CONSULTATION PAPERS
NATIONAL
COMMISSION TO REVIEW THE
WORKING
OF THE CONSTITUTION
A
Consultation
Paper*
on
ENLARGEMENT
OF FUNDAMENTAL RIGHTS
May 11, 2001
VIGYAN BHAWAN ANNEXE, NEW DELHI – 110 011.
Email: <ncrwc@nic.in> Fax No.
011-3022082
Advisory Panel
on
Enlargement
of Fundamental Rights
Member-in-charge
Shri Soli J. Sorabjee
Chairperson
Justice
Shri V.R. Krishna Iyer
Members
q
Justice Shri B.P. Jeevan Reddy
q
Justice Shri M. Jagannadha Rao
q
Shri C.R. Irani
q
Prof. Amrik Singh
q
Prof. Andre Beteille
q
Prof. Mushirul Hassan
Member-Secretary
Dr.
Raghbir Singh
ACKNOWLEDGEMENT
This
Consultation Paper on ‘Enlargement of Fundamental Rights’ is based on a paper
prepared by the Advisory Panel on Enlargement of Fundamental Rights under the
guidance of Shri Soli J. Sorabjee, Member-in-charge of the Advisory Panel.
The Commission places on record its
profound appreciation of and gratitude to all members of the panel for their
contribution.
CONTENTS
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Pages |
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I. II. III. IV. V. VI. VII. VIII. IX. |
Introduction
Article
12 of the Constitution Article
14 –Equality before Law Inclusion
of Judicially deduced Fundamental Rights in Part III of the Constitution Preventive
Detention Right
to Property Rights
of Children Article
31B and the Ninth Schedule Capital
Punishment Articles 359 and 359 (1A)
of the Constitution |
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Questionnaire |
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Annexures |
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Annexure-I UK Human Rights Act, 1998
(Section 6 : Acts of Public Authorities) The Constitution of the Republic of South Africa 1996 - Article
8(1): Application Annexure-II The Constitution of the Republic of South
Africa 1996 - Article 9(3)
International Covenant on Civil and Political Rights 1966 - Article 26 Annexure III Universal Declaration of Human Rights of December 10, 1948 - Article 5
International Covenant on Civil and
Political Rights, 1966 - Article 7 Annexure IV Universal Declaration of Human Rights of
December 10, 1948 -Article 13(2) International Covenant on Civil and
Political Rights 1966 – Article 12 (2), (3) and (4) Annexure
V International Covenant on Civil
and Political Rights 1966 – Article 17(1) and (2) Annexure VI The Constitution of the Republic of
South Africa 1996 – Article 29 Annexure VII The Constitution of the Republic of South
Africa 1996 - Article 24 Annexure VIII The Constitution of the Republic of South
Africa 1996 - Article 34 Annexure IX The Constitution of India – Article 39 Annexure
X Second Optional Protocol to the International Covenant on Civil and Political Rights 1966
- Relevant Extracts – Article 1 and Article 2 Annexure XI International Covenant on Civil and Political Rights 1966 – Article 4. |
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INTRODUCTION
1. The working
of the Constitution during the last fifty one years has manifested the need to
afford greater protection to fundamental rights, for example by express
inclusion in the Chapter on Fundamental Rights of certain human rights which
have been judicially deduced or by removing or modifying certain provisions of
the Constitution which in their actual operation have weakened the protection
to fundamental rights - for example, preventive detention, article 31-B and the
Ninth Schedule.
2. The
objective of the Commission and its Advisory Panel is to strengthen fundamental
rights. With that end in view public opinion is sought to be elicited regarding
various articles guaranteeing fundamental rights and questions have been
formulated for that purpose.
3. The
Commission would like to make it abundantly clear that it is seeking the views
and opinions of the public by circulation of this consultation paper and
nothing therein should be considered as the Commission’s views or
recommendations.
4. References
have been made in the paper mainly to the International Covenant on Civil and
Political Rights 1966 [ICCPR]. The reason is that our country has acceded to
the ICCPR on 10th April 1979. The ICCPR is considered as the
International Bill of Rights.
5. The
reference to the Constitution of the Republic of South Africa is because it is
the most recent of the national Constitutions. It has been framed by a
developing country which was also the victim of colonialism and which has
experienced the worst form of racial discrimination in the form of apartheid.
I. ARTICLE
12 OF THE CONSTITUTION
6. Constitutional
guarantees for the human rights of our people was one of the persistent demands
of our leaders throughout the freedom struggle. It was made as far back as in
1895 in the Constitution of India Bill, popularly called the Swaraj Bill, which
was inspired by Lokmanya Tilak. The demand was repeated in Mrs. Annie Besant's
Commonwealth of India Bill finalised by the National Convention of Political
Parties in 1925, by the Motilal Nehru Committee in 1928 at the Karachi Session
of the Indian National Congress in 1932, and by the Tej Bahadur Sapru Committee
in 1944-1945.
7. The
immaculate premise of human rights is that an individual is not a mere mass of
molecules but there is a spiritual spark in every individual irrespective of
race, religion, caste, color, sex or status. The philosophy of human rights is
that human personality is precious and invaluable. It is not expendable. Human
rights flow from the common humanity and the inherent dignity of every human
being and the equal and inalienable rights of all members of the human family.
Human Rights are not gifts conferred by the State. Constitutions and laws do
not create human rights. They are enacted to protect human rights which inhere
in individuals antecedent to constitutions and the laws. Fundamental Rights are
essential for development of the human personality and for full realization of
the human potential.
