Saturday, May 23, 2009

Shri T. L. Venkatarama Aiyar, ch. 5 “Fundamental Rights—The Seven Freedoms and Religious Establishment”

Shri T. L. Venkatarama Aiyar, ch. 5 “Fundamental Rights—The Seven Freedoms and Religious Establishment” in The Evolution of the Indian Constitution, 87-108. Bombay: University of Bombay, 1970.

SUMMARY: Essay looks at “the evolution of the Fundamental Rights in the Constitution of India, and to make a comparative study of the law of them in America and India” (87). He describe how rights are approached in the British system (88), in America’s (88-89), the forming of rights in making India’s Constitution (90-91), and the rights created for it (91-92). He then compares India’s rights to the US’ (93-95), how the US has defined “due process” (95-96), the US’ understanding of “police powers” (97-98), and then Aiyar summarizes the effects of the US’ constitution (98). Then goes on to explain the differences between India’s and the US’ constitution: India does have “due process” (99), but in the end both their substances are the same in relation to “due process” (99-100). He says the second clause of the US’ first Amendment is in India’s constitution (100-101), but not the first clause (101-103), and goes on to list India’s provisions for religion (103-104). Gives examples of freedom of religion in the US (104) and India. Presents the Indian Supreme Court’s definition of religion (105), and how the rights of religion are limited because they cannot conflict with other laws (105-106), those these limit themselves have been contended as being discriminatory (106-107), and Article 19 (1) (f) was contended as well. Aiyar ends by summarizing the 3 main points he’s made concerning India’s constitution (107-108).

87-essay looks at “the evolution of the Fundamental Rights in the Constitution of India, and to make a comparative study of the law of them in America and India.”, in the Constitution Fundamental Rights are “rights which are…inviolable and unalterable except by a process of amendment as provided therein. It is the incorporation of these rights in Part III, that constitutes the most notable feature of our Constitution.”

88-in the British system, the “Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty…in the constitution of this country, there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved” [direct quote from British Supreme court case Liverside v Anderson, 1941]

-“In America…It is not the Legislature that is supreme but the Constitution, and the three organs derive their authority from it and are subordinate to it…Now what the Constitution has done is firstly, to divide the field of legislation between the Congress and the States,…and secondly, to impose both on the Congress and on the States, certain limitations in the exercise of their legislative power even in their fields. It is this that we are now concerned with. It is enacted in Article I of their First (89) Amendment that the ‘Congress shall …[he writes out the first Amendment]’”, then he writes out Article IV (against search and seizure), Article V (against double jeopardy and self incrimination, upholds due process and compensation), Article XIV (applies due process to the states, plus equal protection for all people); add that none of these were in the original Constitution of 1787, adding articles I, IV, and V in 1791 and XIV in 1868; “The policy behind these provisions is clearly to place the exercise of rights specified therein above party politics, and to secure the rights of the minorities against ‘a despotism of the majority.’ In W Virginia State Board v Barnett know as the flag-saluting case, striking down a law requiring students in a school compulsorily to salute the national flag, as repugnant to the 14th Amendment…”

90-The Indian Constitution has “preferred” the American model; “The question of incorporating Fundamental Rights in a Statute had been under consideration in this country for a long time. In the report of the Nehru Committee which was appointed in the All-Parties Conference in 1928, it is stated: ‘Certain safeguards and guarantees are necessary to create and establish a sense of security among those who looked upon each other with distrust and suspicion. We could not better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the constitution.’ A proposal was put forward before the Simon Commission for including Fundamental Rights in the proposed Constitution but that was rejected because the Commission was of the opinion that ‘abstract declarations are useless unless there exist the will and the means to make them effective.’ (91) The Joint Parliamentary Committee which endorsed this opinion observed that the effects of enacting Fundamental Rights would ‘be to impose an embarrassing restriction on the powers of the legislature and to create a grave risk that a large number of laws may be declared invalid by the Courts because inconsistent with one or other of the rights so declared.’”

91-however Section 299 (I) was the single exception to this, it “provided that no person shall be deprived of his property save by an authority of law, and this has been incorporated in Article 31 of the Constitution. Then when the question of enacting Fundamental Rights came up before the Constituent Assembly, a decision to incorporate them in the Constitution was unanimously adopted and they have been set out in Part III.”

