The Unwritten Constitution of England and Individual Rights

The Constitution of England is unwritten, meaning there is no formal code of Fundamental Rights as found in the Constitution of the United States or other written constitutions. However, this does not imply a lack of recognition for the basic rights of the individual, which are essential for the functioning of democracy. In England, these rights are secured differently.

Foundation of Individual Rights in England:

• The foundation of individual rights in England is essentially negative: an individual is free to act as he wishes, provided he does not violate any ordinary law.

• Judicial decisions play a crucial role in determining and safeguarding these rights in cases brought before the courts.

Role of Judiciary:

• The Judiciary is the guardian of individual rights, similar to other democracies.

• However, a fundamental difference exists: while courts can protect individuals against executive tyranny, they cannot challenge legislative encroachments on rights.

• The English Parliament is theoretically omnipotent, capable of changing any law, meaning there are no fundamental rights binding on the Legislature.

• Consequently, English courts have no power of judicial review over parliamentary legislation and cannot declare any law unconstitutional based on violation of fundamental or natural rights.

Comparison with the United States:

• In contrast, the framers of the American Constitution aimed to protect individual rights against both Executive and Legislative tyranny.

• The American Bill of Rights binds both the Legislature and the Executive, resulting in judicial supremacy.

• Courts in the U.S. can declare Acts of Congress unconstitutional if they contravene the Bill of Rights.

• Fundamental rights in the U.S. are absolute, and the power to impose restrictions is judicially evolved, not legislatively granted.

Adoption of Fundamental Rights in India

Historical Background:

• The Simon Commission and the Joint Parliamentary Committee (responsible for the Government of India Act, 1935) rejected abstract declarations of rights, considering them ineffective without the will and means for enforcement.

• However, nationalist opinion, especially since the Nehru Report, favored a Bill of Rights, informed by experience under British rule where a subservient Legislature could compromise individual liberty.

Objectives:

• The makers of the Indian Constitution incorporated Fundamental Rights to safeguard individual liberty and ensure social, economic, and political justice.

• These rights are codified in Part III of the Constitution and act as limitations on both the Executive and the Legislature.

The Indian Model: A Compromise

• While modeled on the American Constitution, India achieves a balance between Parliamentary sovereignty and judicial supremacy.

• The Parliament of India is not sovereign in the English sense; it is created and limited by the Constitution.

• Any law contravening Fundamental Rights or other constitutional provisions can be declared unconstitutional by the Supreme Court or High Courts.

• Article 13(2) specifically prohibits the State from making laws that take away or abridge Fundamental Rights, rendering any such law void to the extent of contravention.

Limitations Compared to the United States:

1. Legislative Power Over Rights

   • Unlike the U.S., in India, the Legislature can impose reasonable restrictions on Fundamental Rights.

   • The Judiciary retains power only to determine the reasonableness of such restrictions.

2. Right to Property

   • The 44th Amendment Act, 1978 removed the Right to Property from Part III, transferring it to Article 300A, making it a legal right rather than a fundamental right.

   • Consequences include:

     • No recourse under Article 32 if property is taken by executive fiat without lawful authority.

     • The reasonableness of deprivation can no longer be challenged.

     • Compensation requirements under original Article 31(2) were removed; the State decides the amount, now outside judicial scrutiny.

Justification for Amendment:

• The 45th Amendment Bill argued that property rights were being converted into legal rights, placing the Legislature as the guardian of property rights without limitations.

• Historically, the inclusion of Fundamental Rights aimed to protect individuals from legislative tyranny, acknowledging that majorities in the Legislature are not infallible.

Evolution and Limitations of Fundamental Rights in India

Narrowing the Scope of Fundamental Rights:

The scope of Fundamental Rights in India has been gradually narrowed through constitutional amendments, introducing exceptions under Articles 31A, 31B, 31C, and 31D.

(a) Articles 31A and 31C

• These Articles create exceptions to the Fundamental Rights enumerated in Articles 14 and 19.

• Any law enacted under Article 31A (e.g., agrarian reform laws) or Article 31C (laws implementing Directive Principles in Part IV) cannot be invalidated by the courts on the ground of contravening Article 14 (equality before the law) or Article 19 (freedom of expression, assembly, etc.).

(b) Article 31B

• Provides almost complete immunity to laws listed in the Ninth Schedule.

• Such laws are shielded from constitutional invalidity for contravention of Fundamental Rights, but may be challenged post 24 April 1973 if they damage the basic structure of the Constitution (as per Keshavananda Bharati v. State of Kerala).

(c) Right to Property

• Now regarded not only as a constitutional or statutory right but also a human right.

• Human rights include right to health, livelihood, shelter, employment, and property rights are now considered part of this multifaceted dimension.

• Courts globally, including the European Court of Human Rights, have taken a restrictive view on adverse possession, indicating statutes of limitation overriding property rights are increasingly disfavored.

Introduction of Fundamental Duties:

• 42nd Amendment Act, 1976 introduced Fundamental Duties under Article 51A.

• While these duties are not enforceable in courts, a court may refuse to enforce a Fundamental Right if an individual has patently violated any duty in Article 51A.

• This amendment reduces the emphasis on original Fundamental Rights.

Exhaustive Nature of Fundamental Rights:

• Part III of the Constitution exhaustively enumerates Fundamental Rights.

• Unlike the Ninth Amendment of the U.S. Constitution, India does not recognize unenumerated rights.

• Courts cannot impose limitations on Legislative sovereignty based on the “spirit of the Constitution” or natural rights beyond Part III.

Justiciable Rights Outside Part III:

• Certain rights arise from other constitutional provisions, such as:

  • Article 265: “No tax shall be levied or collected except by authority of law.”

  • Article 301: Freedom of trade, commerce, and intercourse across India, subject to Part XIII provisions.

  • Article 300A: Rights related to property, now outside Part III.

• These rights are justiciable, but remedies are available via ordinary suits or Article 226 applications to High Courts, not under Article 32 unless a Fundamental Right is also violated.

Amendability of Fundamental Rights:

• Fundamental Rights are not immune from constitutional amendment.

• Any part of the Constitution, including Part III, can be amended under Article 368.

• Historical evolution:
  A. Pre-Golak Nath View

  • Supreme Court held all parts, including Fundamental Rights, could be amended under Article 368.

  • Some amendments were enacted to supersede judicial interpretations restricting social or economic legislation.
    B. Golak Nath v. State of Punjab

  • Overruled earlier decisions, declaring Fundamental Rights transcendental, making them unamendable, even by Parliament.
    C. 24th Amendment Act, 1971

  • Amended Articles 13 and 368 to restore Parliament’s power to amend Fundamental Rights.

  • Kesavananda Bharati case upheld this, stating Parliament cannot alter the “basic features” of the Constitution.

Doctrine of Basic Structure:

• Fundamental Rights form the basic structure of the Constitution.

• Any law abrogating or abridging such rights violates the basic structure doctrine.

• Article 32, being a Fundamental Right, empowers courts to ensure no violation or abridgment occurs.

Separation of Powers and Equality:

• Separation of powers among Legislature, Executive, and Judiciary is linked to equality under Article 14.

• Breach of judicial powers may amount to negation of equality, allowing legislation to be invalidated for violating the separation of powers principle.