Fundamental Rights: An introduction
"Every right is married to a duty, every freedom owes a corresponding responsibility"
In India an individual enjoys three different types of rights.
- Fundamental Rights
- Constitutional Rights other than Fundamental Rights
- Statutory Rights (Ordinary legal rights)
Fundamental Rights → Rights which are mentioned in the Part - III of the Constitution of India.
Other Constitutional Rights (also known as Legal Rights) → These are the rights which are also mentioned in the Constitution of India but in parts other than Part III.
- For example - Right to Vote (Article 326), Right to Property (Article 300A), Right to trade, Article 265, etc.
Statutory Rights (Other legal rights) → These rights are not mentioned in the Constitution of India but are provided by the Parliament through legislation.
- For example - Maternity benefit act, Subsidy, MGNREGA, etc.
Fundamental Rights
- Part - III
- Article - 12 to 35
Fundamental Rights in the Constitution of India is largely inspired by the Bill of Rights of American Constitution (America is the 1st Country to give constitutional status to a set of rights known as Fundamental Rights).
Fundamental Rights are rights which are essential for the healthy functioning of democracy, i.e., these rights are considered as the Cornerstone of the Indian Democracy.
List of Fundamental Rights
- Right to Equality (Article 14 to 18)
- Right to Freedom (Article 19 to 22)
- Right against Exploitation (Article 23 and 24)
- Right to Religion (Article 25 to 28)
- Cultural and Educational Rights (Article 29 and 30)
Right to Property (Article 31)- Repealed by 44th Constitutional Amendment Act 1978- Right to Constitutional Remedies (Article 32)
Fundamental Rights are called Fundamental for a number of reasons -
- They are mentioned in the fundamental law book of the country, i.e., Constitution.
- These are fundamental because these rights are the most indispensable assets with an individual to achieve his complete physical, intellectual and spiritual stature (potential) and thus help in achieving all round growth expected from an individual.
- They are also fundamental because state can't take away these rights and any law which violates Fundamental Rights is liable to be declared null and void and thus these rights becomes most important to prevent the state/government to misuse the power to become arbitrary or authoritarian and thus these rights are fundamental for a civilised and a welfaric society.
- Fundamental Rights - Restricts the Government (not to do this)
- DPSPs - Guides the Government (to do this)
Part III (Fundamental Rights) and Part IV (DPSPs) together constitute the Conscious of the Constitution or the Intellectual component of the Constitution, since both guides the state what to do and what not to do.
Difference between Ordinary legal rights and Fundamental rights
- While Ordinary legal rights are protected and enforced by the ordinary law of the land, Fundamental Rights are protected and guaranteed by the Constitution of the Country.
- Ordinary legal rights may be changed by legislature through ordinary process of law making but if Fundamental Rights are changed, the change required a difficult process of constitutional amendment involving special majority.
- In the case of violation of Fundamental Rights, the appellate can approach Supreme Court directly also whereas in case of violation of Ordinary legal right, the aggrieved person gets relief by approaching the subordinate court or High Court.
Note - Fundamental Rights are not absolute since they are subjected to reasonable restrictions and responsibilities attached with them.
Article 12 - It provides for the definition of the State for Part III.
Article 13 (1) - All the laws enforced in India immediately before the commencement of the Constitution should be unconstitutional and void if it violates one or more provisions of the Part III of the Constitution to the extent of such violation.
Doctrine of Eclipse -
- (Bhikeji Narain vs State of MP Case, 1955)
Supreme Court in Bhikeji Narayan vs State of MP Case 1955 said that a pre-constitutional law which is violating any Fundamental Right may not always be required to be declared null and void according to Article 13 (1).
If the law is important enough, it can be put under the shadow of Fundamental Right by applying the Doctrine of Eclipse on it, i.e., making the law dormant till the time an amendment to the law or Fundamental Right concerned is done in future.
This is able to remove the conflict between this law and Fundamental Right and also till that time this law can be made applicable on the people who do not enjoy the particular Fundamental Right.
- (Deepchand vs State of UP Case, 1959)
Supreme Court declared that Doctrine of Eclipse can be applied to save a pre-constitutional law but not to a post-constitutional law since a post-constitutional law is invalid ab initio (from the very beginning).
- (Ambika Mills vs State of Gujarat Case, 1974)
Supreme Court overruled its earlier decision and declared that the Doctrine of Eclipse can be used to protect not only a pre-constitutional law but also a post-constitutional law if the law is important one for the nation.
Doctrine of Severability
It states that law becomes invalid only to the extent to which it is inconsistent with the Fundamental Rights. So, only that part of the law will be declared invalid which is inconsistent and the rest of the law will stand.
Amendability of the Constitution and Fundamental Rights
Article 15 (1) - State shall not discriminate on the basis of religion, caste, race, sex, place of birth, etc.
1st Constitutional Amendment Act 1951 -
- Added Article 15 (4) - State can make/take provisions for the improvement of socially backward classes.