-“…the provisions in Part III…included practically all the rights guaranteed in the American Constitution, and some more necessitated by the conditions in India, such as the right of access to public places under Article 15 (2) or the abolition of untouchability under Article 17. Some rights are available only to citizens, as for example the seven freedoms under Article 19, while others such as deprivation of life or liberty under Article 21 can be claimed by all persons within the State. Then again, while some Articles are directed against the State, and impose obligations on it, as for example, Article 14 that ‘the State whall not deny to any person equality before the law or the equal protection of the laws within the territory (92) of India’ [direct quote from Article 14], others, like Article 19 (I) simply declare the rights of persons. But this difference does not make any difference in the quality or extent of the rights under the two categories of Articles as [sic] they all of them embody Fundamental Rights, and the law is well0suited both in America and in India that Fundamental Rights are enforceable only against the State and not against private individuals apart from State action.”, e.g. this is articulated in Shamdasani v Central Bank of India (1952)

93-Article 19 of India’s Constitution provides similar rights to US’ (free speech, assembly, association/unions, move freely and resettle, acquire property, and to practice any profession/occupation), but (94) the Article 19 also states (in clauses 2-6) that none of these rights can effect existing laws or can prevent the state from making a future law limiting that right; (95) “While the American Constitution imposes no limitations on the exercise of these rights”; “Ex facie, therefore it might appear that the scope of these rights as guaranteed by the Indian Constitution is much more limited. But…in the actual working of the provisions, the results are not dissimilar.”

95- important for this is the expression “due process of law”; “ ‘Few phrases in the law’, observed the Court in Twinning v New Jersey, ‘are so elusive of exact apprehension as this. The Court has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise.’ [direct quote] The expression ‘due process of law’ has been traced to the words ‘per legem terre’, ‘law of the land’, occurring in the Magna Carta. The theory was at one time held by lawyers in England that the ‘law of the land’ (96) would prevail even as against a law enacted by Parliament and so Lord Coke observed in Dr. Bonham’s case ‘the Common Law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common rights and reasons.’ This theory has long ago been exploded in England and the supremacy of Parliament established, but it would appear to have found a new home in America. Law was held to mean something more than ‘law’ in the Austinian sense. ‘It is not any act legislative in form that is law; law is something more than mere will exerted as an act of power.’ [direct quote from Twinning v NJ] Acting on this introduction of the phrase ‘due process of law’, the Supreme Court struck down all statues and all executive and judicial orders, if they were satisfied that there had been observance of ‘due process of law’. At first the application of this clause was limited to errors of procedure as for example when rules of natural justice were violated. But later on it came to be held that even substantive laws such as labour laws and measures of social legislation, could be struck down if in the opinion of the Court they interfered with the rights of individuals. More recently, however, the trend has been to leave the decision on the substantive law and policy on social and economic questions to the decision of the legislature, and to interfere only when there is procedural violation of rules of natural justice.”

97-the US Supreme Court also recognized “the power of the Legislature to enact laws in exercise of what were called ‘police powers’” which is “the governmental power of self-protection and permits reasonable restrictions of rights and property in particulars essential to the preservation of the community from injury” [direct quote from Penhandle Pipeline v State Highway Commission]; The police powers have been used to protect health, morals and safety and recently also “to protect the well being and tranquility of a community” [direct quote from Kovacez v Cooper]; when (98) there is violation by police powers of “due process” “the Court can and must interfere. But what amounts to violation of this clause is a question on which opinion has varied from time to time and from Judge to Judge.”; the act must show “direct and substantial relation to its object” and given recent trends that say due process only refers to procedural violations, if the act is not directly related to the object it is more likely to be struck down

98-Summarizing the 14th Amendment “in the light of the ‘due process’ clause and the ‘police powers’ of the State”: “(1) The power of review under the ‘Due Process’ clause is of the widest amplitude, and extends to violation of not mercy law in the Austinian sense but also of all rules of justice, equity and good conscience. (2) The State has the power to enact regulations imposing restrictions on the exercise of Fundamental Rights, in the interests of the general public. (3) The Court has the power to interfere with the regulations made in the exercise of ‘public power,’ but it will in general accept the decision of the legislative, unless the regulation has no direct and substantial relation to the object thereof or there has been a procedural defect amounting to a denial of natural justice.”

99-India’s law, “as enacted in Article 19,” differs from US’ in 2 ways: 1) “It has not adopted the ‘due process’ clause. It must be mention that the draft contained such a clause but as the result of a full dressed debate, it was dropped by the Constituent Assembly. It is this decision that is embodied in Article 12, and under that provision ‘Law’ is to mean only positive law and not rules or natural justice…That has also been held by the Supreme Court in Gopalan v The State of Madras [1950].”

