No, they're not. This post attempts to put some argument for the said case that Fundamental rights as per our Constitution, aren't absolute. We then shall proceed to see that it would be harmful to the society at large if that were the case. This post comes at a time when a lot of discussion is occurring on whether one can express whatever he/she desires to and this right to do so must be protected as a fundamental right.
Liberty: A modern day obsession
Liberty(i), in modern times has become an obsession, an end that seems to be the only correct goal for the homo sapiens species. Yet, Liberty is not an isolated, all encompassing end for Societies. Equality and Fraternity too are very much crucial for establishing, sustaining and nurturing Liberty. Pro-Liberty dogmatics tend to press hard for it without realizing that the other two elements are equally, or even much more essential for an efficient, fair and most importantly a happy and prosperous society(ii). Liberty, Equality & Fraternity are the three crucial elements for a truly developed, prosperous & sustainable society.
Ensuring Liberty, is not a naturally managed, non-interventionist task. It needs active participation of varied Social institutions. Also, Liberty has to be ensured, it is not naturally available to people. Institutions have to exist that protect it. For Eg. Private property is one such example which needs Institutions such as courts that enforce it & the State that recognizes it. Today, we are far better-off than our forefathers. We can be at home and relax that the property purchased by us is ours and no one would come and snatch it away. Yes, many a times injustice occurs, but we're secured as we have courts and a Justice mechanism to redress and solve it.
Liberty- Origination
Where does Liberty originate from in Indian context? By Liberty, we here mean 'Freedom'. It is important to appeal to an authority to answer this question:
Dr. B.R. Ambedkar, on 4th November, 1948 said in the constituent assembly: "I am sorry to say that the whole of the criticism about fundamental rights is based upon a misconception. In the first place, the criticism in so far as it seeks to distinguish fundamental rights from non-fundamental rights is not sound. It is incorrect to say that fundamental rights are absolute while non-fundamental rights are not absolute.The real distinction between the two is that non-fundamental rights are created by agreement between parties while fundamental rights are the gift of the law. Because fundamental rights are the gift of the State it does not follow that the State cannot qualify them."
Here, following important observations are to be made:
1. There are two types of rights that need to be focused on: a). Fundamental and b). non-fundamental
2. Non-fundamental rights are those that are created by coming together of parties in an agreement. Eg. Contracts, Private property, Purchase and Sales, etc.
3. Fundamental rights are a gift of the state. Now that's a metaphor. It means that the state(Government) ensures that these rights are available to every citizens. It thus protects these rights and ensures its enforcement when needed.
4. The state cannot qualify them, meaning change them(as per the interpretation by this blog) as the Supreme Court has time and again ruled that the basic structure of Indian Constitution i.e. its Preamble cannot be changed by any Authority under the State(iii). Thus the central spirit of even the Fundamental rights cannot be changed if change/affect the spirit of the Constitution(iv).
Article 19, Clause 2 states: Nothing in sub-clause (a) of clause (1){refers to the freedom of speech and expression} shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.(v)
Hence, reasonable restrictions are to be put, on the freedom of speech and expression. This makes it clear that any expression that affects any of the above mentioned subjects, namely the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence; shall be prohibited/regulated/restricted.
The rationale behind this restriction:
India, as we know, is a vast, multicultural, multilingual, multiracial, multireligious and a very diversified society. It is very much possible that expression and speech of a particular entity may affect the other entity in a manner, unacceptable to them. Thus, it becomes essential to prohibit any such activity.
Having said that, it also becomes essential to point out at the other side of the issue under discussion. It is very much possible and evident too that in the name of such entities, especially religion, caste, etc., unnecessary barriers to the freedom of expression and speech shall rise. It may take the form of bullying by fundamentalist groups, or pressure from some organizations claiming to represent a particular section of society, etc. These matters, though do occur, can be dealt with more amount of clarity in the law about what shall affect the above said factors due to which reasonable restrictions are required. Lack of clarity on which entities, to what extent must be allowed to exert restrictions based on the said factors(vi) is an area requiring immediate intellectual discussion among the Lawyers.
If Fundamental rights were absolute:
People in such a society and Polity would have to face serious consequences. It is well-known what happens when two or more communities do not respect each other. Communal riots aren't alien to India, are they? Due to reasonable restrictions, we as citizens are able to maintain harmony and peace. Indeed, disruptions occur, but are managed due to availability of such restrictions. Exempli Gratia- We don't go out and start abusing some community, religion or any entity especially in public, only because we feel that expression and speech is our freedom, do we? We apply restrictions on our actions and behaviour. Indeed, one may argue that these are Social norms and manners that we learn, but Law has a crucial role in shaping and more so strengthening our norms and behaviour.
An 'absolute freedom' society would mean, expressions that, either may not have been made in a relative freedom(vii) society as currently in India or would have been prohibited/restricted/redressed under a relative freedom society. In such a situation, harmony would have prevailed. Since, in an absolute freedom society one can freely express whatever he/she desires to, non-state social entities(religious groups, communities, etc.) would exert control over the social behaviour(viii) of individuals. Its very well possible that there would be non-state regulating devices, wherein individuals may not be given sufficient rights and representation as is today under constitutional institutions. More on this topic in later posts.
Conclusion:
Freedom/Liberty is not an absolute concept. It is provided by the State, which derives its power from the people, thus ensuring certain fundamental rights to its citizens. These rights, as explained by Dr. Ambedkar, aren't absolute and possess reasonable restrictions. These restrictions, however offending, are important to maintain peace and harmony. The assumption that people shall respect each other even if Freedom were absolute is ill-founded. Restrictions on freedoms(which are minimal) help to tune individual behaviour in tandem with social harmony and tolerance. This means, in different nations, these restrictions vary. In a more tolerant or a largely homogenous society(Eg. nations where diversity in terms of religion, caste, etc. is less), restrictions would be less while more in a largely heterogenous society. Lastly, such restrictions have their flip side too. Unnecessary pressure may be exerted by various entities that may reduce Freedom of expression and speech to a large extent only to a paper-promise. This issue thus needs further clarity as per the law on the entities and sentiments that must be protected and which shall be considered as valid for reasonable restrictions.
Reference and Notes:
(i)- The term Liberty has different connotations as explained here: http://en.wikipedia.org/wiki/Liberty, the above article refers it as Freedom of expression as stated under article 19 of Indian constitution.
(ii)- By prosperity I mean both Quantitative and Qualitative wealth.
(iii)- Authority here means: - As defined under Article 12 of Indian constitution.
(iv)- Spirit of the constitution here is referred to the Preamble
(v)- As given in our constitution; for a link see here:
(vi)- The said factors refer to: the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, as given under Article 19, clause 2.
(vii)- Relative freedom society here means a society wherein Freedoms aren't absolute and have necessary restrictions. Indeed, these restrictions are minimal as evident in our constitution.
(viii)- Social behaviour here is referred to behaviour of individuals during social interactions/in Public.