8. The
subject of fundamental rights was extensively discussed in the Constituent
Assembly. Thereafter the Assembly guaranteed in Part III of the Constitution a
fairly comprehensive array of basic human rights covering a wide spectrum such
as equality, freedom of expression, assembly and association, freedom of
movement, freedom to carry on profession or business, freedom of conscience and
freedom of religion. There are guarantees against retrospective criminal laws,
double jeopardy and self-incrimination and against deprivation of life and
personal liberty. Minorities are guaranteed linguistic and cultural rights, and
the right to establish and administer educational institutions of their choice.
9. Fundamental
rights occupy a pride of place in our Constitution. According to Dr.
Radhakrishnan they were a pledge to our people and a pact with the civilised
world.
10. Fundamental
rights are judicially enforceable. Any law which is violative of
any fundamental rights is void [article 13(1) and (2) of the Constitution]. The
right to approach the Supreme Court directly for enforcement of fundamental
rights is guaranteed as a fundamental right by article 32 of the Constitution,
which was described by Dr. Ambedkar as the heart and soul of the Constitution.
Enforcement of fundamental rights has provided great protection and given relief
to our people.
11. In
India fundamental rights guaranteed by the Constitution, in the absence of
specific constitutional provisions, are mainly enforceable against ‘the State’,
which is defined in article 12 of the Constitution as follows:
“12. Definition – In this part, unless
the context otherwise requires, “the State” includes 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”.
12. Courts
have ruled that where there is pervasive or predominant governmental control or
significant involvement in the activities, such bodies, entities and
organisations fall within the definition of “the State”. As a result of
judicial interpretation, “the State” has been held to include statutory bodies
such as insurance corporations,[1]
nationalised banks,[2] airline
corporations,[3] electricity
boards,[4]
educational institutions[5]
and societies[6] whose
composition and administration are predominantly controlled by the government.
Consequently the reach and extent of protection of fundamental rights has been
widened and greater protection has been afforded especially in the area of
employment against discriminatory practices.
13. Again
there are private, non-State entities which discharge important
quasi-governmental or important public functions, which have repercussions on
the life and welfare of the community. Such entities and bodies can be regarded
as “the State” as would appear from the concurring opinion of Justice Mathew.
“Institutions engaged in matters of high public interest or performing public
functions are, by virtue of the nature of the functions performed, government
agencies. Activities which are too fundamental to the society are by definition
too important not to be considered government function”.[7]
14. In
the UK Human Rights Act 1998 the definition of public authority includes “any
person certain of whose functions are functions of a public nature” [Section
6(3)(b)].
15. It is
a matter for consideration whether the definition of "the State"
should be widened to include such non-State entities and make them subject to
the discipline of fundamental rights. The consequence will be not to make all
actions and decisions of non-State entities subject to judicial review but only
those acts or omissions which are violative of fundamental rights guaranteed in
Part III of the Constitution.
16. Another
matter for consideration is whether the judiciary should be included in the
definition of “the State” in article 12.
17. Divergent
views have been expressed by the Supreme Court on the question whether a
judicial order can be violative of a fundamental right.[8]
18. In
the UK Human Rights Act 1998 the definition of public authority includes “a
court or tribunal”. The provisions of
section 6(3)(a) and (b) are reproduced
in Annexure-I.
19. The
Bill of Rights in the South African Constitution applies to the judiciary by
virtue of Article 8(1) which is reproduced in Annexure I.
20. Another
strand of thought is that the inclusion of the judiciary in the definition of
‘the State’ should be confined to article 21 of the Constitution which
guarantees that “no person shall be deprived of his life or personal liberty
except according to procedure established by law”. It is article 21 which is
mainly invoked in the case of judicial orders. The controversy has centered
round the question whether a judicial order which is without jurisdiction can
be challenged as violative of article 21 of the Constitution.
Your views and responses are elicited
on the following :
QUESTION: 1 Should the definition of “the State” in article 12 be
expanded to include (a) statutory corporations, other bodies and institutions
in which there is substantial State financial assistance or predominant State
control and involvement; (b) Non-State entities, bodies and institutions which
perform quasi-governmental or public functions which have repercussions on the
life and welfare of the community?
QUESTION: 2 Should it be provided in the Constitution that a
judicial order which is without
jurisdiction and null and void can be violative of the fundamental right
guaranteed by article 21?
II. ARTICLE
14 – EQUALITY BEFORE LAW
21. It
is proposed to add a new clause, say clause (2) to article 14 after
re-numbering it as clause (1) thereof, to bring out the full amplitude and
scope of the general guarantee under article 14. The proposed inclusion of
article 14(2) is in the following terms:
Article
14(2): Equality includes the full and equal enjoyment of all rights and
freedoms. Nothing in article 14 shall prevent the State from making any
provision or adopting any measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination, for the purpose
of achievement of equality”.
22. The
prohibited heads of discrimination in articles 15 and 16 of the Constitution
are at present restricted to religion, race, caste, sex or place of birth.
23. It
is proposed that these heads be extended so as to include ethnic or social
origin; colour; age; language; political or other opinion; property; birth.
24. This
would be in keeping with the Constitution of the Republic of South Africa 1996
[Section 9(3)], as also with the International Covenant on Civil and Political
Rights 1966 [ICCPR] [article 26], which India has ratified. [See Annexure
- II for these provisions]
25. In
order to clarify that discrimination whether direct or indirect is prohibited
and to give it a wide operation the following clause is proposed to be added :
Discrimination
shall include any distinction, exclusion, restriction or preference based on
race, religion, caste, sex or place of birth, ethnic or social origin, colour,
age, language, political or other opinion, property, birth, which has the
purpose or effect of nullifying or impairing the enjoyment or exercise on an
equal footing of rights, benefits and entitlements in the political, economic,
social, cultural or any other field of public life.
