The Americans did the same after succeeding in their struggle for independence against British domination. While referring to the Bill of Rights in the Indian Constitution, Ivor Jennings pointed to these features, saying: “The Indian reaction (in enacting the Bill of Rights) like the American reaction, is in a large measure a product of the British rule”.
In the Constituent Assembly debates in India, a sub-committee on fundamental rights deliberated on the contents of these rights and the distinguished members of that august body knew that fundamental rights were the basic human rights, without which a free democracy was impossible. A number of the members of the assembly expressed their opinions as these rights being permanent and inalienable.
Dr BR Ambedkar talked of these rights as principles that have become “the silent, inarticulate premise of our outlook”.
Dr S Radhakrishnan, participating in the debates over these rights, said, “The declaration, which we make today, is of the nature of a pledge to our own people and a pact with the civilised world”.
The reasons why fundamental rights are in the nature of natural rights and why these rights cannot be changed by law, and all laws made by the state have to respect these rights, have been explained by the American Supreme Court in the case of Board of Education v. Barnette:
…the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities… and to establish them as legal principles to be applied by the court. One’s rights to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to the vote; they depend on the outcome of no elections.
On fundamental rights there are some misconceptions, of which the most widespread is that these rights are granted by the state.
In fact, fundamental rights are nothing but natural rights. These are based on the primary instincts of human beings, as shaped by their inherent perception of what is right and wrong. These rights are universal in all ages and inhere in every human being. The first corollary of this theory is that these rights, being inherent in human beings, existed even before the evolution of the state.
However, with the growth of the state by way of social control, the ambit of these inherent rights is limited by the collective interests of the society or state in which a person lives. Therefore, any civilised state will have to recognise these rights, not in an unbridled form, but regulated in the larger and collective interests of the state.
As it is often said, I have a right to swing my arm, but I must not hurt someone’s nose while doing so. It is on these postulates that we now have six basic rights which are in the nature of natural human rights and are grouped as fundamental rights in Part III under Article 19(1)(a), (b), (c), (d), (e) and (g), but they are all subject to reasonable restrictions imposed on them by laws on certain grounds enumerated in articles 19(2), (3), (4), (5) and (6).
Therefore, these fundamental rights are not granted by the state or the legislature, but are natural rights of human beings and have been recognised by the state as fundamental but not absolute, and the power of the legislature is subject to these rights. Most of these fundamental rights under Part III of our Constitution are natural law rights.
The second question which has to be clarified about the nature of fundamental rights is whether these rights are antecedent to the formation of the state as inalienable rights of human beings. They are the irreducible, minimum conditions for the free existence of man. These rights stand above the law of the land and, being universal in nature, are common to civilised society everywhere in the world. Thus, they are known as higher laws.
About the concept of these natural rights which are enumerated as fundamental rights, Alexander Hamilton had said long ago, in 1775: “The sacred rights of mankind are not to be rummaged for, among old parchments or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”
John Adams, the second president of the United States, articulated the principles behind these rights succinctly:
You have rights antecedent to all earthly government – rights that cannot be repealed or restrained by human laws – rights derived from the great Legislature of the Universe... British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts coequal with prerogative and coeval with government.
There is thus a distinction between natural rights and civil rights. Civil rights are those rights which are available to human beings in view of his/her being a member of a civil society. But every “civil right”, as rightly pointed out by Thomas Paine, “has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent”.
Civil rights being man-made are thus distinct from natural rights.
This dichotomy has been tersely put in Jowitt’s Dictionary of English Law by defining natural rights as “rules derived from god, reason or nature, as distinct from man-made law”.
William Blackstone explained the distinction and correlation between natural law and civil law or man-made law with great clarity.
This law of nature, being coeval with mankind, and dictated by god himself, is of course superior in obligation to any other. It is binding over all the globe in all countries and all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.
Natural laws over the centuries have made an invaluable contribution to the development of positive law in many countries. The origin and development of equity in England owed much to natural law. It is this concept of natural law which influenced the drafting of the Constitution of the United States and of various states. It is the starting point of modern international law and international conventions, covenants and declarations.
This is the concept of constitutionalism with limited government under a written Constitution. It is clear from what is discussed above that a written Constitution has its philosophical roots in the idea of natural law and is based on the hypothesis of a “higher law”.
This concept of a higher law became very pronounced with the adoption, in 1787, of the American Constitution, which is possibly the first written Constitution of a confederation in the true sense of the term. After that the democratic and the civilised world understood that a written Constitution has to always be in tune with democratic principles, as it incorporates in an organic law the fruits of natural law, which are the inalienable rights of human beings. These natural laws are to act as limitations upon the organs of the state and cannot be left at the mercy of the majority in a Parliament.
In our country, after full deliberations and debates in the Constituent Assembly, the written Constitution was adopted with a provision for judicial review and limited government. It will be an antithesis of constitutionalism in India if, ignoring these basic features, the concept of parliamentary sovereignty is asserted. This has been laid down by the Supreme Court in the case of Golaknath to the following effect: ‘No authority under the Constitution is supreme: the Constitution is supreme and all the authorities function under the supreme law of the land.’
Excerpted with permission from Landmark Judgments That Changed India by Justice Asok G. Ganguly, Rupa Books.
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