By Athik Saleh
At the time when the constitution came into force, the literacy rate in India was below 20 per cent. A country which was mired in both internal and external tensions; people who were still not over an oppressive colonial regime and a bloody partition – India was, in short, a mess.
Most of the developed world looked at democratic India as an experiment that was bound to fail. In the midst of all this, the makers of our constitution decided to incorporate rights that were inalienable in nature.
These rights were considered inherent, or rather fundamental to the existence of a human being.
The purpose of incorporating these rights was to create a polity where individuals are not oppressed by the state’s mightiness and power. However, even these ‘inalienable’ rights are not absolute. They are subjected to certain restrictions which are provided in the constitution itself.
Often, especially during the reign of repressive regimes, these exceptions make the exercise of fundamental rights with their vagueness.
Exception to Article 14 – Right to Equality
Article 14 talks about the Right to Equality before the law and equal protection of laws. This particular right is an embodiment of equality mentioned in the preamble. Ideally, this rule must not have any exception but that is not the case.
Article 14 has both constitutional and other exceptions. Although equality is considered as one of the cornerstones of democracy and Article 14 explicitly talks about equal treatment for people, it does not prohibit equals and unequal being treated differently.
In other words, Article 14 permits reasonable classification of persons, objects, and transactions.
What makes human beings a marvel is the differences between them. Nature has created us with differences. Therefore, it will be unjust to apply every law equally to everyone in society. Same way, it will be also unjust to treat everyone equally when there are always sections of society that will need a different set of legal parameters than others.
This is why Article 14 talks about people being treated on equal footing in equal circumstances rather than treating everyone equally in different circumstances.
In State of West Bengal Vs. Anwar Ali Sarkar, the Supreme Court laid down two conditions to determine whether an impugned legislation is based on reasonable classification or not. The court laid down that:
- “The classification must be founded on intelligible differentia, distinguishing grouped persons or goods from the left out ones of the group.
- The differentia must have a rational relation to the object sought to be achieved by the act.”
The object of the act and the differentia on the basis of which the classification are not the same things but what is important is that there must be a nexus between them.
The court also held that although Article 14 permits reasonable classification, it prohibits ‘class-legislations’.
This line of thought based on ‘reasonable classification’ was revisited by the Supreme Court in E.P. Royappa Vs. State of Tamil Nadu. Instead of the test of ‘reasonable classification’, a new test was introduced in this case which is called ‘doctrine of arbitrariness’.
The Court held that any statute which violates equality is arbitrary in nature. The issue with the introduction of this new test was that the old test was never really done away with. This has created a lot of confusion ever since the judgment in E.P Royappa’s case.
However, the fact stays that, Article 14 does not provide a blanket prohibition on all kinds of inequality. As long as the classification is not arbitrary, artificial, or evasive, the court will not strike down the impugned legislation.
Constitutional exceptions to Article 14
- Immunities enjoyed by the President of India and the Governor of a state are given under Article 361 of the constitution.
- Immunity from any civil or criminal proceedings in any court for publication in any newspaper or television or radio of a substantially true report of proceedings in either house of parliament or legislature of a state (Article 361-A).
- Immunity for members of parliament from any proceedings in any court concerning anything they said or any vote they cast in the parliament or any parliamentary committee (Article 105).
- Immunity for members of legislatures of state from any proceedings in any court with regard to anything they said or any vote they cast in the legislature or any legislative committee (Article 194).
- Immunity enjoyed by diplomats, sovereigns, and ambassadors from criminal and civil proceedings.
- Immunity enjoyed by UNO and its agencies.
- Laws made for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged for being violative of Article 14 (Article 31-C).
Exceptions to Article 19 – Protection of rights regarding Freedom of Speech, etc.
Article 19 can be called the worst enemy of any government because of the content of this article. It contains six rights including the right to freedom of speech and expression, the right to assemble peacefully, the right to form associations, etc.
These rights cannot be curtailed in ways except for those provided in Article 19 itself. Articles 19(2) -19(6) talks about these exceptions.
- Article 19(2) talks about the exceptions to the right to freedom of speech and expression.
With the recent Supreme Court rulings on sedition, the discussion on this topic acquire great importance. According to Article 19(2), any restriction on freedom of speech and expression must be reasonable. The issue lies in what comes after that.
The grounds on which the state can impossible reasonable restriction on this right are sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offense.
