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HOW STATES CAN LIMIT THE CONSTITUTIONAL RIGHTS AND THE APPLICABILITY OF CONSTITUTIONAL PRINCIPLES TO STATE REGULATIONS?

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Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.

This article is written by Vikash Kumar Raj of BBA LLB, an intern under Legal Vidhiya

Abstract

This legal research paper examines the intricate balance between individuals of the country, their constitutional rights and the authority of states to impose limitations and how the state applies the constitutional principles to state regulations in India to create a relationship between the state authority and individual rights. While the Constitution serves as the supreme law of the land; but it also provides provisions which helps the state possess certain powers to regulate and restrict these rights for compelling reasons to maintain the ‘law and order’ all over the State. Through a detailed examination of relevant case laws, this paper explores the constitutional framework, judicial doctrines, and historical context that shape the boundaries within which states can limit constitutional rights.

Keywords

Constitutional Rights, Reasonable Restrictions, Power of Parliament, Jurisdiction of State

Introduction

Indian Sub-Continent has become a major player in the ever-growing and ever-changing world politics for a very long period of time. It has tried to remain a significant benefactor for the globe, from economical aspects to political aspects. India has gained recognition and fame for its work on the Constitution of India, which took precisely 2 years, 11 months, 17 days to be completed on 26th November, 1949. This document is one of the largest legal documents till now, which was inspired from almost all the constitutions of that era. The Constitution of India, has adopted multiple Constitutional principles from various legal statutes available from other nations, these principles are as follows:

These Principles have played a major role in the Framework of the Constitution, and they have been affecting the current status of legal provisions. The Framers of Constitution kept enough flexibility and rigidity, to hinder the attempts of any lawbreaker to use these provisions for his or her own benefits. They also provide a gateway for future lawmakers to amend any regressive or deuterating provision from any legal document or statutes, which is not applicable or may not be useful in present or future needs.

These Constitutional Rights and Principles provided in the Constitution of India help manage and maintain peace in the country since, the fall of British Rule in India, and after the framing of the Constitution of India.

What are Constitutional Rights?

In the context of the Indian Constitution, the term “Constitutional Rights” generally refers to the privileges and arrangements that are established and guaranteed by the constitution. Thеsе freedoms include, not just the fundamental rights (which are a subset of Constitutional rights). The Constitution of India is a comprehensive document that encompasses a wide-range of freedoms and arrangements to safeguard the privileges, liberties, and well-being of its citizens.

These constitutional rights are provided expressly and implicitly in the Constitution of India and other statutes, but the State, which has made these laws can also exercise its power under Article 368[1] which provides that:

‘Part-xx Article 368 (1) of the Constitution of India grants constituent power to the State to make formal amendments and empowers our Parliament to amend the Constitution by way of addition, modification or repeal of any provision in it, according to the procedure and process laid down therein, which is different from the procedure for ordinary legislation.’[2]

In the year 1215, the Ruler ‘John of Britain’ marked a Contract which is known as Magna Carta. The Magna Carta also known as the “Great Charter,” has a historical importance as its impact in the advancement of the guidelines of Constitutional Law. The First codified Constitution of the world was the Constitution of the US of America which was written in 1787 and enacted from the year of 1788. It comprised of a Preamble, 7 Articles and a closing endorsement alongside Bill of Rights.

And India was inspired and it provided some drafts of documents such the Government of India Act 1919, the Indian Councils Acts of 1861, 1892 and 1909, the Government of India Act of 1935 and also the Indian Independence Act of 1947. These all played a major role and helped develop the Constitution of India. Since, after the framing of Constitution of India, the people of India have enjoyed numerous constitutional rights, including civil and political rights, fundamental rights, social rights, and economic rights. Constitutional rights are an after-effect of the Indian Constitution, and their crux can easily be understood by understanding the origin of the Constitution.

The court has also enhanced the scope of Article 21 by recognition of the ‘Right to Privacy’ as a fundamental right by the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)[3] has significant implications for state surveillance and data protection laws in India. Courts are now called upon to adjudicate disputes involving the balance between individual privacy rights and state interests in national security and law enforcement. The Chief Justice also stated “An issue like privacy could never have been anticipated to acquire such level of importance when the Constitution was been contemplated. Yet, today, the times we live in necessitate that it be recognized not only as a valuable right, but as a right Fundamental in Constitutional Jurisprudence.”[4]

Why do we need Constitutional Rights?

It is a simple question, but a powerful one. We need constitutional rights to protect the interest of the citizens of a nation, more specifically Indian citizens. These ‘Rights’ must be laid down in such a way that they protect the day-to-day working and functionality of the citizens. We can better understand this reason, with reference to a popular case law:

Maneka Gandhi v. Union of India[5], where the petitioner Maneka Gandhi’s passport was issued on 1st June 1976 in accordance to the laws provided under the Passport Act of 1967. On 2nd July 1977, the Regional Passport Office resided in New Delhi, had ordered her to surrender her passport to the authority of police or Airport authority. The petitioner or Maneka Gandhi was also not given any sufficient reason for this arbitrary and unilateral decision provided by the External Affairs Ministry, citing they worked in public interest.

