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constitutional experts claim that there are certain
rights, albeit very few, which can still be treated as
"absolute". Examples given are:(a) Right to human
dignity which is inviolable,(b) Right not to be subjected
to torture or to inhuman or degrading treatment or
punishment. Even in respect of such rights, there is a
thinking that in larger public interest, the extent of their
protection can be diminished. However, so far such
attempts of the States have been thwarted by the
judiciary.] and all such rights are related. As per the
analysis of Aharon Barak [Aharon
Barak,Proportionality: Constitutional Rights and Their
Limitation (Cambridge University Press 2012).], two key
elements in developing the modern constitutional theory
of recognising positive constitutional rights along with
its limitations are the notions of democracy and the Rule
of law. Thus, the requirement of proportional limitations
of constitutional rights by a sub-constitutional law i.e.
the statute, is derived from an interpretation of the
notion of democracy itself. Insofar as the Indian
Constitution is concerned, democracy is treated as the
basic feature of the Constitution and is specifically
accorded a constitutional status that is recognised in the
Preamble of the Constitution itself. It is also unerringly
accepted that this notion of democracy includes human
rights which is the cornerstone of Indian democracy.
Once we accept the aforesaid theory (and there cannot
be any denial thereof), as a fortiori, it has also to be
accepted that democracy is based on a balance between
constitutional rights and the public interests. In fact,
such a provision in Article 19 itself on the one hand
guarantees some certain freedoms in Clause (1) of Article
19 and at the same time empowers the State to impose
reasonable restrictions on those freedoms in public
interest. This notion accepts the modern constitutional
theory that the constitutional rights are related. This
relativity means that a constitutional licence to limit
those rights is granted where such a limitation will be
justified to protect public interest or the rights of others.
This phenomenon--of both the right and its limitation in
the Constitution--exemplifies the inherent tension
between democracy's two fundamental elements. On the
one hand is the right's element, which constitutes a
fundamental component of substantive democracy; on
the other hand is the people element, limiting those very
rights through their representatives. These two
constitute a fundamental component of the notion of