Govt. circulars - violation of rights

By Rajindar Sachar

THE REJECTION summarily by the Supreme Court, without giving any reasons, of the writ petition challenging the circulars of the Central Government by which prior approval is to be obtained from the Ministry of Home Affairs in regard to international conferences to be organised by Indian NGOs, associations, universities, even with regard to subjects of human rights, and worse, from the Ministry of External Affairs also if the participants are from Bangladesh, Sri Lanka and Pakistan may be considered by the Government's apologists as a shot in its arms. But it has also revived the debate about the effectiveness of the Judiciary in safeguarding the fundamental right of freedom of speech guaranteed to the citizens of the country and has occasioned the caustic comment that while legislatures are one generation behind public opinion, the Judiciary is one generation behind the legislature.

For some time, the alleged judicial activism was being projected as a repudiation of the charge of the courts being conservative. But that was due more to the concern over alleged environmental pollutions, an obsession of the affluent, while the misery of hundreds of thousands of slum-dwellers and oustees of projects such as Narmada has not received similar response.

The Government would be mistaken if it assumes the challenge to such patently illegal circulars has ended. The reason is that the Supreme Court in several decisions has ruled that dismissal of a petition at the preliminary hearing without giving reasons is neither a res judicata nor binding as a precedent under Article 141 of the Constitution, and could be challenged in fresh proceedings before the High Courts or Supreme Court.

The continuance of the Government order flouts the decision of the Supreme Court in its earlier judgment in the Secretary, Cricket Association of Bengal (1995) case affirming that ``under Article 19(1)(a) every citizen has a right to impart and receive information as part of his fundamental right to speech and expression''. And that the Government is under an obligation to ensure conditions under which this right can be meaningfully and effectively enjoyed. And further that ``freedom of speech and expression carries with it the right to gather information, and to exchange thoughts and ideas with others not only in India but also outside''.

An equally forceful mandate was expressed in Article 13 of Universal Declaration of Human Rights, 1948. But the real embarrassment to the Central Government is that the circulars violate Article 19 of the International Covenant on Civil and Political Rights (ICCPR), 1966, and which has been ratified by the Central Government in 1979. Article 19 of the ICCPR reads ``everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers''. A similar right of the citizen is recognised in Article 10 of European Convention on Human Rights. Should India be the only defaulter amongst the democratic nations?

It is well settled that this fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2). And further that the burden is on the state to justify the restrictions. Government circulars undoubtedly have no statutory basis and that is why it is legally infirm as the Kharak Singh case (1963) has categorically held that ``if any regulation constitutes an infringement of any of the freedoms guaranteed to him by the Constitution then the only manner in which this violation of the fundamental right can be defended is by justifying the impugned action taken by reference to a valid law i.e., be it a statute, a statutory rule or a statutory regulation''.

This precondition is essential otherwise it will also violate Article 14, because as said in Satwant case (1967) ``While in the case of enacted law one knows where he stands, in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it. Such a discretion patently violates the doctrine of equality, for the difference in the treatment of persons rests solely on the arbitrary selection of the Executive. The argument that the said discretionary power of the state is a political or a diplomatic one does not make it anytheless an executive power''.

The Government circulars also run foul of the fundamental right of Article 21 of the Constitution, because as said by the Supreme Court in the Reliance Ltd. case (1988), ``Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution''. That right has reached new dimensions and urgency.

The Government cannot claim immunity by merely calling circulars a matter of procedure, as Article 21 mandates a ``procedure established by law'' which means an enacted law or statutory order, and not executive circulars as in the present case. It is well settled that procedure can only be followed if there is a statutory provision. Absent that, the present order is null and void. Also, ``Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish and must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalized only by civilised process''.

Why this suspicion about public bodies? The danger of foreign invitees being in fact saboteurs does injustice to the responsible individuals, NGO, universities. Such an approach shows greater confidence in the ability and patriotism of small officials rather than top academicians and public men.

If the circulars continue, we may have the indignity of the organisers (who include Supreme Court judges) of the International Law Association, who are holding a conference at Delhi to be presided over by the Chief Justice of India, having to obtain prior approval for holding the conference (to be attended by foreign judges, law professors) from the minions of the Ministry, notwithstanding that all foreign visitors have to obtain Indian visas in any case.

Comical if not a tragic paradox that while seeking to improve good relations with our neighbouring countries especially Pakistan by even opening sensitive borders, the circulars should so insult their citizens that if the participants from these countries are attending a meet on even an innocent subject such as international arbitration law, clearance has to be taken from both the Ministry of Home Affairs and the Ministry of External Affairs, which is not needed if the participants were from other countries of Asia-Europe.

It is in that context that one recapitulates with nostalgia the anguished but determined rap given by Chief Justice Patanjali Sastri to the highest of political leaders such as Pandit Nehru, who were visibly upset at some earlier judgments of the Supreme Court striking down legislation because it violated fundamental rights of citizens by firmly stating ``that we think it right to point out what is sometimes overlooked that our Constitution contains express provision for judicial review of legislation, as to its conformity with the Constitution. If then, the Courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the fundamental rights, as to which this Court has been assigned the role of a sentinel on the qui vive - and that while the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute''. Wise and strong words which still continue to act as a beacon light to the legal fraternity.

(The writer is a former Chief Justice of the Delhi High Court.)

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