1 Introduction
The Fundamental Rights are
laid down in the Part III of the Indian Constitution and is considered as one
of the integral part of Indian Constitution. The Fundamental Rights are the
rights guaranteed by the constitution to the people of the country and are defined
as the basic human freedoms which every individual has a right to enjoy for a
proper and harmonious development of personality. The concept of Fundamental
Rights is mainly derived from four declarations. This chapter of the
Constitution of India has been described as the Magna Carta of India. As early
as 1214 the English people exacted an assurance from King John for respect of
the then ancient liberties. The Magna Carta is the evidence of their success
which is a written document. This is the first written document relating to the
fundamental rights of citizens. Thereafter from time to time the King had to
accede to many rights to his subjects. In 1689 the Bill Of Rights was written
consolidating all important rights and liberties of the English people. In
France Declaration of Rights of Man and the Citizen (1789) declared the
natural, inalienable and sacred rights of Man. Following the spirit of the
Magna Carta of the British and the Declaration of the Rights of Man and the
Citizen of France, the Americans incorporated the Bill of Rights in their
Constitution.
These rights find their origin in many places such as England Bill of Rights,
United States Bill of Rights and France Declaration of Bill of Rights of Man.
The framing of Indian Constitution can be best known by browsing transcripts of
Constituent Assembly debate. The Constituent Assembly was composed of members
elected from various British Indian Provinces and nominated by the princely
states. The framers if Indian Constitution had three things in mind – ensuring
unity, democracy and creating social revolution. The Constitution of India took
nearly three years in its formation and finally came into force on 26th January
1950.
The biggest challenge before the Constituent Assembly was to evolve a document
that would address the diversity amongst the population, create accountable
governance and an independent republic. The development of fundamental human
rights in India was due to exposure of students to the ideas of democracy,
working of parliamentary democracy and British political parties and was also
inspired by the :-
• England Bill of Rights
• Us Bill of Rights
• France Declaration of the Rights of Man and
• Development of Irish Constitution.
The inclusion of a set of Fundamental Rights had its genesis in the forces that
operated in the national struggle during British rule. Ms. Annie Besant
described the Constitution of India Bill as ‘home rule bill’ in 1985. This bill
envisaged for India a constitution guaranteeing to every of her citizen freedom
of expression , inviolability of ones house, right to property, quality before
law and in regard to public offences right to present claims, petition and
complains and rights to personal liberty. The Indian National Congress at its
Bombay session in August 1918 demanded the inclusion of declaration of rights
of the people of India as the British citizens in the new Government of India
Act. The Declaration Included amongst other things guarantees in regard to
equality before the law, protection in respect to liberty, life and property,
freedom of speech and press and right of association. In its December 1918
session the Indian National Congress passed another resolution demanding for
immediate repeal of all the laws, regulations and ordinances restricting all
the laws, regulations and ordinances restricting the free discussion of
political questions and conferring to the executive the power to arrest, detain
or arrest any British subject in India outside the process o f ordinary civil
or criminal law. The Common Wealth of India Bill finalized by the National
Convention of 1925 embodied a specific declaration of rights. The resolution
passed by Indian National Congress in 1927 at its Madras Session lay down that
the declaration of Fundamental Rights should be the basis of future
Constitution of India. The problems faced by the minorities in India further
strengthened the argument.
The Nehru Committee observed that the first care should be to have Fundamental
Rights guaranteed in such a manner which will not permit its withdrawal under
any circumstances. The Indian Statutory Commission refused to enumerate and
guarantee the demand of Fundamental Rights in the Constitution Act. Their
refusal was based on Simons Commission argument that abstract definition of such
rights is useless unless there existed the will and means to make them
effective. The Indian National Congress at its Karachi session in 1931 again
demanded for a written guarantee for Fundamental Rights in any future
Constitutional setup in India. This demand was also emphasized at the round
table conference at London. A memorandum circulated by the Mahatma Gandhi at
the second session of round table conference demanded that the new constitution
should include a guarantee to the communities concerned to the protection of
their cultures, language, scripts, profession, education and practice of
religion and religious endowments and protect personal laws and protection of
other rights of minority communities. The Joint Select Committee of the British
Parliament did not accept the demand for the constitutional guarantee of
Fundamental Rights to British subjects in India. The Committee observed that:-
….there are also strong practical arguments against the proposal which may be
put in the form of a dilemma: for either the declaration of rights is of so
abstract a nature that it has no legal effect of any kind or its legal effect
will be to impose an embarrassing restrictions on the powers of the
legislatures and to create a grave risk that a large number of laws will be
declared invalid or inconsistent with one or other of the rights so
declared….There is this further objection that the state has made it abundantly
clear that no declaration of fundamental rights is to apply to state
territories and it would be anomalous if such a declaration had legal force in
part only of the area of the federation.
The committee conceded that there were some legal principles which could
approximately be incorporated in the new constitution. Accordingly sections
295, 297-300 of Government of India Act 1935 conferred certain rights and forms
of protection on British subjects in India.
By the Objective Resolution adopted on January 22, 1947 the constituent
assembly solemnly pledged itself to draw up for future governance a constitution
wherein “shall be guaranteed and secure to all the people of India justice,
social, economical and political, equality of status, of opportunity and before
the law : freedom of thought, expression, belief, faith, worship, vocation,
association and action, subject to law and public morality” and wherein
adequate safeguards would be provided for minorities, backward and tribal areas
and depressed and other classes. Two days after the adoption of the resolution
the assembly elected Advisory Committee for reporting on minorities fundamental
rights and on the tribal and excluded areas. The advisory committee in turn
constituted on Feb27, 1947 five sub-committees which would deal with
fundamental rights.
The sub committee on Fundamental Rights at its first meeting on February 27,
1942 had before it proposal of B.N.Rau to divide Fundamental Rights into two
classes i.e. justifiable and non-justifiable.
