DISCREPANCIES
If the Indian Constitution is over-generous in the scope afforded to the individual to seek redress for infringement of his Fundamental Rights, the provisions in the Rome Convention may be regarded as too niggardly for imitation in areas outside the European community, in which it may be assumed that the countries concerned will make an honest effort to implement their obligations.
There is, however, much to be said for a system ensuring scrutiny of claims for protection of a Fundamental Right before leave is given to agitate them in a court. And one advantage enjoyed by the parties to the Rome Convention is that the countries of Western Europe will have a uniform application of the rights. One difficulty which has to be faced is that, if you define Fundamental Rights, members of the general public are inclined to expect too much of them, having too much regard for their own liberty and too little for the rights of others and the necessities of the State. They regard the court’s interpretation as whittling away the right. Equality before the law has a fine sound; but India, in this respect generally following American doctrine, holds that it only prevents discrimination between persons or things similarly situated; similarity of treatment is enough; a law may classify persons or things on a basis reasonably connected with its object and discriminate to achieve that object2 Then the general public observes with dismay discrepancies to which a lawyer is habituated. You all know of the unsuccessful prosecution of the publishers of Lady Chatterley's Lover in England and it may interest you to know what befell when die Japanese translator of that book appealed to the Supreme Court of Japan31 Bulletin of the International Commission of Jurists No. 12, pp. 37-99.
’ Bombay v Sahara, A.I.R. 1951, S.C. 318.
* Kyujiyo Koyama ‘A’ case 1713-1953, S.C. of Japan.
from his conviction under the Japanese Penal Code for distributing an obscene book.1 The Japanese court held that anything which tended to excite sexual desire or injure the normal sense of shame is obscene. On behalf of the translator it was contended that the provision in the Japanese Bill of Rights, ‘No censorship shall be maintained,’2 is an absolute prohibition to which no qualification is attached; but the Supreme Court held that, whether a Fundamental Right was expressly qualified or not, it was subject to the general qualification specified in the Constitution that Fundamental Rights must not be abused and must be exercised for the public welfare? Prohibition of censorship does not mean that distribution of obscene books cannot be prohibited. The conviction was upheld. Strangely enough the right of freedom of expression is not specified in the Japanese Constitution.
In an American case, a dope-pedlar was arrested by a preventive officer. He promptly swallowed the dope which was on his person. The preventive officer rushed him to a hospital, had his stomach pumped and got him convicted on the analyst’s report on the contents of his stomach. Relying on the Fundamental Right to freedom from unreasonable searches, he successfully appealed. But when the same problem came before the Indian courts, it was observed that there is no such Fundamental Right in India, so it was pleaded that an accused in such a position was entitled to the benefit of the protection against self-conviction;4 but this was rejected, on the ground that that right could only be pleaded when the accused has been obliged to co-operate in the production of the incriminating evidence?
You may feel that I have over-stressed the difficulties in defining these rights, in setting boundaries to them, in interpreting them and in enforcing them. You may feel that, in action, they do not amount to very much.
But it is not my intention to leave such thoughts in your minds. In many parts of the world today, the history of the period between the two wars seems likely to be repeated. Dictatorship is on the march and it cannot co-exist with Fundamental Rights; its ultimate destination is a slave civilization. The Welfare State, with its new mass-produced benefits, may lull people into an attitude of indifference to the old liberal rights. But it is they, at least as much as the benefits of the Welfare State, which have made it possible for the individual to be the captain of his soul, to fulfil his potentialities and,* Japanese Penal Code, Art. 175. 2 Constitution of Japan, Art. 21.
1 Ibid., Art. 12. ‘ Indian Constitution, Art. 20 (s).
5 In rt Palani Gouden, A.I.R. 1957, Mad. 546. as a by-product, to experience happiness. If we are to content ourselves with social security, state doctoring and free entertainment, individual initiative, the mainspring of human progress, will be inhibited. Either we study these rights and methods for their enforcement and fight for them, or we shall be condemned to an antcivilization.