Wednesday, 31 May 2017

Fundamental Rights as a limitation to state powers


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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