An important question that faced the sub committee was that of distributing
such rights between the Provincial, the Group and the Union Constitution. In
the early stages of its deliberation the sub committee proceeded on the
assumption of this distribution and adopted certain rights as having reference
only to union and certain rights as having reference both to the union and to
the constitutional units. However later it was felt that if Fundamental Rights
differed from group to group and from unit to unit or were for that reason not
uniformly enforceable, it was felt the Fundamental Rights of citizens of the union
had no value. This reorganization leads to the realization that certain
Fundamental Rights must be guaranteed to every resident. The sub committee
recommended that all the rights incorporated must be binding upon all the
authorities whether of the union or of the units. This was thought to be
achieved by providing definition in the first clause. The expression the state
included the legislature, the government of the union and the units of all
local or other authorities within the territories of the union that the law of
union included any law made by the union legislature and any existing Indian
law as in force within the union or any part thereof.
The sub committee fully discussed various drafts submitted by its members and
others before formulating the list of Fundamental Rights. Dr.Ambedkar pointed
out that the rights incorporated in the draft were borrowed from constitution
of various countries where the conditions are more or less analogous to those
existing in India.
The draft submitted on April 3, 1947 was circulated to its members with the
explanatory notes on various clauses. The clauses contained in the draft report
were thereafter discussed in the sub committee in the light of the comments
offered by the members and the final report was submitted to the chairman of
the advisory committee on April 16, 1947. Three days later the sub committee on
the minority examined the draft clauses prepared by the fundamental rights sub
committee and reported on the subject of such rights from the point of view of
the minorities. The advisory committee deliberated on the recommendations made
by the two sub committee and accepted the recommendations for:
(1) Classification of rights into justifiable or non-justifiable.
(2) Certain rights being guaranteed to all persons and certain other only to
citizens
(3) All such rights being made uniformly applicable to the union and the units.
The committee also accepted the drafts of clauses 1 and 2 – the former
providing the definition of the state, the unit and the law of the union and
latter for the laws or usages inconsistent with the fundamental rights being
void in the form recommended by the sub committee also the word constitution
was replaced by the word this part of the constitution. The advisory committee
incorporated these recommendations in its interim report to the constituent
assembly submitted on April 23, 1947. The interim report dealt only with
justifiable rights i.e. fundamental rights. Later on August 25, 1947 the
advisory committee submitted a supplementary report mainly dealing with
non-justifiable rights i.e. the Directive Principles of State Policy or the
Fundamental Principles of Governance. A notable development took place on 10
December 1948 when the United Nations General Assembly adopted the Universal
Declaration of Human Rights and called upon all member states to adopt these
rights in their respective constitutions. The various stages through which the
various clauses on fundamental rights passed were similar to other parts of the
constitution.
Firstly- the constitutional adviser prepared a draft embodying a decision of
the constituent assembly. This draft was considered exhaustively and in detail
by the drafting committee, which prepared a revised draft and published it in
February 1948. The revised draft was then widely circulated. The comments and
suggestions received from all quarters were again considered by the drafting
committee and in light of these the committee proposed certain
amendments. Discussions in constituent assembly of the draft provisions
took place in November and December 1948 and August, September and October
1949. During these meetings the committee considered the various suggestions
for amendment made on behalf of Drafting Committee as well as those proposed by
the individual members of the assembly. The provisions as passed by the
assembly were again scrutinized by the Drafting Committee and incorporated by
the drafting changes wherever necessary in the revised draft constitution. The
revised draft was again placed before the assembly at its final session held in
November 1949.
The fundamental rights were included in the First Draft Constitution (February
1948), the Second Draft Constitution (17 October 1948) and final Third Draft
Constitution (26 November 1949) prepared by the Drafting Committee.
The fundamental rights were included in the constitution because they were
considered essential for the development of the personality of every individual
and to preserve human dignity. The writers of the constitution regarded democracy
of no avail if civil liberties, like freedom of speech and religion were not
recognized and protected by the State. Some commentators consider the Indian
Constitution to be an extremely lengthy document that goes into excessive
details about the structure and working of the government machinery. Most of
these rights are enforceable against the State by way of their language, while
some others are directed both against the State and private actors. The most
important feature however is that the fundamental rights gave the higher
judiciary a clear set of criteria to regulate relations between citizens and
the government (i.e. ‘vertical application of rights’) as well as among
citizens themselves (i.e. ‘horizontal application of rights’). Furthermore,
Indian Courts have interpreted these rights not only in a ‘negative’ dimension
(i.e. in terms of protection against violations) but also in a ‘positive’
dimension (i.e. in terms of entitlements to benefits).
The right to freedom and personal liberty has a number of limiting clauses, and
thus has been criticized for failing to check the sanctioning of powers often
deemed "excessive" The phrases "security of State",
"public order" and "morality" are of wide implication.
The meaning of phrases like "reasonable restrictions" and "the
interest of public order" have not been explicitly stated in the
constitution, and this ambiguity leads to unnecessary litigation. Employment of
child labour in hazardous job environments has been reduced, but their
employment even in non-hazardous jobs, including their prevalent employment as
domestic help violates the spirit and ideals of the constitution.
2 Reach of Fundamental
Rights
2.1. Against who are they
claimed?
Generally Fundamental Rights are claimed against the state and its
instrumentalities and not against private bodies. Article 13(2) of
constitution of India bars the ‘state’ from making any law which infringes a
fundamental right. Article 13(2) reads as
“The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this”
The two important concepts used in this provision are ‘state’ and ‘law’. The
term ‘state’, for Part III is defined by Article 12 , which reads as
“In this Part, unless the context otherwise requires, “the State’’ includes the
Government and Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the territory of
India or under the control of the Government of India.”
