Since the enforcement of our Constitution, we are witnessing a continuous expansion of fundamental rights. Their reach and ambit have been expanded beyond limits, to include almost every facet of life. Significant legal battles have been fought in this field which has resulted in the revolutionary interpretation of the Constitution to tune in with the needs of a developing socio-economic society especially under Article 21. Thus, a majority of thought-provoking cases are present in this particular field of law.
However, it is to be noted here, that such purposive and expansive reading of fundamental rights has led to the 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. the 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, one must first understand what they are. Without defining the nature of the conflict, it will not be possible to find a clear path and its road to resolution.
This issue arises when the fundamental rights enshrined in our Constitution are at loggerheads with each other. 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. Keeping both fundamental rights intact is simply impossible. The presence of one right is causing the other right to partially or completely fade away.
Through various cases, the Supreme Court has adjudicated upon the conflict of fundamental rights. Hence, it is 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 related to the conflict of fundamental rights through some case laws.
A few of the important cases where this issue of the constitutional dilemma was confronted by the Supreme Court are as follows: –
- Kaushal Kishore V State of U. P: In this case, the 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 a 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: –
- Right to free speech vs. Right to Privacy
- Right to Information vs. Right to Privacy
- Right to Press vs. Right to Privacy.
Before any assumptions are made, it is to be pointed out that there exists not only the issue of inter-conflict of fundamental rights that the Supreme Court adjudicates 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 vs. the State of Bihar, the Supreme Court encountered 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 accused wielded. On the contrary, the accused prisoner alleged that his right to a fair trial under Article 21 would stand vitiated if he is transferred to Tihar Jail away from his family, visitors, and relatives. Another case of intra-conflict of fundamental rights is Mr. ‘X’ vs Hospital ‘Z’ in this case, the right to lead a healthy life came in conflict with the Right of Privacy. In the above-mentioned case of P. Gopalkrishnan vs. the State of Kerala as well two fundamental rights were arising out of the same Article i.e., Article 21 which came at crossroads.
Supreme Court’s Approach: Balancing of Interests
Whenever an issue of conflict of fundamental rights has arisen, the Supreme Court has resorted to using the “Balancing Test”. The goal of fundamental rights balancing is to guarantee that the paramount collective interest, or the broader public good, is protected. 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 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 the P Gopalkrishnan case as well, 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 was 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 the esteem, decency, chastity, dignity, and reputation of the victim. Following this, a conflict arose. When the matter went to the Supreme Court, the balancing test was followed and the verdict was provided in such a way that the interests/rights of both parties were protected.
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 that indirectly prefers one right over the other, the Supreme Court is creating hierarchies amongst the fundamental rights per se.
When balancing is done, though it seems that balance is created, however, upon analyzing, you come across the fact that one right has been given preference over the other right. This may be 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, considering these reservations, the author believes that it is high time that Judges must give life to this balancing test. The Courts should develop a proper mechanism for the implementation of this test. If this is not done, then hierarchies between the fundamental rights would be created. This way, more injustice would be caused under the pretext of doing justice.
We had already witnessed a similar kind of situation concerning 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, before it undertakes the balancing exercise.