26. A
similar provision is contained in the Convention on the Elimination of All
Forms of Discrimination Against Women, 1979 [CEDAW] (Part I Article 1) and in
International Convention on the Elimination of All Forms of Racial
Discrimination, 1965 [CERD] (Part I Article 1).
QUESTION 1:
Whether article 14(2) be added after article 14(1) in the following
terms?
Article
14(2): Equality includes the full and equal enjoyment of all rights and
freedoms. Nothing in article 14 shall prevent the State from making any
provision or adopting any measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination, for the purpose
of achievement of equality”.
QUESTION 2: Whether the prohibited heads of
discrimination be extended and the following heads may be added?
Ethnic or social origin; colour;
age; language; political or other opinion; property; birth.
QUESTION 3: Whether
to give the guarantee against non-discrimination a wide operation the following
clause may be added?
Discrimination
shall include any distinction, exclusion, restriction or preference based on
race, religion, caste, sex or place of birth, ethnic or social origin, colour,
age, language, political or other opinion, property, birth, which has the
purpose or effect of nullifying or impairing the enjoyment or exercise on an
equal footing of rights, benefits and entitlements in the political, economic,
social, cultural or any other field of public life.
III. INCLUSION OF JUDICIALLY DEDUCED
FUNDAMENTAL RIGHTS IN PART III OF THE CONSTITUTION
27. As
a result of judicial decisions certain fundamental rights, which are not
explicitly mentioned in Part III of the Constitution which guarantees
fundamental rights, have been inferred or deduced from the specified guaranteed
fundamental rights. These judicially deduced fundamental rights are:
A. Freedom of the Press;[9]
B. Freedom of Information;[10]
C. Prohibition
of torture and cruel, inhuman or degrading treatment or punishment;[11]
D.
Right to travel abroad
and return to one’s country;[12]
E.
Remedy for violation of
article 21;[13]
F. Right to privacy;[14]
G. Right to free elementary education up
to age of 14;[15]
H.
Right to a clean and
healthy environment;[16]
I.
Right to have access to
courts;[17]
J.
Legal aid[18]
28. Many
of these judicially deduced fundamental rights find a place in the ICCPR as
well as in the Constitution of the Republic of South Africa. These rights
afford greater protection to our people. At present they are the outcome of
judicial interpretation of different Articles of the Constitution. In order to
consolidate and impart finality to the beneficial interpretation of the highest
court in the land, it would be advisable to specifically incorporate these
rights in Part III of the Constitution.
[A&B] Freedom
of the Press & Freedom of
Information
These freedoms are the bedrock of
democracy. In a majority of national Constitutions freedom of the press is
guaranteed in specific terms. It is felt that our Constitution should also
expressly include freedom of the press and the right to information as
guaranteed fundamental rights in Part III. As pointed out above, the Right to
Know and the right to information have been spelled out by the Supreme Court in
S.P. Gupta's[19]
case.
QUESTION:
1 Whether Freedom of the Press and
Freedom of Information may be specifically incorporated in Part III of our
Constitution for example in the following terms?
Article 19(1): All
citizens shall have the right:
(a) to freedom of speech and
expression which shall include the freedom of the press and other media, the
freedom to hold opinion and to seek, receive and impart information and ideas
regardless of frontiers.
At present the specified heads of
restriction in article 19(2) are: “the sovereignty and integrity of India, the
security of the State, friendly relations with foreign states, public order,
decency or morality or in relation to contempt of court, defamation or
incitement to an offence”.
QUESTION:
2 In light of the suggested expansion
of article 19(1)(a) whether another head of restriction may be added, namely,
preventing the disclosure of information received in confidence?
[C] Torture and inhuman, degrading and cruel
treatment or punishment grossly violate human dignity. There is no express
provision in the Constitution prohibiting torture or cruel and degrading
treatment and punishment. Our Supreme Court has deduced this freedom from a
reading of article 21, article 14 and the Preamble to our Constitution which
recognizes human dignity as the base of all human rights. A majority of national Constitutions have a
provision prohibiting torture and cruel, inhuman and degrading treatment and
punishment. The Universal Declaration of Human Rights 1948 [UDHR] and the
International Covenant of Civil and Political Rights 1966 [ICCPR] also prohibit
such acts by Articles 5 and 7 respectively. [For text see Annexure
III].
QUESTION: Whether a specific
article may be incorporated in Part III of the Constitution for example in the
following terms?
No
one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.
[D] Right
to travel abroad and return to one’s country. This right has been spelt out
by our Supreme Court in its decisions in Satwant
Singh[20]
and Maneka Gandhi[21] on its interpretation of article 21 of the
Constitution. This right finds a place in the Universal Declaration of
Human Rights [UDHR] Article 13(2) as well as in the ICCPR [Article 12 (2), (3)
& (4)]. See Annexure IV for these provisions.
Fundamental right guaranteed under
article 21 is guaranteed to every person, viz. citizen and non-citizen alike.
QUESTION: Whether right to travel abroad and return
to one’s country be specifically incorporated as a fundamental right subject to
restrictions for example in the following terms?
21A (1) Every person has the right to leave and return
to one’s country.
(2) Nothing
in clause (a) shall prevent the State from making any law imposing reasonable
restrictions in the interest of the sovereignty and integrity of India,
security of India and friendly relations of India with any foreign country.
[E] Remedy
for violation of article 21. The Supreme Court of India has, in the case of
Nilabati Behera[22] and in D.K.
Basu[23]
ruled that a person whose fundamental right under article 21 has been violated
has a right to monetary compensation as a remedy in public law.