Hence according to Article 12 ‘state’ includes-
1. Government and Parliament of India and the
2. Government and the Legislature of each of the States and
3. All local authorities
4. Other authorities
2.2. Role of judiciary in interpreting ‘other authorities’ as limitation on
state power
The most significant expression used in Article 12 is ‘other authorities’. This
expression is not defined in the Constitution. It is therefore for the Supreme
Court to define this term. Hence Supreme Court of India has largely
interpreted this word to limit the powers of the state. Wider the scope of
‘other authorities’, wider the scope of ‘state’ and wider the scope of state;
the restriction under Article 13 will be wider. In this way Supreme Court has
limited the powers of the state.
India has since the Nehruvian era has adopted the model of welfare state. The
functions of government are performed through the traditional government
departments and officials while some are discharges through autonomous bodies
existing outside the departmental structure.
While govt. working through the department fall within the definition of state
under Article 12, doubts have been cast as regards the character of autonomous
bodies. Autonomous bodies can, further be divided into statutory authority and
non statutory authority.
2.2.1 Principle of ‘Ejusdem generis’
In University of Madras v/s Santa Bai , the Madras High Court evolved the
principle of ejusdem generis i.e. of the like nature. It means that those
authorities are covered under the expression ‘other authorities’ which perform
governmental or sovereign functions. Madras High Court by evolving this
principle took a narrow view of Article 12.
2.2.2 Principle of Statutory Authority
In the case of Electricity Board, Rajasthan v. Mohan Lal , State Electricity
Board was set up by a statute, having some commercial functions to discharge.
The Supreme Court overruled the decision of Shantabai case and held State
Electricity Board to be state under Article 12. The Supreme Court further held
that ‘other authorities’ would include all authorities created by the
Constitution or statute on which powers are conferred by law. This is known as
principle of statutory ‘authority’. The court further held that it was not
necessary that the statutory authority should be engaged in performing
government or sovereign functions even if it is performing commercial functions
it will be considered as the state within Article 12.
2.2.3 Principle of Instrumentality of the state
In the case of Sukdev Singh v. Bhagat Ram Sardar Singh Raghuvanshi the
court had to deal with the question, whether statutory corporations such as the
ONGC, IFC and LIC, came within the definition of “the State” under article 12.
Justice Mathew in this case gave the principle of instrumentality of state;
which states that any agency, through which state can function, is termed as
‘other authorities’ within Article 12. The court further held that the three
corporations were “the State” as the three corporations were created by
statutes, had the statutory power to make binding rules and regulations, and
were subject to pervasive government control, hence an instrumentality of the
state.
The question was considered more thoroughly in Airport Authority case .
International Airport Authority is a body corporate constituted under
International Airport Authority Act, 1971. The director of authority had issued
a notice, inviting tenders for putting up and running a second class restaurant
and two snack bars at the International Airport at Bombay. Tenders were
received in response to the notice. Shri R.D Shetty, the appellant, who was not
a tenderer, filed a writ petition which was rejected by the Bombay High Court.
He urged that the notice inviting tenders by the Airport Authority had
stipulated a condition of eligibility, but subsequently the same was charged
without any rational justification, as a result of which he could not submit
his tender. It was further urged before the Supreme Court that the
International Airport Authority, being a “State” within the meaning of Article
12 of the Constitution, was bound to give effect to the condition of
eligibility set by it and not entitled to depart from it at its own sweet will
without rational justification.
Supreme Court held that “where the Government is dealing with the public,
whether by way of giving jobs or entering into contracts or issuing quotas or
licenses or granting any other form of largesse, the Government cannot act
arbitrarily at its sweet will and like a private individual deal with any
person it pleases, but its action must be in conformity with a standard or norm
which is not arbitrary, irrational or irrelevant. The power or discretion of
the government in the matter of grant of largesse including award of jobs,
contracts, quotas, licenses etc. must be confined and structured by rational,
relevant and non-discriminatory standards or norms and if the Government
departs from such standard or norm in any particular case or cases, the action
of the Government would be liable to be struck down, unless it can be shown by
the Government that the departure was not arbitrary, but was based on some
valid principle which in itself is not irrational, unreasonable or
discriminatory.” After making aforesaid observations, the Supreme Court further
held that Corporations established by statute or incorporated under law are an
instrumentality or agency of the Government.
The International Airport authority, a statutory was held to be an
‘authority’. The S.C. also approved the principle of instrumentality as laid
down by Justice Mathew in the case of Sukhdev v. Bhagat Ram. The S.C. hence
developed the general proposition that an ‘instrumentality’ or ‘agency’ of the
government would be regarded as ‘authority’ or ‘state’ within Article 12.
2.2.4 Non Statutory bodies
By now the questions of statutory bodies had been settled yet that of the non
statutory bodies, still continued to cause and confusion and difficulty.
In the case of Sabhaji Tewari v. India the Supreme Court held that the
Indian Council of Scientific Research was, a non statutory body, but under a
good deal of government control and funding, not a state. This went against the
principle of instrumentality as laid down in Sukhdev case.
The question regarding the status of a non statutory body was finally clinched
in the case of Ajay Hasia v. Khalid Mujib , where a society registered under
the Societies Registration Act running the regional engineering college
sponsored, supervised and financially supported by the Government was held to
be an ‘authority’. Money to run the college was provided by Central and State
governments. The state government could review the functioning of the college
and issue certain instructions if considered necessary. Nominees of sate ans
cental governments were the members of the society including its chairman. The
S.C. held
“...the concept of state or instrumentality or agency of the government is not
limited to a corporation created by a statute but is equally applicable to a
company or society ...”
In Ajay Hasia the S.C. laid down the following tests to adjudge whether a
body is an instrumentality of the government or not:
1. One thing is clear that if the entire share capital of the corporation is
held by Government, it would go a long way towards indicating that the
corporation is an instrumentality or agency of Government.