-2) “As regards ‘police powers,’ while the American law leaves it to the Legislature to decide what is for the benefit of the public and to the Court to pronounce on its validity, Article 19 (2) to (6) define the limits within which and the conditions under which the Legislature could enact a law in exercise of the ‘police powers’. The law will be valid only, if it satisfies the conditions laid down in the article. It is for the Court to decide whether it does so. Thus, it will be seen that in substance the law is the same in America and in India, only the processes by which the result is obtained differ in the two countries. The freedoms mentioned in Article 19 are guaranteed both in America and in India. And in neither country are they absolute. They are subject to reasonable restrictions made in the interests of the public. And the Court is the final arbiter whether the restrictions are reasonable or not. The true positions is clearly brought out by Mookherjee, J., as he then was.” In Gopalan v Madras: “There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that (100) would lead to anarchy and disorder. The possession and enjoyment of all rights, as was observed by the Supreme Court of America in Jacobson v Massachusetts, are subject to such reasonable conditions, as may be deemed by the governing authority of the country…In some cases, restrictions have to be placed upon the free exercise of individual rights to safeguard the interests of the society…What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control.” [direct quote]

100-For the US, “The Fourteenth Amendment consists of two clauses [concerning religion]. The first is directed against legislation respecting ‘an establishment of religion’, and the second against a law prohibiting the free exercise of religion. The former is not concerned with the religious beliefs and practices of individuals, while the latter is not concerned with ‘establishment of religion’ by States.”, While the Indian constitution’s Article 25 (1) says (101) “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” [direct quote], “This corresponds to the second clause in the Fourteenth Amendment.”; and Article 26 “extends to religious groups the freedom of religion which Article 25 confers on individuals. This is also in accordance with the law as laid down by the Supreme Court of United States [Watson v James and US v Ballard]. Thus, so far as the second clause of the First Amendment concerned the law in India is the same as that in America.” [Article 26 gives “religious denominations right (with exception for public order) to have own institutions, manage selves, own property and administer that property]

101-“When we turn to the first clause of the First Amendment, the position is somewhat different. There is nothing corresponding to it in the Indian Constitution.”; “The theory that dominated political thought in Europe at that time [of the creation of the First Amendment] was that religion was an affair of the State. So every (102) State had its established Church and allegiance to it was equated with loyalty to the sovereign. With the growth of religious freedom, divisions based on community of religion began to develop in all countries. This was the condition in America at the time of its Independence. As the institution of a State-established Church would tend to impair the unity of the nation, the Constitution Makers decided to dissociate the State from the Church, and the first clause was enacted for that purpose. But, as now interpreted, it has been given a wide sweep and held to prohibit the association of the State, however remotely, with any religious activities. In McCollum v Board of Education, religious teachers belonging to different denominations were permitted to give religious instructions to the students in a public school, during ‘release hours’.” at a public school building and the Supreme Court said this conflicted with separation of church and state; “In Zorab v Calusson, the facts were the same except that religious instruction was given to students during the ‘release hours’, outside the school. It was held that this did not offend the First Amendment. It must be mentioned that in (103) there were dissidents. Some Judges took the view that having regard to its historical setting and to its language, the First Amendment only prohibited the establishment of Church by the State and that it did not require the State to be hostile to religion, while others held that the clause intended to set up an impregnable wall of separation between the Church and the State.”; “There being no question of an established Church in India, there was no need for such a clause in the Constitution.”

103-“But there are specific provisions dealing with certain problems. Article 28 deals with religious instructions in educational institutions. Article 28 (1) enacts that ‘no religious instruction shall be provided in any educational institution wholly maintained out of State funds.’ This is in line with the American decision. But if the institution is state-aided, and not state maintained, Article 28 (3) provides that no person attending it should be required to take part in religious instruction. Article 28 (2) further provides that Article 28 (1) has no application where the State takes over and administers an educational institution which has been ‘established under any endowment or trust which requires that religious instruction shall be imparted in such institution.’ Then there is Article 30. While Article 30 (1) recognizes the right of religious minorities to establish and maintain their own educational institutions, Article 30 (2) enjoins that ‘the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority based on religion.’ There is one other provision that must be referred to in this connection Article 27 enacts that ‘no person shall e compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious (104) denomination. ‘This Article in effect, prohibits discrimination in favour of any particular religion or religious establishment.[‘] But it does not bar the State from conferring benefits on all religions or religious denominations without distinction. Thus under the Indian Constitution, there is not that rigid dissociation of the state from religion, which we find in America.”