The aforesaid grounds give the state a very wide ambit to impose restrictions on free speech and expression. Although the Article specifies that the restriction must be reasonable, words like decency, morality, security of the state, etc. can include anything and everything.
- Article 19(3) impose restrictions on the exercise of the right to freedom of assembly.
Freedom of assembly is an integral part of a democratic nation. The right granted by the constitution is to assemble without arms and in peace, which means that the right does not involve a right to violent, disorderly, or riotous assemblies.
Therefore, according to Article 19(3), the state can impose reasonable restrictions on right to freedom of assembly in the interest of sovereignty and integrity of India and public order.
Apart from this, section 144 of the Criminal Procedure Code empowers a magistrate to impose restrictions on assembly, meeting, or procession if there is a possibility of obstruction, annoyance, or danger to human life, health, and safety, or a disturbance of public tranquility or riot or an affray.
Similarly, Section 141 of the Indian Penal Code talks about when an assembly becomes unlawful.
- Article 19(4) empower the state to impose reasonable restrictions on the right of freedom to form association on the grounds of sovereignty and integrity of India, public order, and morality.
- Article 19(5) impose restrictions on the right to freedom of movement and freedom of residence.
The right to move freely and settle in any part of the territory is integral in a country like India with its diversity as it is important to grow a feeling of unity within the minds of the people.
A parochial outlook will hamper the integrity and unity of India. With these kept in mind, the right to freedom of movement and residence aren’t absolute either.
The state can impose reasonable restrictions on these rights in the interest of the general public and the protection of interest of any scheduled tribe. In a pandemic stricken world, it is more important to understand the exceptions to these rights more than ever.
Restrictions on movement during epidemics are constitutionally valid as they are in the interest of the general public.
- Article 19(6) empowers the state to restrain the right to freedom of profession, etc. in the interest of the general public.
Again, the restriction must be reasonable. The Article also empowers the state to (a) prescribe professional or technical qualifications for practicing any profession, etc., and (b) carry on any trade, etc. by itself to complete or partial exclusion of citizens.
Also, this right certainly doesn’t involve the right to carry on any profession, etc. which is immoral or dangerous in nature. The state has absolute power in regulating or prohibiting any such activities.
One cannot help but notice the recurring phrase throughout the exceptions provided in Article 19 – ‘reasonable restriction’. It’s only natural to ponder what is ‘reasonable. What parameters do we have in place to determine whether the restriction imposed by the state is reasonable or not?
In the case of State of Madras Vs. V.G. Row, the Supreme Court held that the test of reason must be applied to each impugned statute individually and that there can’t be a general or standard pattern of reasonableness. The Supreme Court also held that reasonableness isn’t subjective but is objective.
The purpose of the word ‘reasonable’ is to put a bar on what the state can and cannot do. It means that exceptions to the fundamental right given under Article 19(1) must not be excessive and beyond what is required.
In Chintaman Rao Vs. State of Madhya Pradesh, it was held that reasonableness demands proper balancing between the fundamental rights of the citizens and the state’s concerns.
Exception to Article 21 – Protection of Life and Personal Liberty
The procedural Magna Carta, the heart of the constitution, the most organic and progressive provision in the constitution, there is no shortage of epithets as far as Article 21 is concerned.
All of the abovementioned epithets are indeed deserving ones because this is the provision that protects the life and liberty of an individual. This is the go-to right for activists and courts when they want to enlarge the protection provided to the individuals by fundamental rights.
The inclusion of the right to privacy, right to live with dignity, right to livelihood, etc. are examples of how new rights were read into the more general protection provided by Article 21. However, even a fundamental right as important as Article 21 is not without exceptions.
According to Article 21 itself, a person can be deprived of life and liberty by “procedure established by law”. There have been attempts to equate this with the American ideal of “due process of law” but the court has time and again held that both aren’t the same.
However, with time, the Supreme Court has enlarged the “procedure established by law” to match “due process of law” in spirit.
For instance, in the case of Maneka Gandhi Vs. Union of India, the court held that procedure established by law must right, just and fair and not arbitrary, fanciful and oppressive. With this judgment, it became clear that any exception to Article 21 must go through a more rigorous test than what was earlier thought of.
It is also important that the procedure which is meant to deprive a person of life and liberty must comply with the principles of natural justice.