The petitioner approached the Supreme Court by invoking its writ petition under Article 32 and contending that the State’s act of impounding and forcefully apprehending her passport was a direct assault on her Right of Personal Liberty which was guaranteed by Article 21. It was also implied to mention that the Supreme Court in Satwant Singh Sawhney v. Ramarathnam[6] held that right to travel abroad for a citizen is well within the ambit of Article 21, although the apprehension and extent to which the Passport Act diluted this particular right was unclear.

Judgment was provided by court on 25th January 1978 and it drastically melded the landscape of the Constitution of India. This judgment widened the already wide Article 21’s scope hugely and it realized the goal of making India a welfare state, as assured in the Preamble of the Indian Constitution. The unanimous judgement was given by a 7-judge bench.

The Jammu and Kashmir Reorganisation Act, 2019, makes a landmark and a significant milestone in the history of Indian constitutional law and the political landscape of the disputed region mentioned in the Act. Passed by the Parliament of India on August 5, 2019, this act led to the abrogation of Article 370[7] and also the bifurcation of the state of Jammu and Kashmir into two union territories: Jammu and Kashmir, and Ladakh. The Jammu and Kashmir Reorganisation Act, 2019, started a whirlwind of responses and discussions the nation over. While defenders hailed it as a striking step towards public mix and improvement, critics raised worries about its legitimateness, influence on local independence, and likely repercussions on the delicate socio-political texture of the district.

The act proposed in India also raised international eyes, with neighbouring countries expressing apprehensions and distaste about the unilateral alteration of the ‘status quo’ in Jammu and Kashmir and the effects and implications for regional security and peace of that region.

The Jammu and Kashmir Reorganisation Act, 2019, represents a watershed moment in Indian constitutional history, signalling a paradigm shift in the approach towards governance and integration of the region. While its drawn-out suggestions are yet to completely unfurl, the demonstration highlights the public authority’s obligation to tending to verifiable complaints, advancing comprehensive turn of events, and cultivating public solidarity and trustworthiness.

How does the State limit these Constitutional Rights?

The state must adhere the principles and laws provided in the legal statutes of the country in such a way that they are able to function properly and also ensures the safety and rights of other citizens. In any constitutional democracy, a constitutional right can’t only be limited unless any such limitation is authorized by law of that nation. This is the principle of legality. But the state is also given power by that same supreme document that provides rights to the citizens of the nation.

The Constitution of India provides various rights to the people of this nation, one such right is Right to Freedom of Speech and Expression, which is a powerful and also undisputed right in the Constitution provided under Article 19[8], which can be used in multiple forms like Written, Peaceful Assembly, residing in any part of country etc. But, in order to protect the misuse of this power, the same document provides a ’Reasonable Restriction’ on it under Article 19(2), which could be better understood in the case of V.G. Row v. State of Madras[9].

The State is given power by the Constitution to provide reasonable restriction in matters related to-

  1. Sovereignty and Integrity of India
  2. The security of the State
  3. Friendly relations with foreign States
  4. Public order
  5. Decency or contempt of court or morality
  6. Defamation
  7. Incitement to an offence

But, this principle of Reasonable Restriction is similar to a popular case of Schenck vs. U.S.[10] (1919) where Justice Holmes observed, that “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent”

This case laid down the famous test of “clear and present danger“, which was fully endorsed in the recent case of AP v. P. Laxmi Devi.[11]

Another scenario, where the state exercised its power to limit or remove constitutional right is the Removal of ‘Right to Property’ from Fundamental Right to Constitutional Right, which makes it amendable and revokable in certain cases.

In the year 1978, the 44th Amendment Act was enacted by Indian Parliament. Among the many changes that it brought forth, one of the most noticeable and prominent was the removal of the Right to Property from Part III of the Constitution of India. The main reason for the removal of the right to property from the fundamental rights was the issue that arises due to pendency of large number of litigations in courts related to the land acquisition of government for building of Governmental Projects. This sequence of litigations was acting as an impediment to the development process, which included infrastructure development in urban areas and agriculture reforms in rural areas. This was considered necessary to meet the socialistic goals of the nation. Also, it was suggested that the interests of the public and public welfare should come first before completing the private interests of the individuals.

Parliament has the power to meld the pre-existing laws in the interest of the common good. Article 368[12] of Part XX deals with the power of Parliament to amend the Constitution and the procedure thereof is also mentioned in it. It helps keep a check and balance on the arbitrary power of the Parliament of India. Article 368 has been amended by the 24th and 42nd Amendments in the year 1971 and 1976 respectively. As per the given procedure laid out by the Article 368 of the Constitution for amendment of the Constitution or any Statute, an amendment can be initiated only by the introduction of a Bill in either House of Parliament and it should be approved by both the houses.

State is also given the power to limit the Rights of the Citizens whenever there is any ‘National Emergency’[13] or ‘Constitutional Emergency’[14] or ‘Financial Emergency’[15]. The State is vested this power by the Constitution of India, which enables the State to perform its functions unrestrictedly, and to upheld and maintain law and order. It limits the Rights of the citizens and helps the government to root out the cause of unrest. All the rights are revoked until the end of Emergency, except Article 20 and 21 of the Constitution of India.