It may be mentioned that Article 9(5) of the ICCPR
provides that “anyone who has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation”. India entered a reservation
to article 9(5) when it ratified the ICCPR. The Supreme Court in D.K. Basu has
observed that after its pronouncement in Nilabati Behera the reservation has no
effect.
It is proposed that an enforceable right to
compensation for violation of article 21 be specifically incorporated in Part
III of the Constitution, as for example in the following terms:
Every person who has been illegally
deprived of his right to life or liberty shall have an enforceable right to
compensation.
QUESTION: Whether an enforceable right to compensation should be
provided for example in the following terms?
Every person who has been illegally
deprived of his right to life or liberty shall have an enforceable right to
compensation.
[F] Privacy is recognized as one of the
most invaluable human rights. The right to privacy has been described as “the
right to be let alone”. The object of privacy is to protect one’s “inviolate
personality”. It is said that an intrusion on privacy threatens that liberty
just as assault, battery or imprisonment. It is an offence to personal dignity.
Privacy finds a place in the ICCPR. [For text of the provisions regarding
Privacy in the ICCPR See Annexure V].
Right to
privacy like any other fundamental rights cannot be absolute and should be
subject to reasonable restrictions.
QUESTION: Whether the Right to Privacy may be
specifically included as a fundamental right and subject to reasonable
restrictions for example in the following terms?
(1) Every
person has the right to respect for his private and family life, his home and
his correspondence.
(2) Nothing in clause (1) shall prevent the
State from making any law imposing reasonable restrictions on the exercise of
the right conferred by clause (1), in the interest of national security, public
safety or for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedom of others.
[G] Right to free Education. The importance
of education cannot be overemphasized. "Education is both a human right in
itself and an indispensable means of realising other human rights. As an
empowerment right, education is a primary vehicle by which economically and
socially marginalised adults and children can lift themselves out of poverty
and obtain the means to participate fully in their communities".[24]
Article 45 of our Constitution in
the Chapter on Directive Principles requires the State to “endeavour to
provide, within a period of ten years from the commencement of this
Constitution, for free and compulsory education for all children until they
complete the age of fourteen years”. This provision has not been implemented.
Our Supreme Court in its decision in
Unnikrishnan[25]
has deduced it as a fundamental right.
The right to education has been
accorded the status of a fundamental right by Article 29 in the South African
Constitution [For text see Annexure VI].
QUESTION: Whether the right to free education may
be specifically included in the Constitution for example in the following
terms?
(a) Every child shall have the Right
to Free Elementary Education from the age of five years until he completes the
age of fourteen years; (b) Every person shall have the right to education
beyond the age of 14 years within the limits of the State’s economic capacity
and development.
[H] Right
to clean and healthy environment. The expression “life” in article 21 has
been interpreted by the Supreme Court as the right to live in a clean and
hygienic environment.[26]
Clean and healthy environment has a direct impact on the lives and well being
of our people. The South African Constitution has included this right in its
Bill of Rights by article 24. [See Annexure VII for this
provision].
QUESTION: Whether the right to clean and healthy
environment may be specifically incorporated in the Chapter of Fundamental
Rights for example in the following terms?
Every person has the right
(a)
to an
environment that is not harmful to his health or well-being; and
(b)
to
have the environment protected, for the benefit of present and future
generation, through reasonable legislative and other measures that -
(i)
prevent
pollution and ecological degradation;
(ii)
promote
conservation; and
(iii)
secure
ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development.
[I] Right to have access to courts. Right
to access to Courts is a human right. The right to ‘access to courts’ entails
the right to disposal of a case within a reasonable time. Excessive delay in
disposal of cases leads to denial of this basic human right, erodes the
credibility of the justice delivery system and leads to the emergence of extra
legal system of administration of justice frequently dominated by the mafia.
Access to courts will be meaningful only if there is reasonably quick ‘access
to justice’.
Article
34 of the Bill of Rights in the South African Constitution provides rights to
access to courts. [For text see Annexure VIII].
QUESTION: Whether the right to have access to
courts may be incorporated as a fundamental right for example in the following
terms?
The right of access to courts shall
be deemed to include the right to a reasonably speedy and expeditious disposal
of all cases before all courts, tribunals or other fora and the State shall
take all reasonable steps to achieve the above objective.
[J] Legal
aid is also essential for effective enforcement of the fundamental rights of
the needy and the indigent. article 39A in the Directive Principles of our
Constitution reads as follows:
“39A. Equal justice and free legal aid –
The State shall secure that the operation of the legal system promotes justice,
on a basis of equal opportunity, and shall, in particular provide free legal
aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities”.
By a
liberal interpretation of article 21, the Supreme Court in the case of Madhav Hoskot[27]
held that free legal services to the poor and needy is an essential element of
any “reasonable, fair and just” procedure and ruled: “(1) Where the prisoner is
disabled from engaging a lawyer, on reasonable grounds such as indigence or
incommunicado situation, the court shall, if the circumstances of the case, the
gravity of the sentence, and the ends of justice so require, assign competent
counsel for the prisoner’s defence, provided the party does not object to that
lawyer; (2) The State which prosecuted the prisoner and set in motion the
process which deprived him of his liberty shall pay to assigned counsel such
sum as the court may equitably fix”.[28]
QUESTION: Whether article 39A of the Directive
Principles, which deals with equal justice and free legal aid may be suitably
incorporated in Part III of the Constitution?