- Added Article 19 (6) - Restriction on vocation
- Added Schedule IX - Land reforms
This was challenged in Supreme Court in Shakari Prasad vs Union of India Case 1951.
Amendability of the Constitution of India
Under Article 13 (2), State shall not make any law that takes away or abridges one or more Fundamental Rights. However, if such a law is passed by the Parliament, then it shall be declared unconstitutional and void.
But seemingly, as against the spirit of Article 13 (2), the 1st Constitutional Amendment Act 1951 amended Part III and introduced Article 15 (4) which appeared to be going against Article 15 (1).
1st Constitutional Amendment Act also amended Article 19 (6), putting some reasonable restrictions on Right to Occupation.
It also introduced Schedule IX to the Constitution which took away the power of judicial review of the court with respect to certain law even if they go against the Fundamental Rights.
- (Shankari Prasad vs Union of India Case, 1951)
Now, the First Amendment Act was challenged before Supreme Court in Shankari Prasad vs Union of India Case, 1951. However, the judgement of the Supreme Court came in favour of the Parliament, having the power to amend any part of the Constitution including Fundamental Rights under Article 368.
Supreme Court held that the Parliament has two types of legislative powers.
- Ordinary Legislative Power (which resulted into enactment of Law)
- Constitutional Legislative Power (Since, it's a Constitutional Amendment Act, it does not fall under the category of Law)
Supreme Court explained that any enactment of the Parliament made in exercise of ordinary legislative power is called Law as defined under Article 13 (3) and this enactment would be covered under Article 13 (2).
However, when the Parliament makes use of its constitutional legislative power under Article 368, then the outcome is a Constitutional Amendment Act which is not covered in the definition of Law as given in Article 13 (3) and thus can't be nullified as per the Article 13 (2).
Thus, in Shankari Prasad Case, Supreme Court held that under Article 368, Parliament can amend any part of the Constitution including the provisions of the Part III, i.e., Fundamental Rights.
- (Golaknath vs State of Punjab Case, 1967)
However in Golaknath vs State of Punjab Case 1967, Supreme Court overruled its earlier decision and held that Article 368 contains only the procedure to amend the Constitution but it does not confer the Parliament the power to amend the Constitution under Article 368.
Thus, under Article 368, Parliament can't amend any part of the Constitution including Fundamental Rights.
However, Parliament responded by bringing 24th Constitutional Amendment Act 1971 which amended the very title of the Article 368 and added the word Power and now the Article 368 read as 'THE PROCEDURE AND POWER TO AMEND THE CONSTITUTION'.
Note - Article 368 had been amended three times.
- 7th Constitutional Amendment Act, 1955
- 24th Constitutional Amendment Act, 1971
- 42nd Constitutional Amendment Act, 1976
- (Kesavananda Bharti vs State of Kerala, 1973)
In Keshavananda Bharti Case, the 24th Constitutional Act and other things was challenged before Supreme Court and the court upheld the Constitutional validity of the 24th Constitutional Amendment Act and said that the Parliament by virtue of Article 368 can amend any part of the Constitution including Fundamental Rights however no amendment should be done in the Constitution which disturbs the Basic Structure of the Indian Constitution.
However, Supreme Court did not define what the basic structure was. However in a number of judgement Supreme Court has clarified what all elements in the Indian Constitution forms basic structure of Indian Constitution.
Basic Structure of the Indian Constitution is the combination of those elements of the Indian Constitution without which the Indian Constitution may lose its basic character/nature.
Note - Any Article does not form the Basic Structure but the spirit or idea behind it forms the basic structure.
The principles that are presently part of the basic structure of the Indian Constitution are as follows -
- Sovereignty
- Essential features of individual freedoms secured to the citizen
- Mandate to build a welfare state
- Supremacy of the Constitution
- Republican and Democratic form of the government
- Secular and Federal character
- Separation of powers
- Unity and integrity of nation
- Judicial review
- Harmony and balance between Fundamental rights and DPSPs
- Parliamentary system
- Rule of Law
- Principle of Equality
- Free and fair election
- Independence of judiciary
- Limited power of the Parliament to amend the Constitution
- Effective access to justice
- Principles (essence) underlying the Fundamental Rights
- Powers of Supreme Court under the following Articles
- Article 32 - Writ jurisdiction of the Supreme Court
- Article 136 - Special leave to appeal
- Article 141 - Laws of Supreme Court binding on all the courts
- Article 142 - Power of Supreme Court to do Complete justice
- Powers of High Court under the following Articles
- Article 226 - Writ jurisdiction of the High Court
- Article 227 - High Court superintendence over Sub-ordinate Courts
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Next Article - Fundamental Right (Right to Equality)
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Note - This is my Vision IAS Notes (Vision IAS Class Notes) and Ashutosh Pandey Sir's Public Administration Class notes. I've also added some of the information on my own.
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