Exception to Article 22 – Protection against Arrest and Detention in certain cases
This Article is a very important safeguard against arbitrary action by the state. A state, democratic or otherwise, will always fear dissenting voices. Dissent, albeit being an integral part of democratic discourse, does not ally with power structure.
Those in power will always try to curtail actions or words that are at odds with them. With the backing of the police force, those in power can and have always put their dissenters behind bars, for little to no reason. The constitution provides safeguards against arbitrary arrest and detention through Article 22.
It is not all candies and rainbows when it comes to Article 22 in the constitution. No other democratic nation in the world has made preventive detention an integral part of the constitution but India.
Article 22(3) talks about the exception to the general rules provided in clauses (1) and (2) of Article 22. Accordingly, the safeguards mentioned in clauses (1) and (2) will not apply if a person is an enemy alien at the time of arrest or detention and in cases of preventive detention laws.
Treating enemy aliens differently is not news but providing an oppressive measure of colonial raj like preventive detention constitutional validity and making it an exception to how arrestees and detainees are treated in civilized nations is quite unfortunate.
Other Exceptions to Fundamental Rights
Apart from all the above-mentioned exceptions to particular fundamental rights, there are three provisions in part III itself that act as exceptions to fundamental rights.
- Saving of Laws providing for the acquisition of estates, etc. (Article 31A)
This Article was introduced by the first amendment to the constitution in 1951. According to Article 31A, five categories of laws are saved from being challenged and invalidated on the ground of contravention of Articles 14 and 19.
The laws saved by Article 31A are related to agricultural land reforms, commerce, and industry.
- Acquisition by the state of estates and related rights
- Laws enabling the state to take over the management of properties.
- Amalgamation of corporations.
- Extinguishment or modification of rights of directors or shareholders of corporations.
- Extinguishment or modification of mining leases.
- Validation of certain acts and regulations (Article 31B)
This Article saves acts and regulations in the ninth schedule for being in contravention of fundamental rights. The ambit of this Article is larger than Article 31A. This Article protects any law, apart from the five categories of laws mentioned in 31A, for being in contravention of any fundamental rights.
However, in I.R. Coelho Vs. State of Tamil Nadu, there cannot be a blanket immunity to any laws from judicial review. Even if they are included in the ninth schedule. When the ninth schedule was introduced in 1951, the number of acts and regulation was a mere 13 but presently (2020), the number of acts and regulations included in the ninth schedule is 284.
- Saving of Laws giving effect to certain Directive Principles (Article 31C)
This Article was introduced by way of the 25th amendment to the constitution. According to this article, any law that seeks to implement directive principles in Articles 39(b) or (c) won’t be held void on contravention of Article 14 or Article 19.
Conclusion – A Story of Exceptions
One of the foremost criticisms against fundamental rights is about the plethora of exceptions, qualifications, and explanations. Mr. Jaspat Roy Kapoor, a former politician from UP, once remarked that the chapter dealing with fundamental rights should be renamed as ‘Limitations of Fundamental Rights’ or ‘Fundamental Rights and Limitations thereon’.
The idea behind exceptions to fundamental rights is that no right can be absolute and absolute rights will in some way lead to a situation similar to anarchy.
The India experience, however, took exceptions a step further. It has reached a point where powerful governments use these exceptions’ vagueness to curtail individual rights. The same rights are necessary for the development of the conscience of citizens and in turn can help create a proper democracy.
Indeed, the judiciary has played its part in making sure that these exceptions aren’t used to hamper the exercise of fundamental rights.
However, the fact that an archaic British law on sedition is still being used by governments to curtain free speech and expression should make us think about how much the judiciary is actually capable to do?
Unless a change in the discourse of fundamental rights happens at a policy level, we stare at a future that isn’t free from the shackles of overarching governments, because these rights are ‘fundamental’ in every way to our existence. Exceptions must always be that – exceptions.
- State of West Bengal Vs. Anwar Ali Sarkar AIR 1952 SC 75 ↑
- E. P. Royappa Vs. State of Tamil Nadu AIR 1974 SC 555 ↑
- State of Madras Vs. V. G. Row AIR 1952 SC 196 ↑
- Chintaman Rao Vs. State of Madhya Pradesh AIR 1951 SC 118 ↑
- Maneka Gandhi Vs. Union of India AIR 1978 SC 597 ↑
- I. R. Coelho Vs. State of Tamil Nadu AIR 2007 SC 861 ↑