IV. PREVENTIVE
DETENTION
29. Preventive detention finds a place in
article 22 of the Constitution. Preventive detention, that is detention without
trial, is a negation of the Rule of Law and the principle of fair trial. A
person is deprived of his or her liberty and incarcerated on the basis of
suspicion. It is an anathema to some minds. Some regard it as a necessary evil
in certain situations where it is not possible to secure evidence of witnesses
who are unwilling to testify because of threat to their lives and their family
members. Experience shows that preventive detention has been frequently
misused. It also provides a pretext for the law enforcement agencies not to
carry out thorough investigations under the existing law and to conveniently
resort to laws providing for preventive detention. It is also felt that there
should be a reasonable ceiling on the maximum period of detention which at
present in certain circumstances can extend to two years.
30. Under article 22(4) of the Constitution,
the Advisory Board to review detention can consist of persons who are or have
been, or are qualified to be Judges of a High Court. It is a matter for
consideration whether the Advisory Board should compose only of sitting and not
retired High Court judges.
QUESTION:
1 (a) Whether preventive detention
should be abolished or (b) whether recourse to preventive detention should be
had only when there is a declaration of emergency under article 352 of the
Constitution or (c) there is internal disturbance in the country?
QUESTION:
2 If ultimately it is decided to
retain preventive detention whether (a) maximum period of detention should not
exceed six months and (b) the Advisory Board to review cases of preventive
detention should be composed entirely of sitting High Court judges?
V. RIGHT
TO PROPERTY
31. Right
to property was a guaranteed fundamental right under article 19(1)(f) and
article 31 of the Constitution. Despite constitutional amendments aimed at
preventing judicial interventions with regard to compensation for acquisition
of property, legislations were struck down on the ground of violation of article
31(2) because of inadequacy of compensation. By Constitution (Forty-fourth
Amendment) Act, 1998 article 19(1)(f) and article 31 were deleted from the
Chapter on Fundamental Rights.
Article 300A was enacted in these
terms:
“300A. Persons not to be deprived of
property save by authority of law – No person shall be deprived of his property
save by authority of law”.
32. Article 300A merely embodies the
principle that there should be a law for deprivation of property. There is no
requirement of public purpose or payment of any sum for acquisition of
property.
33. It is a matter for consideration whether
article 300A may be amended making the existence of public purpose a
requirement for acquisition and also providing for payment of a sum which is
not illusory. In the light of previous experience it is felt that an express
provision be enacted excluding judicial intervention regarding the quantum of
payment, except where it is illusory.
34. Article
12 of the ILO Convention No.107 to which India is a signatory provides that the
tribal populations shall not be removed from their habitual territories without
their free consent except in accordance with the national laws and regulations
for reasons relating to national security or in the interest of national economic
development or of the health of the said populations. The Convention also provides that in case where the removal of
tribal populations is necessary as an exceptional measure, they shall be
provided with lands of quality at least equal to that of the lands they
previously occupied.
35. It
is for consideration that it may be further provided that in a case where the
deprivation of property takes place because of acquisition of agricultural and
homestead lands, the persons so deprived of their lands where they belong to
weaker sections shall be provided with lands of quality at least equal to the
lands they previously occupied or otherwise adequately rehabilitated.
QUESTION:
Whether article 300A may be amended by adding at the end for example the
following words?
Deprivation
or acquisition of property shall be only for a public purpose and upon payment
of a sum which is not illusory. No deprivation or acquisition of property shall
be invalidated on the ground that the sum awarded is inadequate unless the same
is patently illusory :
Provided further that no deprivation
or acquisition of agricultural and homestead land belonging to weaker sections
shall be done without providing the persons so deprived, lands of quality at
least equal to the lands such persons previously occupied or otherwise
adequately rehabilitated.
VI. RIGHTS OF CHILDREN
36. There
is no specific article in Part III of our Constitution dealing with rights of children. The UN Convention
on the Rights of the Child 1989 has been ratified by India. The Convention
consists mainly of four types of rights: (i) the participation of children in
decisions affecting their own destiny; (ii) the protection of children against
discrimination and all forms of neglect and exploitation; (iii) the prevention
of harm to children; and (iv) the provision of assistance for their basic
needs.
QUESTION: Whether
children’s right falling under the heads of non-discrimination, best interests
of child, right to life, survival and development and the needs of the child
may be specifically incorporated in the Constitution, preferably as article
23A?
VII. ARTICLE 31B AND THE NINTH SCHEDULE
37. Article 31B and the Ninth Schedule were
introduced by the Constitution (First Amendment) Act in 1951 with a view to immunise
laws dealing with agrarian or land reforms from challenge on the ground of
violation of fundamental rights. The occasion for the First Amendment was the
invalidation of laws dealing with abolition of zamindari and land reforms by the Patna and Allahabad High Courts.
In the beginning only 13 Acts and Regulations were included in
the Ninth Schedule. Thereafter the list of laws has grown enormously.
Experience has shown that laws which are not in any manner connected with land
reforms or agrarian reforms have been included in the Ninth Schedule in order
to avoid judicial scrutiny of their constitutionality on the ground of
violation of fundamental rights. For example, (i) The Industries (Development
and Regulation) Act, 1951; (ii) The Monopolies and Restrictive Trade Practices
Act, 1969; and (iii) The Foreign Exchange Regulation Act, 1973. This is
contrary to the purpose and object of article 31B.
QUESTION: Whether
article 31B be suitably amended to provide that the laws in the Ninth Schedule
which enjoy immunity from challenge on the ground of violation of fundamental
rights will be those laws which in pith and substance relate to agrarian or
land reforms or laws relating to social security, quantum of reservation and
laws which give effect to the Directive Principles of State
Policy in articles 39(b) and 39(c)? [For text of articles 39(b)
and 39(c) see Annexure IX].
