Know your rights

Fundamental rights and their enforcement

U R Rai
PHI Learning
2011, pp 794
550

Eminent academic Professor Udai Raj Rai’s recently published book, Fundamental Rights and Their Enforcement, is an in-depth study of the enumeration and evolution of fundamental rights under our constitutional framework.

Rather than adopting a chronological approach or a purely case-law based approach, the book proceeds through a narrative of legal developments in various cases decided by the Supreme Court and their implications to the body of existing law.

These legal developments are discussed in the context of non-legal aspects affecting the development of law and the social needs which the law is intended to serve. Where appropriate, the author has made reference to the writings of political thinkers and jurists which played an important role in moulding the contours of the law. 

The entire narrative of the book is based on the values which were sought to be incorporated into our Constitution as fundamental rights, rather than looking at them merely as a set of precepts. Indeed, as the author explains in his preface, the commendable role played by the judiciary in dispensing justice based on this value-based system marks a change which the indigenous rulers were slow to adopt. Therefore, the judicial development of fundamental rights takes importance over any other area of study in relation to fundamental rights. It is this study that the author has brought out in his book. 

Interestingly, the book presents a classification of fundamental rights into ‘liberty-based’ and ‘equality-based’ rights. The author has also examined the intersection of fundamental duties and directive principles of state policy with fundamental rights, and has sought to reconcile some of the perceived tension between the three aspects.

The book contains a thorough analysis of contemporary developments in certain areas of law which are presently of great significance. The right to information is one such area, which has received a detailed treatment in this book, from a fundamental rights perspective.

Professor Rai has also sought to study the constitutional position of the media as an institution within the broad rubric of the right to free speech, including emerging phenomena such as the upsurge of opinion and expression in cyberspace. The law of sedition is another under-explored aspect which the author has considered in detail, in light of the prevalent political environment. It is this focus on fresh and emerging issues within the fundamental rights framework, which offers a unique vantage point for readers.

By classifying his analysis into ‘vertical application’ and ‘horizontal application’ of fundamental rights, the author has been able to focus distinctly on rights guaranteed against private persons, in addition to the enforcement of rights against the State. Again, this discussion provides much-needed illumination to important areas which have largely been neglected in academic writing.

U R Rai is well acknowledged as an eminent writer and professor of Constitutional Law, and this book is the result of his stint of six years as the Krishna Iyer Chair Professor at the NLSIU, Bangalore. His experience and acumen as an academic, and his interactions with lawyers, students as well as other academics, make his views on the subject a matter of keen interest for readers, and this book does not disappoint on that count.

The author has made detailed comments and presented his point of view candidly on numerous constitutional issues. His criticisms range from the reluctance of the Supreme Court to put right some objectionable elements in the law of preventive detention to its stance on the issue of reservation for Other Backward Classes.

On the latter issue, the author has commented on the alleged ‘political arithmetic’ that weighed with the court, while highlighting the inherent complexities faced by the court in dealing with the issue. It is evident that the criticism levelled by the author is offset by his understanding of the difficulties faced by court in adjudicating upon often complex, conflicting rights.

The book, primarily intended as a textbook for postgraduate students of law, brings out a comprehensive study of the legal development of fundamental rights and their enforcement, while taking account of a number of peripheral factors and circumstances which have contributed to their development. The author’s own views, expressed along with the exposition of the law, make this book a compelling read for students, academicians, judges, and as the author opines, ‘enterprising’ lawyers.