Introduction-Jurisprudential approach to interests
According to Roscoe Pound, law is not concerned with abstract concepts like rights and duties. It is rather concerned with the satisfaction of individual or social needs, wants, claims and interests.
Pound defined interests as claims or wants or desires or expectations which men assert about which law must do something if organized societies are to exist.
The law according to Pound must adopt the ideal of least sacrifice of the scheme of interests as a whole. There are ways and means devised by pound for securing the interests through law. First, jurists have to make an inventory of the interests which press for legal recognition; second, they must select and determine the interests which law should recognize; third, they must fix the limits for securing the interests so selected; fourth, they must weigh the means by which law may secure interests when recognized and delimited; finally, in order to these things the jurists must work out principles of valuation of interests.[i]
Pound examined interests from different perspectives. These are divided mainly in three groups:
(a) individual
(b) Public and
(c) Social interests.
The individual interests are personality, domestic relations and interests of substance.
The public interests are the interests of State as a juristic person and the interests of the State as guardian of social interests.
The social interests are the social interests in general security, social interests in the security of social interests like religious, political and economic institutions, social interests in general morals, social interests in the conservation of social resources, social interests in general progress and social interest in individual life.
National interests
The national interests are a part of the public interests. As described by Pound the various public interests are:
(a) Interests of a state as a juristic person: They include (a) the integrity, freedom of action and honor of State’s personality, (b) claims of politically organized society as a cooperation to property acquired and held for corporate purposes.
(b) Interests of state as a guardian of social interests, namely, superintendance and administration of trusts and charitable endowments, conservation, and protection of natural environment, protection of territorial waters and sea-shores, regulation of public employment to make use of things which are open to public use, etc.[ii]
The international law deals with the interests of the nations and the interests of the individuals were not recognized till a very later period.
The interest of a nation lies in its security and progress. It is protected and recognized internationally as well as nationally. At the national level it is recognized as an exception to the individual’s freedom.
Under the Constitution of India, the interests of the individual’s can be curtailed in the greater interests of the nation. The various freedoms of the individual are subject to the national interests.
The various freedoms are subject to the security and integrity of the nation. Exceptions provided to the freedoms enumerated under Article 19(1) protect and promote the interests of the nation.
Similarly, other rights are also subject to the public health and order which in turn means the interests of the nation.
The chapter on fundamental duties also lays down the various duties of the citizens towards the nation at large. These promote the sovereignty and integrity of the nation.
Individual interests
Individual interests are such claims or demands or desires involved in and looked at from the standpoint of the individual life immediately as such asserted in the title of the individual life.
In individual interests Dean Pound includes:
(a) Personality: Such interests are concerned with (a) the physical person, (b) freedom of will, (c) honor and reputation, (d) privacy and (e) belief and opinion.
(b) Domestic relations: They are concerned with the interests of individual in domestic relationship and that of the society in such institutions as family, marriage, divorce.
(c) Interests of substance: These include interests of property, freedom of industry and contract, freedom of association, etc.[iii]
Individual’s interests have been recognized both nationally as well as internationally as their basic rights or human rights. At the international level they are recognized in the various instruments like the Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1966, International Covenant on Social, Cultural and Economic Rights,1966 and a number of regional and specific conventions and declarations.
Under the Indian Constitution, they find recognition in the form of fundamental rights. The individual’s have been guaranteed certain rights and fundamental freedoms which are essential for their development. The Part III of the Constitution deals with the fundamental rights which are guaranteed to the individuals and are necessary for the very survival and development.
The Constitution expressly lays down the provisions for the protection of the fundamental rights. The fundamental rights are to be protected from the encroachment by the state authorities. For that purpose, the very first Article of the chapter on fundamental rights defines what all bodies constitute a state.
Article 13 of the Constitution declares all laws in contravention of fundamental rights void and unconstitutional.
The fundamental rights guaranteed under the Constitution can be broadly classified in six categories.