2. Where the financial assistance of the State is so much as to meet almost
entire expenditure of the corporation, it would afford some indication of the
corporation being impregnated with Governmental character.
3. It may also be relevant factor whether the corporation enjoys monopoly
status which is State conferred or State protected.
4. Existence of deep and pervasive State control may afford an indication that
the corporation is a State agency or instrumentality.
5. If the functions of the corporation are of public importance and closely
related to Governmental functions, it would be a relevant factor in classifying
the corporation as an instrumentality or agency of Government.
6.'Specifically, if a department of Government is transferred to a corporation,
it would be a strong factor supportive of this inference' of the corporation
being an instrumentality or agency of Government.
The law now appears to be settled in view of the seven judge constitution bench
of S.C. in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical
Biology , where it concluded that tests formulated in Ajay Hasia were not rigid
set of principles.
Once a body is characterised as an ‘authority’ under Article 12 several
significant incidents invariably follow:
1. The body becomes subject to the discipline of Fundamental Rights.
2. The body also becomes subject to the discipline of Administrative Law.
3. The body becomes subject to the writ jurisdiction of the S.C. under Article
32 and that of High Courts under Article 226.
Hence by liberally interpreting the term ‘other authorities’ under Article 12
of the constitution has put limitation on the powers of state.
2.3. Views of National Commission to Review the Working of the
Constitution
National commission to review the working of the constitution has said
that Courts have ruled that where there is pervasive or predominant
governmental control or significant involvement in the activities, such bodies,
entities and organisations fall within the definition of “the State”. As a
result of judicial interpretation, “the State” has been held to include
statutory bodies such as insurance corporations, nationalised banks, airline
corporations, electricity boards, educational institutions and societies
whose composition and administration are predominantly controlled by the
government. Consequently the reach and extent of protection of fundamental
rights has been widened and greater protection has been afforded especially in
the area of employment against discriminatory practices. Again there are
private, non-State entities which discharge important quasi-governmental or
important public functions, which have repercussions on the life and welfare of
the community. Such entities and bodies can be regarded as “the State” as would
appear from the concurring opinion of Justice Mathew. “Institutions engaged in
matters of high public interest or performing public functions are, by virtue
of the nature of the functions performed, government agencies. Activities which
are too fundamental to the society are by definition too important not to be
considered government function”.
It is a matter for consideration whether the definition of "the
State" should be widened to include such non-State entities and make them
subject to the discipline of fundamental rights. The consequence will be not to
make all actions and decisions of non-State entities subject to judicial review
but only those acts or omissions which are violative of fundamental rights
guaranteed in Part III of the Constitution.
Another matter for consideration is whether the judiciary should be included in
the definition of “the State” in article 12.
Divergent views have been expressed by the Supreme Court on the question
whether a judicial order can be violative of a fundamental right.
Another strand of thought is that the inclusion of the judiciary in the
definition of ‘the State’ should be confined to article 21 of the Constitution
which guarantees that “no person shall be deprived of his life or personal
liberty except according to procedure established by law”. It is article 21
which is mainly invoked in the case of judicial orders. The controversy has
centered round the question whether a judicial order which is without
jurisdiction can be challenged as violative of article 21 of the Constitution.
The National Commission to Review the Working of the Constitution 2002, had
recommended that in article 12 of the Constitution, the following explanation
should be added; ‘Explanation: – In this Article, the expression “other
authorities” shall include any person in relation to such as it functions which
are of a public nature.’ The rationale was that, after globalisation and privatisation,
traditional functions of a welfare state had transferred to individuals and
private agencies. Thereby, fundamental rights and duties that bound the state
also passed to them.
The Law Ministry however opposed the suggestion that private entities
performing public function be brought within the ambit of Article 12 to
safeguard public interest. The Ministry believed that making fundamental rights
enforceable against private bodies would be against the concept enshrined in
the Constitution that the protection against violation of the rights by
individuals must be sought in the ordinary law.
3 Limitation Imposed by
Fundamental Rights on Pre and Post constitutional laws
Article 13(1) of the Indian constitution declares that all the laws
in force in the territory of India immediately before the commencement of this
constitution shall be void to the extent to which they are inconsistent with
the provisions of part III of the constitution. Clause (2) of this article
provides that the state shall not make any which takes away or abridges the
fundamental rights conferred by the part III of the constitution and any law
made in the contravention of the fundamental rights shall, to the extent of the
contravention be void. In this way the article 13(1) talks about the
fundamental rights as the restriction on the sate power by the virtue of the
pre-constitutional laws and article 13(2) in the same way impose restrictions
on the state powers through post-constitutional laws.
Article 13 provides teethes to the fundamental rights. It makes these rights
enforceable in the courts. Thus article 13 deals with the impact of fundamental
rights on the state action. It provides for the judicial review of all the
laws, whether past or future. It is said to be the charter for the judicial
review. The power of the judicial review is exercised by the
supreme and high courts through article 32 and 226 respectively. The
courts can declare a law unconstitutional if it is inconsistent with the
fundamental rights and this power of the judicial review over the legislative
action has been declared to be an integral and essential feature, constituting
part of the basic structure of the basic structure of the constitution.
3.1 Article 13 is not retrospective in Effect
Fundamental rights are secured by the constitution when it come into force on
the 26th January, 1950.so, no fundamental rights was available to the citizens
of the India prior to the commencement of the constitution. It follows that as
regard the act done or transactions completed before the commencement of the
constitution, fundamental rights cannot be invoked and their validity cannot be
determined at the touchstone of the fundamental rights. The words in the
Article 13(a) i.e. “law in force...Shall…be void” explains that the laws, which
were valid and enforceable prior to the commencement of the constitution, shall
become void if they are inconsistent with the fundamental rights. Those laws
have not been declared void ab initio. The effect of the commencement laws on
those laws is that those laws, if inconsistent with any fundamental right,
shall become void prospectively. Hence, fundamental rights are prospective in
operation.