VIII. CAPITAL PUNISHMENT
38. Supreme
Court has upheld the constitutionality of capital punishment in Bachan Singh[29]. There is a growing body of national and
international opinion against capital punishment. The Second Optional Protocol
to the International Covenant on Civil and Political Rights 1966 aiming at the
abolition of the Death Penalty was adopted by the General Assembly in 1989 [A/RES/44/128]
and entered into force on 11th July 1991. [For relevant parts of the
Second Optional Protocol of ICCPR see Annexure X].
39. The
Supreme Court has ruled that death penalty should be imposed in the rarest of
rare cases[30]. An element
of subjectivity is inevitable in that determination. How does one determine
which case is “rare” – leave alone “rarest of the rare”? In practice, it is the
judge’s perception which ultimately tilts the balance for or against imposition
of such a sentence.
QUESTION:
(a) Should capital punishment be abolished? (b) If it is to be retained should
its retention be confined to certain grave offences like waging war against the
government [Section 121 of the IPC], sedition [124A of the IPC] or terrorist
acts?
IX. ARTICLE
359 AND 359-1A OF THE CONSTITUTION
40. The
Supreme Court in the case of A.D.M.
Jabalpur[31] ruled
that the consequence of a Presidential Order passed under article 359 whilst a
proclamation of emergency is in operation was that all fundamental rights stood
suspended during emergency.
41. Thereafter
the Constitution was amended by Constitution (Forty-Fourth) Amendment Act and
it was provided by article 359-1A that articles 20 and 21 cannot be suspended
when a proclamation of emergency is in operation.
42. Under
Article 4(2) of the International Covenant on Civil and Political Rights 1966
[ICCPR] no derogation is permissible even during an emergency which threatens
the life of the nation in respect of certain human rights specified therein. [See
Annexure XI for the text of Article 4]. It is apparent that under ICCPR
more fundamental rights/human rights have been made
non-suspendable/non-derogable.
43. Under
Article 2 (2) of ICCPR "each State Party to the present Covenant
undertakes to take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the rights
recognised in the present Covenant".
44. Apart
from and independently of the ICCPR it is a matter for consideration whether
Article 17 of the Constitution which abolishes untouchability and forbids its
practice and Article 24 of the Constitution which prohibits employment of
children under the age of 14 years in any factory or mine or other hazardous
employment be made non-suspendable by amendment of Article 359.
QUESTION:
1 Whether article 17 and article 24
of the Constitution be made non-suspendable during the operation of a
proclamation of emergency?
45. It
is a matter for consideration whether Article 359-1A may be amended so as to
bring it in conformity with the requirements of ICCPR?
QUESTION:
2 Should Article 359-1A be amended
to provide that Articles 23 and 25 of the Constitution cannot be suspended by a
Presidential Order passed under Article 359 whilst a proclamation of emergency
is in operation?
QUESTIONNAIRE
ON
ENLARGEMENT OF FUNDAMENTAL RIGHTS
I ARTICLE 12 OF THE
CONSTITUTION
No. 1 Should the definition of “the State” in article 12 be
expanded to include (a) statutory corporations, other bodies and institutions
in which there is substantial State financial assistance or predominant State
control and involvement;
|
|
YES
|
NO
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|
(b) Non-State entities, bodies and institutions which
perform quasi-governmental or public functions which have repercussions on the
life and welfare of the community?
|
|
YES
|
NO
|
|
No. 2 Should it be provided in the Constitution that a
judicial order which is without
jurisdiction and null and void can be violative of the fundamental right
guaranteed by article 21?
|
|
YES
|
NO
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|
II ARTICLE 14 –
EQUALITY BEFORE LAW
No. 3 Whether
article 14(2) be added after article 14(1) in the following terms?
Article
14(2): Equality includes the full and equal enjoyment of all rights and freedoms.
Nothing in article 14 shall prevent the State from making any provision or
adopting any measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination, for the purpose of achievement
of equality”.
|
|
YES
|
NO
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|
No. 4 Whether
the prohibited heads of discrimination be extended and the following heads may
be added?
Ethnic or social origin; colour;
age; language; political or other opinion; property; birth.
|
|
YES
|
NO
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|
No. 5 Whether
to give the guarantee against non-discrimination a wide operation the following
clause may be added?
Discrimination
shall include any distinction, exclusion, restriction or preference based on
race, religion, caste, sex or place of birth, ethnic or social origin, colour,
age, language, political or other opinion, property, birth, which has the
purpose or effect of nullifying or impairing the enjoyment or exercise on an
equal footing of rights, benefits and entitlements in the political, economic,
social, cultural or any other field of public life.
|
|
YES
|
NO
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|
III INCLUSION OF
JUDICIALLY DEDUCED FUNDAMENTAL RIGHTS IN PART III OF THE CONSTITUTION
[A&B] Freedom of the Press
& Freedom of Information
No. 6 Whether Freedom of the Press and
Freedom of Information may be specifically incorporated in Part III of our
Constitution for example in the following terms?
Article 19(1): All
citizens shall have the right:
(a) to freedom of speech and
expression which shall include the freedom of the press and other media, the
freedom to hold opinion and to seek, receive and impart information and ideas
regardless of frontiers.
|
|
YES
|
NO
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|
No. 7 In light of the suggested
expansion of article 19(1)(a) whether another head of restriction may be added,
namely, preventing the disclosure of information received in confidence?
|
|
YES
|
NO
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|
[C] Torture and inhuman, degrading and cruel
treatment or punishment
No. 8 Whether a specific article may
be incorporated in Part III of the Constitution for example in the following
terms?
