EDITORIALS & ARTICLES
Discuss the doctrine of 'rights as trumps'. (UPSC CSE Mains 2019 - Political Science and International Relations, Paper 1).
- The Doctrine of Proportionality formulates a set of conditions that, when jointly satisfied, indicate that the limitation of a constitutional right is justified. The doctrine justifies a limitation when
- there is a rational connection between the means that the law employs and the objective that it pursues,
- the law pursues its objective in a manner that minimally impairs the right, and
- the values of a free and democratic society are realized more fully by the limitation than the right itself.
- At each stage of this justificatory sequence, government bears the onus of justifying the limitation of a constitutional right. In the case of Om Kumar v. Union of India, the Supreme Court of India adopted this proportionality concept. The Supreme Court has also noted that Indian courts have been using this approach in circumstances of legislation that violates fundamental rights provided in Article 19(1) of the constitution since 1950.
- Ronald Dworkin''''s rights as trumps model argues against government regulation of morals (Doctrine of Proportionality). It states that that fundamental rights have an elevated status with respect to a range of collective goals asserted in the name of the public interest, including utility, popular preference, non-prohibitive cost, and administrative convenience. The temptation to balance fundamental rights against collective goals must be resisted.
- Collective goals might violate rights, but there can be no conflict between them. According to Dworkin, individual rights should prevail over government initiated laws promoting the collective good because such laws violate every person''''s right to equality.
- Dworkin argued that the concept of right against the government becomes most useful particularly when the society is divided on racial lines into majority and minority. The right to freedom of speech and religious freedom belong to this category. Therefore, they are strong rights. He asserts that these rights should be permitted and they should not be interfered or banned. These freedoms are to be allowed even if the welfare of the collectivity is infringed. On the contrary, he also presupposes a large area of rights where the state can make legislations curtailing those rights to achieve common welfare. They can be called weak rights.
- For example, restraining the movement on the roads for safety and smooth traffic movement does not mean restraining the rights, on the other hand, putting a restriction on publication or restraining the freedom of speech will infringe the rights even if it enhances general welfare. Thus, even though in both cases rights are involved, curtailment of one is justified, whereas the other is not.
- Habermas criticised "rights as trumps model" on the proposition that even if we assume that the human dignity usually prevails over other rights, it should not be considered absolute. There can be some unavoidable circumstances, where the right to dignity will be at least partially defeated.
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