In the case of keshavan Madhava Menon v. State of Bombay ,the applicant who was
the secretary of the people’s publishing house Ltd., a company registered at
Bombay published a pamphlet inn 1949 titled as “ railway mazdooron ke khilaf
nai sazish”. For this, a prosecution under the press (emergency powers) act,
1931 was started against him. During the pendency of the proceedings the
constitution of the India came into force. Soon after the applicant filed a
petition praying that the press (emergency powers) act, 1931 being
inconsistent with the article 19(1)(a), which secures the citizens with the
right to freedom of speech and expression, had become void and incorporative,
so the proceedings against him be quashed and he be ordered to be acquitted.
But the Supreme Court held that Article 13(1) could not apply to this case as the
offence was committed before the commencement of the Indian constitution and
thus, the proceeding against the petitioner are not affected.
3.2 Fundamental rights as restriction on pre-constitutional
laws
3.2.1 Doctrine of Severability
When the part of the statute is declared unconstitutional, then the question
arises whether the whole of the statute is to be declared void or the only part
that is inconsistent with the fundamental rights. If we carefully read the
wordings of the article 13(1) of Indian constitution, we will get to know that
it says that all the laws in force, only to the extent of the inconsistency to
be declared as void.
The Supreme Court has devised this doctrine of the severability or the
separability, it means that if the if an offending provision can be removed
from that which is constitutional then only that part to be declared as
void and not the entire statute. Article 13 of the constitution uses the words
“to the extent of such inconsistency be void” which means that when some provisions
of law is held to be unconstitutional, then only the repugnant provisions of
law in question shall be treated by courts as void and not the whole act.
3.2.2 Doctrine of eclipse
The prospective nature of the article 13(1) of the Indian constitution has
given rise to the doctrine of eclipse. The doctrine of the eclipse is
based on the principle that a law which violates fundamental rights is not
nullity or void ab initio but becomes only unenforceable i.e. remains in a
moribund condition. It is over-shadowed by the fundamental rights send remains
dormant, but it is not dead. Such laws are not wiped out entirely from the
statue book. They exist for all the past transactions, and for all past
transactions and for the enforcement of the rights acquired and liabilities
incurred before the present constitution came into force and for determination
of rights of the persons who have not been give fundamental right by the
constitutions e.g. non-citizens. It is only as against the citizens that
they remain in dormant or moribund condition but they remain in operation as
against non-citizens who are not entitled to the fundamental rights.
In Keshav Madhava Menon v. State of Bombay , the Supreme Court held that a law
in force before the commencement of the constitution if inconsistent with a
fundamental right, did not become void “in toto” or for the all proposes or for
all times or for all persons. Such law becomes void only to the extent of its
inconsistency with the fundamental right. The law becomes void qua persons,
whose fundamental right. , it violated. The only effect of the article 13(1) on
the inconsistent law was that, qua persons entitled to the fundamental right,
the law becomes ineffective or inoperative for the time being. The law got into
a dormant or moribund state or that it was shadowed by the fundamental right it
violated, or that it was so eclipsed. Therefore, if by amendment of the
fundamental right, enacted subsequent to the commencement of the constitution,
the cast on the law was removed, the law would get revived and operative. To
achieve this effect, courts apply the doctrine of eclipse.
In Bhikaji Narayan v. State of Madhya Pradesh , The C.P.& Berar Motor
vehicles (amendment) Act, 1947 amending the motor vehicles Act,1939,authorized
the provincial government to nationalize the road transport business and carry
it out to complete exclusion of all others. The act was well within the
legislative competence of the provincial legislature as no fundamental rights
were available to the people in 1947, i.e. prior to the commencement of the
constitution. However, on the commencement of the constitution, the Act got
into conflict with the fundamental right guaranteed to citizens by the Article
19(1)(g), to carry on any trade or business and hence the Act become void under
Article 13(1) of the constitution. But this infirmity in the act was removed by
the constitution(1st Amendment) Act,1951 which inserted , inter alia sub-clause
(ii) to clause(6) in article 19, authorizing the state to carry on any trade or
business to the partial or complete exclusion of the citizens. Again the
constitution (4th Amendment) Act,1955 amended Article 31, relating to
fundamental right to property, to the effect that adequacy of compensation for
acquisition of property by the state under Article 31(2), was declared to be
non-justiciable. It was after these amendments that the petitioners, who were
carrying on the business as stage operators, challenged the C.P. & Berar
Motor vehicles (Amendments) Act,1947 as inconsistent with their fundamental
rights under article(1)(g) and 31(2) and hence void under Article 13(1).
The Supreme Court upheld the constitutionality of the impugned Act and
enunciated the doctrine of the eclipse. The court held that on the commencement
of the constitution, the impugned act became void to the extent it was
inconsistent with the right of citizens guaranteed by article 19(1)(g) as it
then stood. The true position was that the impugned law, as it were, became
eclipsed, for the time being by the fundamental right. The law, as against the
citizens, remained in a dormant or moribund condition. The effect of the 1st
Amendment, 1951 was to remove the shadow and make the impugned Act free from
all blemish or infirmity. Further, the impugned Act got inconsistent with
Article 31, which guaranteed the right to property. And it continued to be so
inconsistent and therefore became void under Article 13(1), till the 4th
Amendment, 1955 was enacted. The 4th Amendment 1955 had the effect of removing
the inconsistency of which the impugned Act was suffering since the
commencement of the constitution.
