The rule of law requires that the law afford adequate protection of fundamental human rights. It is a good start for public authorities to observe the letter of the law, but not enough if the law within a particular country does not protect what are there regarded as the basic entitlements of a human being. - Lord Bingham
The rule of law requires that the law afford adequate protection of fundamental human rights. It is a good start for public authorities to observe the letter of the law, but not enough if the law within a particular country does not protect what are there regarded as the basic entitlements of a human being.
- Lord Bingham
Life, Liberty, Expression & Equality are guaranteed under Part III of our Constitution viz., Arts. 21, 19, 15 & 14 r/w Justice, Liberty, Equality & Fraternity clause to the Preamble.
The Universal Declaration of Human Rights, 1948 (UDHR) guarantees the same under Arts. 1, 2, 3, 7, 18 & 19. The European Convention For The Protection of Human & Fundamental Rights, 1953 (ECHR) guarantees the same under Arts. 2, 5, 9 & 10. The International Convention On Civil & Political Rights, 1966 (ICCPR) guarantees the same under Arts. 6, 9, 10, 18 & 26.
India’s International Obligation
Art. 51(c), says, to foster respect for international law & treaty obligations in the dealings of organised peoples with one another. By virtue of Arts. 246 & 253 r/w VIIth Schedule of the Constitution, international treaties must be incorporated by the G.O.I. (& co-extensively by the legislature) in order to form part of domestic law. However, with regard to human Rights treaties, India’s International commitment may be derived from similar rights enshrined in the Constitution. Law Commission of India in its 183rd Report on “A continuum on the General Clauses Act, 1897” has stated that wherever necessary, the Indian Courts may look into International Convention as an external aid for construction of national legislation.
In Kesavananda Bharti v. St. of Kerala (AIR 1973 SC 1461), relying on Art. 51 of Indian Constitution, Sikri J. observed, “It seems to me that in view of Article 51 of the directive principles this Court must interpret language of the Constitution if not intractable which is after all an intractable law, in the light of the United Nations Charter and the solemn declaration subscribed by India.”
The Supreme Court relied on International Conventions to construct domestic law in Visakha v. St. of Rajasthan AIR 1977 SC 3011, where the court held, ‘Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions to enlarge the meaning and content thereof, to promise the object of the Constitutional guarantee.’
The Court in the above case applied the “Doctrine of Incorporation” under which international law becomes a part of municipal law if they are not at odds.
Art. 141 of the Constitution says that, the Law declared by the Supreme Court shall be binding on all the Courts within the territory of India. However the same is not binding on the Supreme Court, but in this regard “Doctrine of Judicial Discipline” needs to be taken into consideration which says that the judgement delivered by the bench is binding on the subsequent bench of the same strength & the lesser strength.
Art. 144 says, all authorities, civil & judicial, in the territory of India shall act in aid of the Supreme Court.
In R.C. Cooper v. U.O.I. (1970) 1 SCC 248, the Supreme Court observed at para 69 that, by Art. 14 of the Constitution the state is enjoined not to deny to any person equality before the law or the equal protection of laws within the territory of India. The Article forbids class legislation, but not reasonable classification in making laws. The test of permissible classification under an Act lies in two cumulative conditions;
In Maneka Gandhi v. U.O.I. (1978) 1 SCC 248, the Supreme Court at para 6 observed that, the law, must, therefore, now be taken to be well settled that Art. 21 doesn’t exclude Art. 19 & that even if there is a law prescribing procedure for depriving a person of ‘personal liberty’ & there is consequently no infringement of the fundamental right conferred by Art. 21, such law, in so far as it abridges or takes away any fundamental right under Art. 19 would have to meet the challenge of that Article.
Thus there is a simultaneously application of all tests which gives rise to the application of a broader concept of ‘reasonableness.’
In Col. A. S. Iyer & Ors. v. V. Balasubramanyam & Ors AIR 1980 SC 452, the Supreme Court at para 57 observed that, the doctrine of classification is only subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious & sustained attempt to discover some basic for classification may gradually & imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality, the fundamental right to equality before the law & the equal protection of the laws may be replaced by the doctrine of classification.
In Minerva Mills v. U.O.I. AIR 1980 SC 1789, the Supreme Court recognised Arts. 14, 19, 21 as the ‘golden triangle’, the same was reiterated by the Supreme Court in I.R. Coelho v. St. of Tamil Nadu AIR 2007 SC 861.
Interestingly, the Kerala High Court in K. Mohan Das v. St. of Kerala 2007 (3) KHC 743 observed that the, “Society is never still or mute. Customs are habits of actions or patterns of conduct, which may relate to dress or rites. Society always moves away from the letter of the law by evolving new practices that may influence or simply bypass existing practices. Customs are habits of actions or patterns of conduct and may relate to dress code or to etiquette or to rites surrounding important events of life such as performance of marriage, religious practices etc. Committee has also to move forward taking note of the changes in the society. Wearing of churidars by a devotee cannot be said to be objectionable since the same is popular dress worn of the women in the country. Under such circumstances we are not prepared to say that the order dated 26-7-2007 issued by the Guruvayoor Devaswom Committee allowing devotees to enter the temple by wearing churidars in any way affects the customary rights of the temple.”
Thereafter in the Proceedings Of The Executive Officer Sree Padmanabhaswami Temple, Thiruvanthapuram dt. 28.11.2016, whereby women devotees wearing churidars, salwars & kameez & who visits the Sree Padmanabha Swami Temple, will be allowed there without any hindrance hence forth. The directions of the Hon’ble Kerala High Court in judgement dt. 29.9.2016 in WP(C) 29801 of 2016 is accordingly complied herewith.
Is it Arts. 14, 19, & 21 v. Arts. 25 (in part) & 26 of the Constitution ! I don't think, I just don't think ! Litmus test now is the satisfaction of the ‘golden triangle,’ failing to satisfy the test, the law becomes void, be it may legislative or judicial. Whenever there is any legislation, judgment or order which perhaps goes contrary to them, then it does have a chilling effect on the very ethos of the Constitution. The Kerala High Court Order in WP. (C). 38551/2016 (T) directing status quo ante for time being squanders a brilliant opportunity to strike down a futile & irrational law/practices in toto. The Order by the Division Bench is verbose & clearly loses the wood for the trees. The fact remains that ‘saree’ which is allowed exposes more than the churidar, ultra to the ‘reasonableness clause.’ Certainly the order is regressive depriving the women again from their fundamental & natural rights. What a disappointment !
Mohit Sharma is a Lawyer practising in the Trial Courts & the High Court of Himachal Pradesh, Shimla.
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