Binu Poulose v. District Collector — 1996 DIGILAW 201 (KER)

Judgment :- K. Narayana Kurup, J. The first petitioner who is the minor son of petitioners 2 and 3 was suffering from hemophilia. Petitioners 2 and 3 having refused to provide adequate medical treatment to the first petitioner, the first respondent District Collector issued Ext. P1 directing the fourth respondent Sub - Inspector of Police to take custody of the first petitioner and admit him to the Government hospital immediately. Necessary police protection was also directed to be given to the first petitioner in the hospital so that the doctor is not prevented from treating the child. Ext. P1 is under challenge in this Original Petition on the ground that it offends the fundamental rights of the petitioners guaranteed under Arts.21 and 25 of the Constitution of India. The petitioners have also sought compensation of a sum of Rs. 50,000/. each from the District Collector as also from the State for violation of their alleged fundamental rights. 2. Having bestowed my anxious consideration on the various issues involved in the case, I am not satisfied that the petitioners have made out a case for interference by this Court in proceedings under Art.226 of the Constitution of India. The alleged fundamental rights claimed by the petitioners in support of their contentions cannot take precedence over the 'police power' of the State to enforce public order, morality and health. 3. Absolute or unfettered individual rights do not, and cannot exist, in any modem State. This is the position in England (Liversidge v. Anderson (1942) A.C. 206 (261) as also in the United States (Schenck v. United States) (1919) 249 U.S.47), notwithstanding the constitutional guarantee of individual rights. The reconciliation of the conflict between power and liberty, between the claims of the political society on the one hand and the interests of the individual on the other, is a perennial problem of any society and a problem of 'recurrent difficulty' (Harrison v. Schaffer (1941)312 U.S.579 (583)) which curiously persists irrespective of any difference in the form of government. 4. 4. Since, with the disappearance of the fetish of laissez faire and the emergence of the Welfare State, it is generally acknowledged that the individual can have no absolute or unfettered right in any matter and that the welfare of the individual, as a member of a collective society, lies in a happy compromise between his rights as an individual and the interests of the society to which he belongs. There can be no protection of the rights themselves (Cox v. Hampshire (1941) 312 U.S.569 (574) unless there is a measure of control and regulation of the rights of each individual in the interests of all. In the United States, there was no limitation imposed upon any of the fundamental rights added to the Constitution by the first Ten amendments of 1791. But, it was soon realised that for the maintenance of public order, for the prevention of corruption of the public morals, incitement to crime and the like, some limitations must perforce be imposed upon the liberty of the individual. The Supreme Court in interpreting the Constitution had, therefore, to invent (Gitlow v. New York (1925) 168 U.S.652) the doctrine of 'Police Power' of the States under which the States have the inherent power to impose such restrictions upon the fundamental rights as are necessary to protect the common good, eg. public health, safety and morals. (Cooley, Constitutional law, P. 289). The liberty of the individual to do as he pleases, even in innocent matters, is not absolute. It must frequently yield to the common good (Adkins v. Children's Hospital (1923) 261 U.S.525). 5. In the words of Das J. of our Supreme Court (Gopalan v. State of Madras, (1950) SCR 88 (292) putting restraint on the freedom of wrong.doing of one person is really securing the liberty of the intended victims. Therefore, restraints on liberty should be judged not only subjectively as applied to a few individuals who come within their operations but also objectively as securing the liberty of a far greater number of individuals, 6. In other words, the police power is founded on the theory that when there is a conflict between the rights of the individual and the interest of the society, the latter must prevail. In an organised society . without which there cannot be any safeguard of individual rights . In other words, the police power is founded on the theory that when there is a conflict between the rights of the individual and the interest of the society, the latter must prevail. In an organised society . without which there cannot be any safeguard of individual rights . there cannot be any right which is injurious to the community as a whole. The police power is thus the authority to establish those rules of good conduct and neighbour lines which are calculated to prevent a conflict of rights and to ensure to each the uninterrupted enjoyment of his own, so far as that is reasonably consistent with a corresponding enjoyment by others. It is the governmental power of self preservation which permits reasonable regulation of rights and property which are essential to the prevention of the community from injury. 6. But though originally regarded as a negative or regulatory power to protect the community from injury resulting from individual action, the trend of judicial decisions in the United States is to regard it as something more, viz., the power of the State to secure 'general convenience, prosperity and welfare'. (Rottschaffer, Constitutional Law 1939, p. 452; Willoughby, Constitutional Law Vol. HI, P. 1774 and Eubank v. Richmond (1912) 226 U.S.137). Thus in upholding a total prohibition of the use on the public streets of amplifiers emitting 'loud and raucous noises' the U.S. Supreme Court in Koyacs v. Cooper ((1949) 336 US 77) observed that the "the police power of a State extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well.being and tranquility of a community." It would thus include the safeguarding or promotion of the economic needs of the general public, (Veix v. Sixth Ward Building Assn. (1940) 310 U.S.32 and Home Building & Loan Assn. v. Blaisdell (1933) 290 U.S.393) their convenience or general prosperity (C.B. & O.Ry. v. Drainage Commn. (1905) 200 U.S.561) and everything that tends to increase the industries of the State, develop its resource and add to its wealth and prosperity, (Barbier v. Connolly (1885) 113 U.S.27). In Day.Brite Lighting v. Missouri (1952) 342 U.S.421) it has been held that the police power is not confined to a narrow category but extends to all the great public needs including even political well.being. The Court said "The public welfare is a broad and inclusive concept. In Day.Brite Lighting v. Missouri (1952) 342 U.S.421) it has been held that the police power is not confined to a narrow category but extends to all the great public needs including even political well.being. The Court said "The public welfare is a broad and inclusive concept. The moral, social, economic and physical well.being of the community is one part of it; the political well.being, another." Upon this theory, the Court upheld the constitutionality of a statute which provided that employers shall not deduct wages for absence of employees for the purpose of exercising his vote on election days. 7. On the other hand, the police power does not confer upon the State an unrestricted authority to accomplish whatever the public may presently desire. It is the governmental power of self.protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury which of course, includes general welfare. (Penhandle Pipe Line Co. v. State of Highway Commn. (1935) 294 U.S.613, Treigle v. Acme Homestead Assocn. (1936) 297 U.S.189 (197); East N. Savings Bank v. Hahn, (1946) 326 U.S.230; Berman v. Parker (1918) 348 U.S.26). The regulations which are imposed in the exercise of the police power must have a real and substantial relation to the above ends and must not be arbitrary or oppressive. In other words, the police power must be exercised subject to constitutional limitations, including'Due Process' (14th Amendment to U.S. Constitution). 8. The position is no less different in India. Our Constitution, similarly, acknowledges that there cannot be any such thing as absolute or uncontrolled liberty, for that would lead to anarchy and disorder. Liberty has to be limited in order to be effectively possessed. The question, therefore, arises in each case of adjusting the conflicting interests of the individual and of the society. Vide . Gopalan v. State of Madras (1950) S.C.R.88 253.4). It has been observed by Mukherjee, J. in Gopalan's case that "there cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. Vide . Gopalan v. State of Madras (1950) S.C.R.88 253.4). It has been observed by Mukherjee, J. in Gopalan's case that "there cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed to the governing authority of the country to be essential to the safety, health, peace, general order and morals of the community Ordinarily every man has the liberty to order his life as he pleases, to say what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person. On the other hand, for the very protection of these liberties and society must arm itself with certain powers What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control . Arts.19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality". But, instead of leaving the question of limitation entirely to the Courts in each such case as is prescribed before them, our Constitution seeks to improve upon the American Constitution, by defining the scope of the limitations in the Constitution itself and by authorising the State to restrict the exercise of the freedoms guaranteed by the earlier part of Art.19, within the limits of the restricting clauses (2) to (6) which may be said to constitute a partial codification of the doctrine of police powers, of Kishorilal v. State,A.1957 punj.244 (251.2). The peculiarity of this Article be infact that it contains two parts . one declaring the rights themselves and another enumerating precisely the limitations which may be imposed by the State upon the exercise of each of these rights. The object of specifying the restrictions in Clauses (2) to (6) of Art.19 was to define with certainty the limitations that might be imposed upon the freedoms instead of leaving that to the disposal of the Judges. (Constituent Assembly Debates Vol. VII P. 41). The object of specifying the restrictions in Clauses (2) to (6) of Art.19 was to define with certainty the limitations that might be imposed upon the freedoms instead of leaving that to the disposal of the Judges. (Constituent Assembly Debates Vol. VII P. 41). It would be interesting to note in this contention the provisions in Art.29(2) of the Universal Declaration of Human Rights which seeks to grapple the question of limitations upon the exercise of individual rights, in a rather comprehensive manner: "In the exercise of his rights and freedoms everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order the general welfare in a democratic society." Similar is the blanket provision in Art.12 of the Japanese Constitution. "The freedom and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavour of the people who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare". As Dr. Ambedkar explained in the Constituent Assembly Debates Vol. VII, p. 41 what the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon our Supreme Court to come to the rescue of Parliament by inventing the doctrine of police power, it permits the State directly to impose limitations upon the fundamental rights." 9. In the light of the foregoing discussion, there is no scope for countenancing the various arguments put forward by the petitioner in this original petition. If the arguments of the petitioners are accepted, the State will have to be denied its authority of police power which is essential for the maintenance of the well being of the members of the community at large. Such an argument cannot be countenanced for the reasons already stated. Likewise, in an area where infectious diseases are endemic which takes a heavy toll of human lives, State must be invested with adequate power to intervene and take effective remedial measures by inoculation, vaccination and the like. Such an argument cannot be countenanced for the reasons already stated. Likewise, in an area where infectious diseases are endemic which takes a heavy toll of human lives, State must be invested with adequate power to intervene and take effective remedial measures by inoculation, vaccination and the like. That apart, it must be noted that the first petitioner has a fundamental right to life as guaranteed under Art.21 of the Constitution of India and that rights not liable to be tampered with lightly by petitioners 2 and 3. In the above view, the Original Petition must fail which is accordingly dismissed, however with no order as to costs.