Limitations to Limit on Constitutional Rights

The State has the power to restrict or revoke any constitutional right, but their limitations are also limited to a certain degree. The restriction must be in favour of the public welfare and the reason for restriction must be significant enough to make upheld in court. It could be better understood in the landmark case of:

The case focuses around the 24th, 25th, and 29th Amendments made to the Constitution of India, by the Parliament of India during the tenure of our late Prime Minister Indira Gandhi. These amendments were intended to curtail and overshadow the power of the judiciary and expand the scope of powers of the ruling government of India. The Supreme Court of India, in this landmark judgment, ruled that while Parliament has the power to amend the Constitution, but not under any circumstance it could have the power to alter its ‘Basic Structure’. The Court held that certain crucial fundamental features and principles of the Constitution of India, such as the federal character of the Constitution, the supremacy of the Constitution, the independence of the judiciary, the rule of law, and the separation of powers between the executive, legislature, and judiciary, are beyond the amending power and scope of the Parliament.

The ruling in the Keshavananda Bharati case established the doctrine of ‘basic structure’, which places limitations and puts a ‘Check and Balance’ on the law amending power of the Parliament of India. This landmark decision has had far-reaching implications for the Indian constitutional law, as it has serves as check on the powers of the Parliament and stops it to exercise the power to violate the basic principles, to amend the Constitution arbitrarily. The Keshavananda Bharati case is considered a pivotal moment in Indian constitutional history, because as it is affirmed as the supremacy of the Constitution and the principle of judicial review was praised in safeguarding the basic structure of the Constitution.

Article 32[17] of the Constitution of India is often described as the soul of the Constitution. It furnishes residents with a strong system to look for redressal when their crucial privileges are disregarded. This article encapsulates the quintessence of constitutionalism and guarantees that the freedoms ensured by the Constitution are not simply hypothetical but enforceable by and by. Drawing inspiration from various sources, including the American Constitution and the Universal Declaration of Human Rights, they curated Article 32 as a fundamental right to the citizens of the nation that could be invoked directly before the Supreme Court of India. Article 32 serves as a bulwark against executive and legislative who decide to misuse the power given to them. It empowers citizens to approach the highest court of the land when their fundamental rights are infringed upon by the state or any other entity. This provision ensures that the judiciary acts as a guardian of the Constitution and protects the rights of individuals from arbitrary actions.

Conclusion

In conclusion, this research paper underscores the dynamic nature of the relationship between States and Constitutional Rights, as evidenced by the evolving jurisprudence and contemporary challenges confronting the judiciary. By examining key case-laws, this paper elucidates the principles that govern the permissible limitations states can impose on constitutional rights, reaffirming the enduring commitment to upholding individual liberties while recognizing the legitimate interests of the state. It becomes apparent that while individual liberties are fundamental to the democratic fabric of the nation, they are not absolute. The Indian Constitution, while guaranteeing a wide array of rights to its citizens, also recognizes the need for reasonable restrictions to ensure the greater good of society and the maintenance of public order.

Moreover, the evolving socio-political landscape and emerging challenges, such as technological advancements and environmental concerns, necessitate a dynamic approach to the application of constitutional principles, as in the recent development Right to Privacy was recognised under Article 21. As India navigates these complexities, it must remain steadfast in upholding the foundational values of democracy, equality, and justice; and make laws like a progressive nation ought to make in these modern times.

In conclusion, while the limits on constitutional rights in India may be subject to interpretation and debate, the overarching goal remains the preservation of a just and equitable society.

References

[1] The Constitution of India, 1950, § 368

[2]Contributors to Wikimedia projects, Amendment of the Constitution of India – Wikipedia, Wikipedia, the free encyclopaedia (Nov. 27, 2009), https://en.wikipedia.org/wiki/Amendment_of_the_Constitution_of_India.

[3] Justice K.S. Puttaswamy Vs. Union of India SC (2017) 10 SCC 1

[4] Quoted by CJI J.S KHEHAR in Justice K.S. Puttaswamy Vs. Union of India SC (2017) 10 SCC 1

[5] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[6] Satwant Singh Sawhney v. D. Ramarathnam, 1967 SCC OnLine SC 21

[7] The Constitution of India, 1950, § 370

[8] The Constitution of India, 1950, § 19, 19(2)

[9] V.G. Row v. State of Madras, 1950 SCC OnLine Mad 255

[10] Schenck vs. U.S. 249 U.S. 47 (1919)

[11] Government of AP v. P. Laxmi Devi, AIR (2008) SC 1640

[12] The Constitution of India, 1950, § 368

[13] The Constitution of India, 1950, § 352

[14] The Constitution of India, 1950, § 256

[15] The Constitution of India, 1950, § 360

[16] Kesavananda Bharati v State of Kerela (1973) 4 SCC 225

[17] The Constitution of India, 1950, § 32

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.

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