SC responds sharply to AG Venugopal's remarks on fundamental rights

The Supreme Court today sharply reacted to the submission of Attorney General K K Venugopal that a host of rights have been read into the fundamental right on protection of life and personal liberty under the Constitution which "cannot be enforced".

The top law officer told a five-judge constitution bench headed by Chief Justice Dipak Misra that at least 30 positive rights have been created over a period of time by the apex court by expanding Article 21 (right to life and personal liberty) and some were unenforceable keeping in mind the problems faced by the country.

He referred to rights like right to shelter and employment.

The court, which was hearing two pleas to decide on questions including whether it can rely on or refer to parliamentary committee reports in judicial proceedings, asserted that such fundamental rights can be enforced.

The issue whether a parliamentary panel report can be relied upon in judicial proceedings had arisen after the petitioners had referred to the 81st Report of Parliamentary Standing Committee, issued on December 22, 2014, allegedly indicting some pharma firms for conducting trials of the controversial Human Papilloma Virus (HPV) vaccine.

Referring to the right to have clean environment as a fundamental right and the recent order banning sale of fire crackers, the bench said, "It can be enforced. Take our orders for ensuring green environment. My learned brother judge, Justice Sikri's order ensured that we could breathe after Diwali."

However, Venugopal submitted that "Article 21 is worded negatively but Your Lordships have read at least thirty positive rights into it. And they cannot be enforced."

The Attorney General, who argued that parliamentary panel reports cannot be subjected to judicial scrutiny as there was a broad separation of powers, also referred to the apex court verdict banning sale of liquor along the highways in the country.

Justice D Y Chandrachud, who had authored the liquor ban verdict, said "I am sorry, you have not read my judgment. We were enforcing your (Centre's) policy. The Centre had issued numerous directives for removing liquor vends along highways. India was becoming the accident capital."

"We relied on your (Centre's) policy to order removal of liquor vends. Our judgment clearly says it," Justice Chandrachud said.

The bench, which also comprised justices A K Sikri, A M Khanwilkar and Ashok Bhushan, made clear that it would not stay away from an issue just because Parliament was debating it and would rather ensure that the rights of people are being protected.

During the day-long hearing, the bench said that like separation of powers, its power of judicial review was also part of the basic structure of the Constitution and referred to the law on termination of pregnancy.

"Should we shut our eyes" if there was a report of parliamentary panel on termination of pregnancy, the bench said.

"We can declare a law unconstitutional and may ask Parliament to make the law. We are obliged and empowered to see and call for reports," the bench said.

The observation was made by the bench which is hearing petitions to decide whether the court can rely on or refer to parliamentary committee reports in judicial proceedings.