3.3 Justifiability of Post- constitutional Laws
The state shall not make any law which takes away or abridges the rights
conferred by this part or any law made in contravention of this clause shall,
to the extent of contravention, be void. It is a crucial provision which deals
with post constitutional laws. In India, legislative powers of state are
absolute. Even by article 245(1), the legislative powers are to be made
‘subject to the provisions of the constitution’. Unlike England, parliament is
not supreme in India; Constitution of India, 1950 is the supreme law of land
and nothing is above it. It is within the competency of the courts to judge and
declare whether there has been any contravention of law. Basically, there are
two principle limitations to the legislative power of the state. One of them is
competency of parliament as prescribed in article 245 & 246. The other one
is that such laws must be subject to provisions of constitution and must not
take away or abridge the rights conferred by part III. Article 13 merely
incorporates that reservation. The article is not the source of protection of
fundamental rights, but the expression of reservation. It means that this
article empowers the courts to strike down the legislation if it in violation
of part III of the constitution but does not grant protection to state citizens
in certain area.
Article 13(2) is a mandatory clause. The language used in this clause is ‘the
state shall not make’ showing that the state is under strict responsibility not
to make any law which infringes the fundamental rights of a citizen. So, if
there is any provision against fundamental rights, it becomes void ab initio
that is from the very beginning. Here it get differentiated from article 13(1)
as under art 13(1) a pre-constitutional law subsists except to the extent of
its inconsistency where as the post constitutional laws cannot be made in
contravention to part III as it is void ab initio.
The Supreme Court has further bolstered its protective role under article 13
(2) by laying down the proposition that judicial review I the best feature of
constitution. If the courts would deprive of their power of judicial
review, it would mean that fundamental rights become non-enforceable. They will
become rights without remedies or writs without water and the controlled
legislation will become uncontrolled.
3.4 Unconstitutionality of a Statute
Article 13(2) refers to post constitutional laws and states that a law is void
if it is in inconsistence with fundamental rights. A void law is not
enforceable and no rights or duties can be guaranteed under such a statute. Any
law made in contravention of part III is dead from the very beginning and cannot
at all be taken notice of or read for any purpose whatever. But principle may
not hold true in the case of pre-constitution law but it stands valid to a
great extend in post- constitutional law. It is well explained in doctrine of
eclipse and doctrine of severability.
3.4.1 Doctrine of Eclipse and post-constitutional laws
The doctrine of eclipse envisages that a law inconsistent with the fundamental
rights is not wiped out altogether from the statute books after the
commencement of the constitution as it continued to exist in respect to rights
and duties which have accrued before the date of commencement and if the
fundamental rights have been amended then the effect would be to remove the
shadow and to make the act impugned free from all blemish. Fundamental
rights are a limitation on state power. Article 13(2) expresses this
limitation. It declares an impugned act void ab initio. It does not have any
retrospective effect. Thus, it could not be revived even if the relevant
fundamental right is amended to remove the hurdle from the way. If certain law
has been declared as void with respect to the citizens of India and is
operational in respect of non-citizens; with due amendment in fundamental
rights, the law will not be revived. Art. 13(2) affects the competence of the
legislature to enact it with respect to the citizens, the law will have to be
re-enacted after the constitutional amendment as it is desired to make it
operative for the citizens as well.
3.5 Doctrine of Waiver
The doctrine of waiver explains that a person, entitled to a right or
privilege, is free to waive that right or privilege. It is voluntary
relinquishment or abandonment of a known existing legal right or privilege.
Waiver is an agreement between the parties and a party fully knowing of his
right agrees not to assert a right for a consideration. Once a person has
so waived his right, he would not be allowed to claim it afterwards but the
same is not true in the case of the fundamental rights because in any case they
cannot be waived.
4. Role of judiciary in applying Fundamental rights
as a limitation
Article 13 makes judiciary as the protector and guardian of fundamental rights.
Judiciary is the interpreter of fundamental rights. It protects the rights of
people from the vicissitudes of political controversy and places them beyond
the reach of political parties. The Supreme Court acts as the “sentinel on a
que vive”. Supreme Court ensures that no law infringes fundamental rights.
Supreme Court has displayed judicial creativity of high order in interpreting
these rights. This interpretation of rights facilitates the change in socio,
economic and political environment in the country which demands thee
recognition of new rights and many a time this law grows through courts.
4.1 Doctrine of Judicial Review and Role of Judiciary
Writs and public interest litigations are the tools in the hands of public
through which they demand protection of fundamental rights and Supreme Court
and High Court ensures these rights under article 32 and 226 respectively of
Indian Constitution Act, 1950. The Supreme Court has further bolstered its
protective role under article 13 (2) by laying down the proposition that
judicial review I the best feature of constitution. Constitution the
Supreme Court of India possesses implied power to declare any Act of the
Central or State Legislature or any decree of the Executive as ultra virus, if
it does not conform to the provisions of the Constitution. The power of the
Judiciary to review the Act of the Legislature or the Executive in order to
determine its constitutional propriety is known as the “Doctrine of Judicial
Review”. This concept has been taken from U.S. Constitution. Even
U.S. Constitution does not provide this doctrine specifically but in the case
of Marbury v. Madison, it was held that it is duty of judiciary to decide what
the law is. If a law is in inconsistent to constitution, the courts may decide
the case conformably to the law and disregarding the constitution. Hence,
judicial review is of the essence of judicial duty. If the courts would deprive
of their power of judicial review, it would mean that fundamental rights become
non-enforceable. They will become rights without remedies or writs without
water and the controlled legislation will become uncontrolled. In the
case of Kesavananda Bharti v. State of Kerala , it was said that judicial
review has become the integral part and basic structure of Indian Constitution
and basic structure cannot be amended.