(1) The right to equality- Articles 14 to 18 of the Constitution lay down the provisions relating to the equality of individuals. All forms of discrimination on the basis of religion, caste, sex or place of birth are
forbidden under the provisions of these Articles.
(2) The right to freedom- Articles 19 to 22 of the Constitution provide the various freedoms to the individuals. Article 19 gives the freedom of speech and expression, of residence, of movement, of association. Article 21 gives the freedom of life and liberty. Article 22 protects from arrest in certain cases.
(3) The right against exploitation- Articles 23 and 24 provide the right against exploitation in all forms. Article 23 forbids traffic in human beings and forced labor. Article 24 provides measures for protecting children from exploitation.
(4) The right to freedom of religion- Articles 25 to 28 lay down the provisions relating to freedom of religion and conscience. Article 25 gives the freedom of conscience and freedom of free profession, practice and propagation of religion. Article 28 prohibits religious instructions in educational institutions maintained by the government.
(5) Cultural and educational rights- Articles 29 and 30 give the rights to the minorities to protect their culture and to establish and administer educational institutions. Article 29 confers a right on the religious, linguistic and cultural minorities to protect their language or culture. Article 30 gives rights to the minorities to establish and administer educational institutions of their choice.
(6) The right to Constitutional remedies- Articles 32 to 35 and 226 provide constitutional remedy for the violation of the fundamental rights. Under the provisions of Article 32, the Supreme Court can be moved in cases of violation of fundamental rights while under the provisions of Article 226, a person can move the High Courts for the protection of fundamental rights.
Thus, the Constitution of India lays down express provisions not only as to what the rights of individuals are but also lays down provisions for the protection of the same.
Conflicts and balance of interests
The various rights and freedoms of citizens are subject to the security and interest of the nation.
According to Jeremy Bentham, the purpose of law is to secure the greatest happiness of the greatest number.
Pound like Bentham tested the justification of law with reference to protection and enforcement of individual and social claims. The various interests of the individuals and societies have to be balanced in such a manner that the greatest good is obtained.
According to Pound the need of law is for securing social harmony and social justice to the general public with a minimum of waste of friction and maximum of material satisfaction of wants, needs, and interests.
The term ‘interests of the nation’ signifies the interests of the majority of the citizens. If the security of the nation is endangered, it means that the security of the citizens is in danger. Thus, in order to protect the interests of the majority or the greatest number, the interests of the individuals can be curtailed.
The citizens have been provided with a number of freedoms but these freedoms are not absolute. They are subject to the greater public interest. These freedoms can be enjoyed only as long as they do not adversely affect the greater good of the society.
Similarly, the State is not empowered to take any arbitrary action or make any arbitrary law which infringes the rights and interests of the individuals. The various State actions are subject to the rights of the citizens. The various executive, legislative and administrative actions are subject to the freedoms guaranteed to the individuals.
The various actions of the State have to pass the test laid down in the chapter on fundamental rights. They have to pass the touchstone of the individual’s rights.
The State is not authorized to restrict the rights guaranteed by the Constitution to the individuals in any case except for the restrictions provided by the Constitution itself. The fundamental rights of individuals are protected under the provisions of the Constitution itself and cannot be infringed by any law. Any law which infringes these rights is unconstitutional and void.
Thus, in cases of conflicts between the interest of the individual and the interests of the nation, it has to be seen that the greater good is affected. The two interests have to be balanced in a manner that the good of the majority is maintained.
When either of the two interests exceeds the limits set up by the other, the happiness of the majority is adversely affected. A balance between the two has to be maintained in such a manner that there is no decline in the gross national happiness.
Thus, the various interests of the individual are protected till they do not harm the national interest and the various national interests are protected till they do not override the individual’s interests.
A proper balance has to be maintained between the national interests and the individual interests to promote a greater harmony between the two.
