THE U.N. DECLARATION
The Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations in 1948. The rights there declared, though regarded as basic principles rather than rules of law, are expressly declared to be subject to restrictions to secure due recognition of the rights of others, or in the interests of morality, public order, the general welfare of a democratic society and the principles of the United Nations? The individual is, however, guaranteed effective remedies against violation of his rights? which include the right to public trial before an independent tribunal at which he is presumed innocent? Torture, cruel punishments and conviction under a retroactive law are forbidden? Equality before the law, freedom of conscience and religion, freedom of expression, assembly and association, and the right to property, are guaranteed?
You will observe that, in the Japanese Bill of Rights, the protection given to the right of personal liberty shows no great change but property rights are not so sacrosant.
It is true that the right to compensation for expropriation is unimpaired, but what property may be acquired, enjoyed and dealt with is now subject to control by law. A new concept, the Welfare State, with the right to work, the right to a minimum standard of decent living and the right to be educated according to one’s capacity, has been introduced. In the bourgeois world, these were by-products of the right to acquire and enjoy property.But die U.N. Declaration goes on to claim the right to participate in government, the right to work, the right of a parent to determine a child’s education and the right to free education in the elementary stages. It also demands freedom to choose one’s spouse? The rights in the U.N. Declaration, with the notable exception of freedom to marry, are reproduced almost word for word in the Indonesian Constitution; but the Supreme Court may only declare unconstitutional legislation of the provincial legislatures, and the Federal Legislature may give directions to the provinces on restrictions to the Fundamental Rights.1
INDIA
Turning now to the Indian Constitution (which has been followed, in so far as it deals with basic human liberties, in the Burma Constitution, the Pakistan Constitution of 1956 and the Malayan Constitution) we notice that the older bourgeois rights, to personal liberty, property, equality, expression, association, assembly, movement and freedom to choose one’s avocation, are in one part and the new rights of the welfare state are in a separate chapter.
The former are protected by a guarantee of adequate judicial remedy, while the latter, described as Directive Principles, are not—a device borrowed from the Constitution of Eire. The political philosophy behind the Fundamental Rights is liberal, that behind the Directive Principles is socialistic; and the conflict between the two ideologies soon became evident in India in regard to property rights. It became necessary to amend the right to acquire, hold and dispose of property,1 and the right to follow an avocation,1 which, as originally constituted, could be reasonably restricted in the general public interest so as to render immune from attack legislation nationalising industries. It was necessary, in other words, to bring these Fundamental Rights in line with the Directive Principle that the economic system does not result in the concentration of wealth and means of production to the common detriment? Then the right to compensation for expropriation5— which, as originally constituted and interpreted, gave the expropriated owner the market value, irrespective of the mode of deprivation— was amended so that he only gets what the Legislature says he may have, and only if the title passes to the State or a state-owned corporation. Many of the Indian rights can be reasonably restricted in the interest of the general public; and the courts have held that legislation following a Directive Principle must necessarily be $0 regarded.Moreover, no less than twenty statutes, most of them designed to break up the large agricultural estates into small holdings—a policy which, it might be argued, is not necessarily in the best interests of
* Indonesian Constitution, Arts. 156 and 32(2).
* Indian Constitution, Art. 19(1) (0 and (no statutory basis. For instance, if Government lays down rules in the exercise of its executive power, without reference to a statute, governing admission to an educational institution which offend against the right of equality of opportunity, they cannot be impugned as repugnant to this right.1
The Indian Constitution distinguishes between rights available to all persons, which include the right of personal liberty, the right to compensation for expropriation and the right to practice religion,3 and rights available only to citizens, which include most of the others.
This is an important point which seems to have been overlooked in many constitutions. In an ideal world, there should be no need of this1 Indian Constitution, 9th Schedule. 1 Ibid., Arts. 31 A, 31B.
1 Ibid., Art. 22. * Ramchandra v State, A.I.R., 1961, M.P.247
’ Indian Constitution, Arts. 20, 21, 31, 25.
distinction; but in the world around us today, it seems impracticable for many countries to allow to foreigners the same liberties as they accord to their own nationals.
The Indian Constitution provides for a Proclamation of Emergency by the President in face of a threat of external aggression or internal disturbance. This ipso facto puts into eclipse the rights* of freedom of expression, association and assembly, the right of free movement in India, the right to hold property and the right to follow an avocation.2 A consequential order may be made suspending the remedies for the other rights?
Though the language in which the Indian rights are expressed is often borrowed from earlier declarations, much of it is original and, in dealing with many of the rights (those last mentioned, for instance), an endeavour has been made to turn them into a form appropriate to a rule in an Indian statute, rather than to state them as general principles, leaving it to the courts to determine their scope and the limitations which can be imposed on them.
There is now an enormous body of case law on the subject, resort to which is being had in other countries, even when interpreting rights not in pari materia with the Indian rights. I think that die way in which the Indian judges have dealt with this very difficult new jurisdiction, with very litde precedent to assist—skilfully steering between the Scylla of depriving the rights of effective force and the Charybdis of making them impediments to effective legislation—has converted many an English constitutional lawyer from the view I have mentioned earlier; for the present policy of the United Kingdom Government seems to be to impose Bills of Rights on ex-colonial territories.