4.2 Doctrine of Severability and Role of Judiciary
When a part of statute is declared on constitutional then the question arises
whether the whole statute is to be declared void or only that part which is
constitutional should be declared void. So, to resolve this problem, Supreme
Court has devised the doctrine of severability. Whenever Indian legislation
crosses its border and make provisions of some statute ultra virus, Indian
Judiciary plays active role in determining whether the whole statute is to
declared void or only a part of it. The constitution makes when they used the
words “to the extent of” in both clauses of article 13 intended that the
pre-constitutional law and post constitutional law should be void as far as
their inconsistency went. So if a part is inconsistence then only that part
should be removed from the statute, not the entire law should be declared void
provided that the propositions laid down in R.M.D.C. V. Union of India as
regards this doctrine must be analysed. The case of R.M.D.C. v. Union of India
is a case in which Supreme Court laid down certain proposition as regards to
doctrine of severability. It laid down some test of severability. It requires
the courts to ascertain whether the legislature would at all have enacted the
law if the severed part was not the part of law. if the provisions are so badly
mixed up and they cannot be separated, there shall be invalidity of act in its
entirely. It the parts are separable but the left is unable to stand
independently or remains very thin, then the whole act will be declared void.
Hence, only if they are distinct or separable from the invalid provisions what
survives can stand on its own and both are not the parts of one scheme, then it
will be upheld and rest will be held enforceable. In this case, judiciary
clearly gave some basis to decide whether the whole act or only its part is to
be declared void.
In the case of Romesh Thappar v. State of Madras , where the law imposed the
restriction on fundamental rights and where I was impossible to separate the
two, the whole law was struck down by Supreme Court. Paragraph seven of tenth
schedule of Indian Constitution provided that: “no court shall have any
jurisdiction in respect of ant matter connected with the disqualification of a
member of house under this schedule”. In the Gopalan Case , section 14 of
preventive detention act was struck down only as omission of this section will
not change the nature or structure of subject of legislation. Section 14 is
ultra virus does not affect the validity of rest of statute. Even in Kihota
Hollohon v. Zachilhu , the Supreme Court declared this paragraph as
unconstitutional and invalid in so far as it affected the jurisdiction of the
Supreme Court and high Courts. Applying the doctrine of severability, the court
ruled that it could be applied to a composite amendment which contained
amendments in provisions which did not require ratification by state.
4.3 Doctrine of Waiver and Role of Judiciary
This doctrine explains that a person, entitled to a right or privilege, is free
to waive the right or privilege. It is a voluntary abandonment of his/her
rights and privileges. It is not open to an accused to waive or give up the
constitutional rights and gets convicted. In the case of Behram v. State of
Maharashtra , the judge opined that fundamental rights can be divided into two
broad categories. One referring benefits to individuals and other conferring
benefits on the general public. The argument that the fundamental rights by an
individual can be waived off was not accepted by majority of judges, otherwise,
there will not be any use left of this doctrine. A citizen cannot invite
discrimination by telling the state ‘you can discriminate’ or get convicted by
waiving the protection under constitution. This doctrine of waiver
is well accepted in U.S. Fundamental rights can be waived there.
In the case of Bashesher Nath v. Income Tax Commissioner , a person who was
convicted of concealment of large amount of income agreed upon setting the
issue in 1954 by paying the money of Rs. 3, 00,000in monthly instalments by the
way of arrears of tax and penalty. In 1955, this section 14 of Taxation of
Income Act was held void. Then the petitioner challenged the statement between
them regarding settlement of issue. But the respondent contended that the petitioner
by entering into agreement has waived his rights guaranteed under article 14 of
Indian Constitution. The court held that these rights have been put in the
constitution but merely for the benefit of individual but as a matter of public
policy for the benefit of general public. It is obligation imposed on state by
constitution. No person can relieve the state of this obligation. The reason
for this is that India is a middle class country with majority as poor
economically backward not yet conscious to their rights. Fundamental rights are
mandatory on the state and no citizen can relieve the state of the solemn
obligation imposed on it. Hence, here the judiciary plays the role. It protects
the rights of people.
Argument of estoppels as to waive the right is not valid. In Olgas Tellis
case, it was again asserted that the purpose of these rights is to benefit
public and to secure the large interests of the community. But it does not mean
that if a person says that he would not enforce a fundamental right against
himself, it would create estoppels against him. Such a concession, if enforced,
would defeat the purpose of constitution. it was also held that
acceptance of retrenchment benefit by a person does not mean that he has
surrendered all his constitutional rights and he would terminated without
departmental enquiry and without any right of hearing.
The doctrine of waiver developed by the Supreme Court of India denotes
manifestation of its role protector of fundamental rights.
5 Conclusion
Fundamental human rights have been described as rights which are inalienable
and guaranteed to every person. They have also been defined as “rights which
stand above the ordinary laws of the land and which in fact are antecedent to
the political society itself”. One of the most common features of
contemporary fundamental rights is the inclusion of one or more
limitations clauses. In turn, the use of limitations clauses has given
rise to adjudicative structures that at least formally sever the
definition of a right from its limitation. Fundamental rights drafted in such a
way are often thought of as an advance over the contemporary sociological
model, in which reasonable limits are inherent in the conception of the
constitutional rights themselves. In this group project, we intend to argue the
contrary; there is no justification for the two-stage division between: (1) the
definition of a legal right and determination of whether that right has been
infringed in a particular instance, and (2) the determination of whether the
infringement of a right is nevertheless ultimately justified. We put forward
that, despite the proliferation of two-stage concept of fundamental rights, the
dominant interpretation of such bills of rights creates unnecessary
interpretative difficulties and threatens to distort rights adjudication. The
concept concerns about the erosion of parliamentary sovereignty with the
grant of unlimited, absolute rights, and to provide the judiciary with some
guidance for interpreting rights. When a government (or other party) contends
that state action limiting a right is justified, it is arguing that
notwithstanding an intermediate finding that there has been a right violation,
there are nevertheless competing demands and reasons that defeat the claim of
right in this instance. The separation of powers between
Legislature, Executive and the Judiciary constitutes basic structure, has
been found in Kesavananda Bharati's case by the majority. Later, it was reiterated
in Indira Gandhi's case. A large number of judgments have reiterated that
the separation of powers is one of the basic features of the Constitution.
5.1 The Basic Structure Test
In this connection, it is necessary to examine the nature of the constituent
power exercised in amending a Constitution. The question before us is not about
power to amend Part III after 24th April, 1973. As per Kesavananda Bharati,
power to amend exists in the Parliament but it is \ subject to the limitation
of doctrine of basic structure. The fact of validation of laws based on
exercise of blanket immunity eliminates Part III in entirety hence the 'rights
test' as part of the basic structure doctrine has to apply.
Thus, it is necessary to examine what exactly is the content of the basic
structure test. According to the petitioners of Ceolho case, the consequence of
the evolution of the principles of basic
structure is that laws cannot be conferred with constitutional immunity.
Assuming that such immunity can be conferred, its constitutional validity would
have to be adjudged by applying the direct impact and effect test which means
the form of an amendment is not relevant, its consequence would be
determinative factor. The power to make any law at will that transgresses Part
III in its entirety would be incompatible with the basic structure of the
Constitution. The contention is that there is no judicial review in absolute
terms and Article 31B only restricts that judicial review power. By making 24th
April 1973 as cutoff date, judiciary admits introduction of a new Chapter
called Basic Structure to the Constitution, to be a touchstone, to test the
state action and it is in the nature of an invisible amendment without
inserting any letter to the Constitution. Certainly, judiciary does not have
powers to amend the Constitution, but by propounding the Basic Structure
doctrine as touchstone to test the legislative actions and by evolving the same
from Keshavananda Bharati case to the present case and making the same as an enforceable
doctrine, the judiciary had exceeded its delineated powers.
In Shankari Prasad Singh Deo Vs. State of Bihar , Kochunni Vs. State of
Madras27
and Sajjan Singh Vs. State of Rajasthan the Supreme Court upheld the First
Amendment and further held that the law, which seeks to deprive a person of his
property must be a valid law, enacted by competent legislature and not in
consistent with any of the fundamental rights guaranteed by Part III of the
Constitution. The Supreme Court, however, noted that if the effect of the
amendment made in the Fundamental Rights on Art.226 is direct and not
incidental, different considerations may perhaps arise.
To conclude one has to see the argument that, according to one’s conception of
justice and the history and culture of a given society, there are duties,
obligations, and disadvantages that are unreasonable to ask others to accept,
is an argument that rests on conclusions of moral and political philosophy. It
demands a wide-ranging inquiry before others can be told by a court that they
are guilty of having demeaned a claimant’s dignity. The states limitation is a
positive concept in the light of the fact that the country had witnessed an
elected Prime Minister play with Art. 22.
Individual rights are matters of principle, and are to be distinguished from
the collective goals the matters of policy that would make the community as a
whole better off. Appeals to “policy” are articulations of “a standard that
sets out a goal to be reached, generally an improvement in some economic,
political, or social feature of the community”. Policies are contrasted
with “principles”, which are standards that are to be observed “because it is a
requirement of justice or fairness or some other dimension of morality.” In
short, “principles are propositions that describe rights; policies are
propositions that describe goals.”
6 References
6.1 Bibliography:
1. RamaChandran, V.G., “Fundamental Rights and Constitutional
Remedies, Vol 1” (1964)
2. Subba Rao, Koka,” Fundamental Rights Under the
Constitution of India”, University of Madras,1966,
3. Bakshi, P M, “The Constitution Of India”, Universal Law
Publication,2010
4. Gledhill, Alan,” Fundamental Rights in India”,Stevens and
Sons, 1995
5. Pandey,JN, “The Constitution Of India”, Central Law Agency
,49th Edition,2012
6. Seervai, H.M., “Constitutional law of India”, Universal
Law Publishing,4th Edition, 2006,
7. Kumar, Narender. “Fundamental Rights”. Constitutional law
of India, Allahabad law agency ,1997.96
8. Jain,M.P.”Doctrine of Eclipse” Indian Constitutional Law.
Nagpur.Wadhwa and Company,2003
9. Singhvi, L.M. Constitution of India. New Delhi: Thomas
Reuters, ed. 3rd, 2013
10. Kumar, Narinder. Constitutional Law of India. Faridabad:
Allahabad Law Agency, ed. 8th, 2013
11. De, D.J. Interpretation and Enforment of Fundamental
Rights. Kolkata: Eastern Law House, 2010
12. John Finnis, Natural Law and Natural Rights (1980)
13. Dworkin, Freedom’s Law: The Moral Reading of the American
Constitution (1996
14. Ronald Dworkin, Taking Rights Seriously (1977)
6.2 Internet Resources
Websites:
1.
http://legal-articles.deysot.com/constitutional-law/history-of-introduction-of-fundamental-rights-in-indian-constitution.html
2. http://legal-articles.deysot.com/latest/
3.
http://www.archives.gov/exhibits/charters/bill_of_rights.html
4.
http://www.facts-about-india.com/fundamental-rights-in-India.php
5.
http://legal-articles.deysot.com/constitutional-law/history-of-introduction-of-fundamental-rights-in-indian-constitution.html
6. from www.indiankanoon.org/doc/134715
7.
http://www.puncfhng.com/feature/the-law-you/fundamental-rights-enforcement-procedure-rules-and-limitation-laws/
6.3 Journals
1. Sharma, Samita. “Doctrine of Judicial Review".
http://www.preservearticles.com
2. Sakesh, Manoj. “Judicial Review in India”.
http://www.shareyouressays.com
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