No
one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.
|
|
YES
|
NO
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|
[D] Right to travel abroad and return to one’s
country.
No. 9 Whether right to travel abroad
and return to one’s country be specifically incorporated as a fundamental right
subject to restrictions for example in the following terms?
(a) Every
person has the right to leave and return to one’s country.
(b) Nothing
in clause (a) shall prevent the State from making any law imposing reasonable
restrictions in the interest of the sovereignty and integrity of India,
security of India and friendly relations of India with any foreign country.
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YES
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NO
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|
[E] Remedy
for violation of article 21
No. 10 Whether an enforceable right to compensation should be
provided for example in the following terms?
Every person who has been illegally
deprived of his right to life or liberty shall have an enforceable right to
compensation.
|
|
YES
|
NO
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|
[F] Privacy
No. 11 Whether the Right to Privacy may
be specifically included as a fundamental right and subject to reasonable
restrictions for example in the following terms?
(1) Every
person has the right to respect for his private and family life, his home and
his correspondence.
(2) Nothing in clause (1) shall prevent the
State from making any law imposing reasonable restrictions on the exercise of
the right conferred by clause (1), in the interest of national security, public
safety or for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedom of others.
|
|
YES
|
NO
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|
[G] Right to free Education.
No. 12 Whether the right to free
education may be specifically included in the Constitution for example in the
following terms?
(a) Every child shall have the Right
to Free Elementary Education from the age of five years until he completes the
age of fourteen years; (b) Every person shall have the right to education
beyond the age of 14 years within the limits of the State’s economic capacity
and development.
|
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YES
|
NO
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|
[H] Right to clean and healthy environment.
No. 13 Whether the right to clean and
healthy environment may be specifically incorporated in the Chapter of
Fundamental Rights for example in the following terms?
Every person has the right
(a) to an environment that is not harmful to
his health or well-being; and
(b) to have the environment protected, for
the benefit of present and future generation, through reasonable legislative
and other measures that -
(i)
prevent
pollution and ecological degradation;
(ii)
promote
conservation; and
(iii) secure ecologically sustainable
development and use of natural resources while promoting justifiable economic
and social development.
|
|
YES
|
NO
|
|
[I] Right to have access to courts.
No. 14 Whether the right to have access
to courts may be incorporated as a fundamental right for example in the
following terms?
The right of access to courts shall
be deemed to include the right to a reasonably speedy and expeditious disposal
of all cases before all courts, tribunals or other fora and the State shall
take all reasonable steps to achieve the above objective.
|
|
YES
|
NO
|
|
[J] Legal
aid.
No. 15 Whether article 39A of the
Directive Principles, which deals with equal justice and free legal aid may be
suitably incorporated in Part III of the Constitution?
|
|
YES
|
NO
|
|
IV PREVENTIVE DETENTION
No. 16 (a) Whether preventive detention
should be abolished or (b) whether recourse to preventive detention should be
had only when there is a declaration of emergency under article 352 of the
Constitution or (c) there is internal disturbance in the country?
|
|
YES
|
NO
|
|
Suggestions
No. 17 If ultimately it is decided to
retain preventive detention whether (a) maximum period of detention should not
exceed six months and (b) the Advisory Board to review cases of preventive
detention should be composed entirely of sitting High Court judges?
|
|
YES
|
NO
|
|
V RIGHT TO PROPERTY
No. 18 Whether
article 300A may be amended by adding at the end for example the following
words?
Deprivation
or acquisition of property shall be only for a public purpose and upon payment
of a sum which is not illusory. No deprivation or acquisition of property shall
be invalidated on the ground that the sum awarded is inadequate unless the same
is patently illusory.
Provided further that no deprivation
or acquisition of agricultural and homestead land belonging to weaker sections
shall be done without providing the persons so deprived, lands of quality at
least equal to the lands such persons previously occupied or otherwise adequately
rehabilitated.
|
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YES
|
NO
|
|
VI RIGHTS OF CHILDREN
No. 19 Whether
children’s right falling under the heads of non-discrimination, best interests
of child, right to life, survival and development and the needs of the child
may be specifically incorporated in the Constitution, preferably as article
23A?
|
|
YES
|
NO
|
|
VII ARTICLE 31B AND THE
NINTH SCHEDULE
No. 20 Whether
article 31B be suitably amended to provide that the laws in the Ninth Schedule
which enjoy immunity from challenge on the ground of violation of fundamental
rights will be those laws which in the pith and substance relate to agrarian or
land reforms or laws relating to social security, quantum of reservation and
laws which give effect to the Directive Principles of State Policy in articles
39(b) and 39(c)? [For text of articles 39(b) and 39(c) see Annexure
IX].
|
|
YES
|
NO
|
|
VIII CAPITAL PUNISHMENT
No. 21
(a) Should capital punishment be abolished? (b) If it is to be retained should
its retention be confined to certain grave offences like waging war against the
government [Section 121 of the IPC], sedition [124A of the IPC] or terrorist
acts?
|
|
YES
|
NO
|
|
IX ARTICLE 359 OF THE CONSTITUTION
No. 22 Should article 359-1A be amended
to provide that articles 23 and 25 of the Constitution cannot be suspended by a
Presidential Order passed under article 359 whilst a proclamation of emergency
is in operation?
|
|
YES
|
NO
|
|
No. 23 Whether article 17 and article 24
of the Constitution be made non-suspendable during the operation of a proclamation
of emergency?
|
|
YES
|
NO
|
|
ANNEXURE – I
U. K. Human Rights Act, 1998
Section 6: - Acts of Public
Authorities
(1) It
is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(2) Sub-Section
(1) does not apply to an act if -
(a) as
the result of one or more provisions of primary legislation, the authority
could not have acted differently; or
(b) in
the case of one or more provisions of, or made under primary legislation which
cannot be read or given effect in a way which is compatible with the convention
rights, the authority was acting so as to give effect to or enforce those
provisions.