104-“it has been held in America…[that the] First Amendment…includes on the one hand freedom from compulsion to do what is prohibited by the articles of one’s religious faith and on the other freedom to preach the tenets of one’s own creed. The question has often come up for consideration in connection with the activities of a religious sect known as Jehovah’s witnesses. In the Board of Education v Barnette, the authorities of a school in West Virginia made it compulsory for every student to salute the national flag as part of the daily exercise. Some students belonging to the sect of Jehovah’s witnesses, who refused to do so on the ground that it was against their religious tenets were expelled. The Supreme Court of United States held that the order of expulsion was unconstitutional, as the compulsion to salute the flag was an interference with the free exercise of religion by the students.”, and Jehovah’s witnesses could distribute literature in public places (Lovell v Griffin) and go house to house (Cantwell v Connecticut). “The law would be the same in India under Article 25 (1) and Article 19 (1) (a).”

105-“what is the meaning of the word ‘religion’ in Articles 25 and 26? The Supreme Court has held that it means and includes not only matters of belief but also all rituals and ceremonies which are regarded by the community as essential and integral parts of the practice of religion [in Commissioner of Hindu Religious and Charitable Endowments v State of Bombay 1962].” [also Vankataramana Devaru v State of Mysore 1958, and Durgah Committee v Hussain Ali 1962]

-India’s rights under Article 25 and 26 are not absolute, and are “subject to public order, morality and health”, The US supreme court says, similarly, rights under first Amendemnt don’t include “the right to do what is immoral or criminal though that may be sanctioned by religion” and so this is why a conviction of a polygamist Mormon was upheld in Reynolds v United States; and in India this would be the same under Article 25 (2) (a) , but (106) “It has been held by the [Indian] Supreme Court that the true scope of Article 25 (2) (b) is only to lift the ban on entry into the Temple of certain sections of society, like the Harijans, but not to do away with the rules of the Temple relating to the entry into Garbhagraha, or the sanctum sanctorum, by members of the public generally.” [Venkataramana Devaru v State of Mysore 1958]; plus “the right under Article 25 is subject ‘to the other provisions of this Part,’ that is, it is subject to the Fundamental Rights declared in Part III.”

106-“on the basis of this provision, contentions have been put forward in several cases that certain laws with respect to religious endowments are bad as being in contravention of Fundamental Rights. Thus it has been contended that a law which is limited in its operation to Hindu Religious Endowments is discriminatory and hit by Article 14. This contention has been rejected on the ground that Article 14 does not forbid classification and that a law relating only to Hindu Religious Endowments is based on a valid classification [Moti Das v S. P. Sahi 1959; State of Bihar v Bhahpriyananda 1959; Narayana v State of Mdras 1954]. Indeed it has been held that even a law dealing with a single temple will be constitutional, if it occupies a unique position, and can be considered to be a class by itself, as for example (107) the Mathdwara Temple in Rajasthan [Tilakaval Sri Govindlalji v State of Rajasthan 1963] or the Jagannathswami Temple in Orissa [Bira Kishore Deb v State of Orissa 1964].”

107-“Questions have also been raised under Article 19 (1) (f) challenging the validity of provisions in a decree in a scheme suit relating to a Mutt, providing the management of its properties. The contention has been that the Mohant of the Mutt has under the law power to manage its properties by virtue of his office, that the right to the office is property and therefore to deprive him of his rights to manage the properties as Mohant is to infringe his right to hold property, under Article 19 (1) (f). It has been held by the Supreme Court in Commissioner of Hindu Religious and Charitable Endowments v Lakshmindra supra that the right to the office of Mohand it itself property and that therefore he is entitled to the protection of Article 19 (1) (f) but that if the impugned provisions were merely calculated to ensure efficient management of the properties and did not interfere with the work of the Mohant as the spiritual head of the institution, they would fall within the saving of Article 19 (5). It has since been uniformly laid down that provisions in a law or in a scheme which have reference solely to the secular duties of a Mohant or Shebait are not hit either by Article 19 (1) (f) or Article 25 or Article 26.”

-summarizes: “(1) The Indian Constitution recognises as does the First Amendment is America the right of individuals and of religious denominations to freely profess, practise and propagate religion subject only to interference by the State on the (108) grounds of public order, morality or health; and religion includes not merely articles of faith and belief, but also essential rites and ceremonies. (2) The Indian Constitution does not recognise any established Church but there is not the same wall of separation between Religion and State in India, as in America. (3) The Indian Constitution recognises the right of heads of Mutts and other religious institutions to manage their own affairs in matters of religion without interference by the State, but they can claim no such immunity as regards secular matters such as management of properties belonging to the institution.”

No comments: