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Mains Answer Writing

6-November-2023

1.  Fundamental rights are not gifts bestowed upon by the state rather an individual possesses them independently of the state. In this context discuss the desirability of reasonable restrictions on various fundamental rights.

ANSWER

  • Fundamental Rights are enshrined under Part III of the Indian Constitution. Articles 12-35 elaborate on the Fundamental Rights in the Constitution. The Fundamental Rights are a crucial instrument to usher in political democracy and ensure freedom, liberty, equality, and justice as envisaged in the Preamble of the Constitution.

FUNDAMENTAL RIGHTS ARE NOT BESTOWED BY THE STATE

  • Fundamental Rights are a part of the Basic Structure of the Constitution. They reflect the mind of the Constitution makers to ensure that the State never infringes on the basic human rights of the citizens of India. They are not given by the State to the citizens rather they are provided as a protection against the arbitrary use of the power of the State against the citizens. They exist independently of the State to ensure human dignity and preserve the equal moral worth of all citizens.

DESIRABILITY FOR REASONABLE RESTRICTIONS ON FUNDAMENTAL RIGHTS

  1. To protect the Sovereignty and Integrity of the State: In order to protect the sovereignty and integrity of the State and ensure that no fundamental right endangers national sovereignty and integrity. For e.g., hate speech to divide India into parts should be restricted and not allowed under Article 19.
  2. Harm Principle: No exercise of fundamental rights should lead to harm to a person or group of individuals and hence the state is entitled to put reasonable restrictions on fundamental rights. For e.g., restriction on movement of citizens to scheduled areas can be effectively restricted by the State.
  3. Health and Public Morality: The exercise of fundamental rights must not negatively impact health and public morality. For e.g., restrictions on the movement of prostitutes to civilian settlements, or restrictions on religious traditions which involve an impact on the health of citizens.
  4. Prevention of Negative Rights: Certain fundamental rights cannot be wrongly claimed giving the excuse that a similar wrong application has been claimed by some other individual. For e.g., an individual group cannot claim the wrong reservation stating that some other group has got the same wrongfully.
  5. Equality of Exercise: Every exercise of fundamental rights must be done in such a manner that it is consistent with the similar exercise of rights of other people. For e.g., Freedom of speech and expression cannot be exercised in such a manner that it leads to the marginalization of some other section or group of people.
  6. To Maintain Public Order: Reasonable restrictions can be put on fundamental rights in order to uphold public order and ensure law and order are maintained. For e.g., the right to assemble or form associations cannot be exercised to create a violent mob that can endanger the safety and security of other people.
  7. To Cultivate Respect for Law: Absolute nature of rights may result in people violating laws made by the state for the greater good of the society and nation. For example, freedom of movement cannot be exercised absolutely if it endangers the cultural identity of a tribal group in a particular area or results in the destruction of the environment.
  8. Friendly Relations with the Foreign States: No fundamental right must damage India’s diplomatic relations with other States. In such a person, the fundamental right to speech may be restricted.

WHILE DECIDING THE REASONABLE RESTRICTIONS, THE FOLLOWING POINTS MUST BE TAKEN INTO CONSIDERATION

  1. Test of Proportionality: Every restriction must satisfy the test of proportionality and the restriction must be proportionate to the objective to be achieved by the State.
  2. Requirement: The restriction must be desirable for the objective stated. The Supreme Court in Anuradha Bhasin Case mentioned that complete restriction on the internet is not necessary for the maintenance of peace and harmony in J&K.
  3. Liberal View: The application of the restrictions must be through the most liberal perspective. For e.g., the application of sedition law should be only in cases that incite immediate violence and must not be to gag protests.
  4. The balance between Rights and Constraints: Restrictions must maintain a fine balance between rights and constraints on the application of such rights. No restriction shall be ultra vires to the provisions of Part III itself.
  5. Consistency: The restrictions should be consistent with the principles of equality, non-discrimination, and due process of law.
  6. Well Documented: The restrictions must be well documented, well written, and enshrined under a law passed by the Parliament.

In this manner, the exercise of fundamental rights can be ensured while maintaining a balance between individual rights, societal rights, and the security of the State. Any restriction on fundamental rights must meet the criteria of reasonableness, proportionality, and necessity.

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