(3) In this section ‘public authority’
includes -
(a)
a court or tribunal,
and
(b)
any person certain of
whose functions are functions of a public nature.
But does not include either House of Parliament or a
person exercising functions in connection with proceedings in Parliament.
(4) In
sub-section (3) ‘Parliament’ does not include the House of Lords in its
judicial capacity.
(5) In
relation to a particular act, a person is not a public authority by virtue only
of sub-section (3)(b) if the nature of the act is private.
(6) ‘An
act’ includes a failure to act but does not include a failure to -
(a)
introduce in, or lay
before, Parliament a proposal for legislation; or
(b)
make any primary
legislation or remedial.
The Constitution of
the Republic of South Africa 1996
Article 8 (1): Application
The Bill of Rights applies to all
law, and binds the legislature, the executive, the judiciary and all organs of
State.
________________
ANNEXURE – II
The Constitution of
the Republic of South Africa 1996
Article 9 (3): The State may not unfairly discriminate directly or indirectly against
anyone on one or more grounds including race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language or birth.
International Covenant
on Civil and Political Rights 1966
Article 26: all persons are
equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.
ANNEXURE – III
Universal Declaration
of Human Rights of December 10, 1948
Article 5: No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.
International Covenant
on Civil and Political Rights 1966
Article 7: No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.
______________
ANNEXURE – IV
Universal Declaration
of Human Rights of December 10, 1948
Article 13 (2): Everyone has
the right to leave any country, including his own, and to return to his
country.
International Covenant
on Civil and Political Rights 1966
Article 12 (2): Everyone shall be free to leave any country, including his own.
Article 12 (3): The above
mentioned rights shall not be subject to any restrictions except those which
are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others,
and are consistent with the other rights recognized in the present Covenant.
Article 12 (4): No one shall
be arbitrarily deprived of the right to enter his own country.
_____________
ANNEXURE – V
International Covenant
on Civil and Political Rights 1966
Article 17 (1): No one shall
be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the
protection of the law against such interference or attacks.
______________
ANNEXURE – VI
The Constitution of
the Republic of South Africa 1996
Article
29:
(1) Everyone has a right -
(a)
to a basic education,
including adult basic education; and
(b)
to further education,
which the State, through reasonable measures, must make progressively available
and accessible.
(2) Everyone
has the right to receive education in the official language or languages of
their choice in public educational institutions where that education is
reasonably practicable. In order to ensure the effective access to, and
implementation of, this right, the State must consider all reasonable
educational alternatives, including single medium institutions, taking into
account -
(a)
equity;
(b)
practicability; and
(c)
the need to redress the
results of past socially discriminatory laws and practices.
ANNEXURE – VII
The Constitution of
the Republic of South Africa 1996
Article
24: Everyone has the right –
(a)
to an environment that
is not harmful to their health or well being; and
(b)
to have the environment
protected, for the benefit of present and future generation, through reasonable
legislative and other measures that –
(i)
prevent pollution and
ecological degradation;
(ii)
promote conservation;
and
(iii)
secure ecologically
sustainable development and use of national resources while promoting
justifiable economic and social development.
____________
ANNEXURE – VIII
The Constitution of
the Republic of South Africa 1996
Article
34: Access to Courts and Tribunals
and Speedy Justice: –
(1) Everyone
has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or tribunal or forum or
where appropriate, another independent and impartial court, tribunal or forum.
(2)
The right to access to
courts shall be deemed to include right to reasonably speedy and effective
justice in all matters before the courts, tribunals or other forum and the
States shall take all reasonable steps to achieve the above object.
___________
ANNEXURE – IX
The Constitution of
India
Article 39: Certain
principles of policy to be followed by the State – The State shall, in particular, direct its policy
towards securing –
(b) that
the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;
(c)
that the operation of
the economic system does not result in the concentration of wealth and means of
production to the common detriment;
______________
ANNEXURE – X
Second Optional Protocol to the
International Covenant on Civil and Political Rights 1966 - [Relevant extracts]
Article
(1) :
(1) No one within the jurisdiction of a
State Party to the present Protocol shall be executed.
(2) Each State Party shall take all
necessary measures to abolish the death penalty within its jurisdiction.
Article (2):
(1) No
reservation is admissible to the present Protocol except for a
reservation made at the time of ratification or accession that provides for the
application of the death penalty in times of war pursuant to a conviction for a
most serious crime of a military nature committed during war time.
_______________
ANNEXURE – XI
International Covenant
on Civil and Political Rights 1966
Article 4
1. In time of public emergency which
threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under international
law and do not involve discrimination solely on the ground of race, colour,
sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8
(paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant
availing itself of the right of derogation shall immediately inform the other
States Parties to the present Covenant, through the intermediary of the
Secretary-General of the United Nations, of the provisions from which it has
derogated and of the reasons by which it was actuated. A further communication
shall be made, through the same intermediary, on the date on which it
terminates such derogation.
Note:
Article 6 is with regard to Right to
life. Article 7 is with reference to torture, or cruel, inhuman or degrading
punishment. Article 8 deals with prohibition against slavery. Article 11
proscribes imprisonment merely on the ground of inability to fulfil a
contractual obligation. Article 15 prohibits retrospective operation of
criminal laws. Article 16 provides that everyone shall have the right to
recognition everywhere as a person before the law. Article 18 guarantees the
right to freedom of thought, conscience and religion.