Since the inauguration of the Constitution, many significant legal battles have been fought in the area of Fundamental Rights and, thus, a mass of interesting case-law has accumulated in this area.
The effect of this has been that ever since the Constitution came into existence, we are witnessing the continuous expansion of the Fundamental Rights. The reach and ambit of the Fundamental Rights has been expanded beyond limits, especially under Article 21, to include almost every facet of life. The range and coverage of the Fundamental Rights is enlarging as a result of judicial interpretation of the Constitution in tune with the needs of a developing socio-economic society.
However, it is to be noted here, that such purposive and expansive reading of fundamental rights has led to emergence of an issue i.e., Issue of conflict of Fundamental Rights/ Issue of Constitutional Dilemma/ Issue of Constitutional Silence.
In a recent case of P. Gopalkrishnan v. State of Kerala, the Supreme Court of India was confronted with the issue of Constitutional dilemma of resolving the Intra-conflict of fundamental rights flowing from Article 21, that is, right to a fair trial of the accused and right of privacy of the victim.
Before moving on to the question of how to resolve these conflicts, the author believes that the first step is to understand what they are. Without defining the nature of the conflict, it will not be possible to find a clear path on how to solve it.
This issue arises when the fundamental rights enshrined in our Constitution are at loggerheads with each other. Basically, Conflict of fundamental rights means the existence of one right is pushing the other one out of the picture. Whichever way you look at it, you are going to lose something fundamental. Keeping both fundamental rights intact is simply impossible. The presence of one right is causing the other right to partially or completely fade away.
In recent past years, the Supreme Court of India has come across various instances where it was asked to adjudicate upon the issue of conflict of Fundamental Rights. Since this issue has been dealt by the Supreme Court in various cases, it becomes pertinent to take note of the approach taken by the Supreme Court in resolving the conflict of Fundamental Rights. But before we do that, it also becomes equally important to understand the issue of conflict of fundamental rights through some case laws.
Few of the important cases where this issue of constitutional dilemma was confronted by the Supreme Court are as follows: -
Kaushal Kishore V State of U.P- In this case, right to freedom of speech under Article 19(1)(a) and the right to reputation under Article 21 were at loggerheads. In the same case, the conflict of right to freedom of speech [Article 19(1)(a)] with Right to fair trial (Article 21) was also, being adjudicated upon in the initial proceedings.
Indian Young Lawyers Association & Ors vs. The State of Kerala & Ors –The conflict, in this case, related to Freedom to manage religious affairs of religious denominations [Article 26] vs. Dignity and Liberty of women [Article 15 & 21].
Few other fundamental rights which came at crossroads are: - I) Right to free speech vs. Right to Privacy 2) Right to Information vs. Right to Privacy 3) Right to Press vs. Right to Privacy.
Before any assumptions are made, it is to be pointed out that there is not only the issue of inter-conflict of fundamental rights that the Supreme Court adjudicate upon, but there are instances where the issue of intra-conflict of fundamental rights was being observed by the Court. For instance, in a recent case of Asha Ranjan v. State of Bihar, the Supreme Court of India was stuck with one such conflict where the petitioner demanded the shifting of the accused prisoner from the Siwan Jail in Bihar to Tihar Jail alleging that a fair trial under article 21 would not be possible given the utmost terror and fear which prevailed due to the influence which the prisoner wielded. On the contrary, the accused prisoner alleged that his right to fair trial under article 21 would stand vitiated if he is transferred to Tihar Jail away from his family, visitors and relatives. In the present case too (P. Gopalkrishnan v. State of Kerala), there were two fundamental rights arising out of the same Article i.e., Article 21 of the constitution which came at crossroads. It was a case of intra-conflict of fundamental rights flowing from Article 21, that is, right to a fair trial of the accused and right to privacy of the victim. Another case of intra-conflict of fundamental rights is known by the name of, “Mr. ‘X’ vs Hospital ‘Z’”. In this case, the right to lead a healthy life came in conflict with the Right of Privacy.
Having talked about the issue of both inter and intra conflict of fundamental rights, now it becomes important to have a look at the approach taken by the Supreme Court in resolving these conflicts.
Whenever, an issue of conflict of fundamental rights had/has arisen, the Supreme Court had/has resorted to using the “Balancing Test”. Balancing of the fundamental rights aims to ensure that the “paramount collective interest” that is the larger public interest is ensured. A three-step formula has been laid in this regard, where firstly; the facts and the circumstances of both such violations are considered. Secondly, the competing interests are measured and thirdly a balance is sought to creatively interpret the violations by ensuring that none of them is completely made extinct. Resolving the conflict by balancing the interests in each individual case has been also called “ad hoc balancing”, which has two aspects: firstly, the consideration of the very essence/core of the fundamental right, secondly the consideration of the circumstances of the case.
In P Gopalkrishnan case too, the Court undertook the exercise of balancing the fundamental Rights which were in conflict. In this case, the contents of the memory card, which the prosecution intended to rely upon, were not supplied to the appellant, who is the accused in the present case. The appellant contended that if he were not to receive the copy of the memory card, then this would throttle his right to have a fair trial. On the other hand, it was contended by the prosecution that the supply of contents of the memory card would impinge upon esteem, decency, chastity, dignity and reputation of the victim. Following this, a conflict arose. When the matter went to the Supreme Court, the court applied the balancing test and gave its verdict in such way that the interests/rights of both parties were protected and were not made to suffer at the hands of the other.
The author believes that the court, in this case, applied the balancing test in its correct spirit and therefore, did a remarkable adjustment of both the fundamental rights.
Now, keeping aside the importance of this test for a while, the author has few reservations regarding the way the court is consistently using and applying the test. The author is of the opinion that sanctity cannot be attached to this balancing exercise because there are no proper guidelines on how to undertake this exercise. This test is devoid of its structure. Secondly, under the garb of evolving the test, Supreme court is performing the function of law-making authority which is totally in contravention to the text of the Constitution of India. Thirdly, by evolving such a test which indirectly prefers one right over the other, the Supreme Court is creating hierarchies amongst the fundamental rights per se. When balancing is done, though you seem to create a balance but it is upon analysing, you come across the fact that one right is given preference over the other right. This, the author believes, is problematic because if we look at the text of the Constitution of India, it doesn’t provide a hierarchy between fundamental rights. The Supreme Court by undertaking the balancing test, is defying the authority of the Constitution.
Therefore, in consideration of this reservations, the author is of the opinion that it is high time that judges must give life to this balancing test. It is high time that the court develops a proper mechanism to implement this test. If this is not done, then the court would end up creating hierarchies between fundamental rights. This way, the court will do more injustice under the pretext of doing justice.
Similar kind of situation we had already witnessed in relation to the invocation of Article 142 by the Supreme Court. Therefore, the author believes that the Supreme Court must, first, take the exercise of providing guidelines, rules before it undertakes the balancing exercise.
Batch of 2022
NALSAR University of Law, Hyderabad