen as it provides an innate safeguard in the form of ‘reasonability of restrictions’ imposed upon the exercise of fundamental rights. The implication of the safeguard is that any law made under any provision of Clause (2) of Article 19 as it stands today, or any law existing from before the commencement of the Constitution and relating to any matter in the said clause is justiciable. This further means that if any such law is found by a competent Court of law in this country as not fulfilling the test or requirements of reasonable restriction on the freedom of speech and expression, then it will be declared unconstitutional and invalid [13] . (PAGE 145)

Thus, the arguments put forward by the advocates of freedom of speech and expression can be adequately met with the contention that the exercise of the rights under Article 19 should comply with the reasonable restrictions elaborated under Article 19 (2).