Interests during national emergency
A situation of national emergency arises when there is a threat to the security of a nation. Such a situation arises in cases of wars, external aggressions or internal uprisings to overthrow the government. An attempt to damage the sovereignty results in a situation of national emergency. Under the provisions of Article 352, the President of India on being satisfied that there exists a condition or threat of war, external aggression or armed rebellion, may by a proclamation declare emergency in the whole or part of the territory of India.
At the time of national emergency, the interests of a nation take the paramount importance while those of the individuals are sidelined. This is based on the concept that the state is superior to the individual and with a risk on the nation’s interests the individual’s interests are also at risk.
The various freedoms of individuals are restricted in order to protect the interests of the nation.
Article 358 provides for the automatic suspension of the provisions of Article 19.
Article 358(1) while a proclamation of emergency declaring that the security of India or ant part of the territory thereof is threatened by war or by external aggression is in operation, nothing in Article 19 shall restrict the power of the state defined in part III to make any law or to take any executive action which the state would but for the provisions contained in that part be competent to make or to take, but ant law so made shall, to the extent of the incompetency, cease to have effect as soon as the proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.
Thus, the various freedoms enumerated under Article 19 cannot be claimed during the period of emergency if any Act passed by the Parliament restricts or overrides them.
It does not mean that any invalid law becomes valid during the period of emergency but simply that its invalidity is suspended during the period of emergency and hence, the same cannot be challenged in a court of law.
In Bennett Coleman and Co. v Union of India[iv], it has been held by the Supreme Court that the Newsprint Police of 1972-73 which was a continuation of the old policy made before the Proclamation of Emergency from attack under Article 19.It was observed that executive action which is unconstitutional at the time of its being taken is not immune from being challenged in a court of law during the Proclamation of Emergency. A Proclamation of Emergency, would not authorize the taking of detrimental executive action during that period affecting Article 19 without any legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted.
After the 44th Amendment of the Constitution, the scope of Article 358 has been somewhat restricted and now it cannot be invoked in cases of emergency on the ground of armed rebellion.
Now Article 358 comes into play only when emergency has been declared on the grounds of war and external aggression.
Article 359 of the Constitution provides that during emergency, the President of India can, by order suspend the right to move any court for the infringement of any fundamental right.
Article 359(1A) further states that while such an order is in operation nothing shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take. Any such law to the extent of the incompetency shall cease to have effect as soon as the order ceases to operate except as regarding things done or omitted to be done before the law ceases to have effect.
Prior to the 44th amendment, even the enforcement of Articles 20 and 21 could be suspended.
In the case of Shivakant Shukla v ADM Jabalpur[v], it was held by the Supreme Court that during the period of emergency there is no right to life and liberty and hence the writ of habeas corpus cannot be used. In this case, the Supreme Court did not acknowledge the right of persons held in unlawful detention as it stated that the courts have no right to question the validity of any law passed during the period of emergency.
Now, in wake of the 44th amendment, the decision of the Apex Court has been held in a very bad light.
However, after the 44th amendment, the enforcement of Articles 20 and 21 cannot be suspended.
Conclusion
According to Bentham, the purpose of law is to achieve the greatest happiness of the greatest number. The various interests of the individuals and societies have to be balanced in such a manner that the greatest good is obtained.
The various national and individual interests are to be enjoyed subject to the restrictions laid down by the other. Under the Indian Constitution, the interests of individuals are given paramount importance which cannot be infringed by the State except for in the cases of reasonable restrictions laid down in the Constitution itself. One of the reasonable restrictions on these interests is the national security and integrity.
In cases of national emergency, the individual interests are sidelined and the national interests are given a greater value so as to ensure the security of the State. The reason behind this is that the nation is superior to the individual and the preservation of the national interest will amount in the protection in the greater interests of the individuals at large. Thus, the national interests in such cases lead to the preservation of the interests of the majority.
Thus, the national interests and the individual interests are balanced in such a manner that harmony is achieved; however in cases of national emergency, individual interests can be restricted on the ground of greater good.
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