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Fundamental Rights Part 1 And Concept Of State And Judicial Review

What are Fundamental Rights? | Fundamental Rights Part 1 And Concept Of State And Judicial Review

  • Fundamental rights are the basic human rights enshrined in the Constitution of India which are guaranteed to all citizens.
  • They are applied without discrimination on the basis of race, religion, gender, etc. Significantly, fundamental rights are enforceable by the courts, subject to certain conditions.

Why are they called Fundamental Rights?

  • These rights are called fundamental rights because of two reasons:
  • They are enshrined in the Constitution which guarantees them
  • They are justiciable (enforceable by courts). In case of a violation, a person can approach a court of law.

List of Fundamental Rights

There are six fundamental rights of Indian constitution along with the constitutional articles related to them are mentioned below:

  1. Right to Equality (Article 14-18)
  2. Right to Freedom (Article 19-22)
  3. Right against Exploitation (Article 23-24)
  4. Right to Freedom of Religion (Article 25-28)
  5. Cultural and Educational Rights (Article 29-30)
  6. Right to Constitutional Remedies (Article 32)

Why Right to Property is not a Fundamental Right?

  • There was one more fundamental right in the Constitution, i.e., the right to property.
  • However, this right was deleted from the list of fundamental rights by the 44th Constitutional Amendment.
  • This was because this right proved to be a hindrance towards attaining the goal of socialism and redistributing wealth (property) equitably among the people.
  • The right to property is now a legal right and not a fundamental right.

Features of Fundamental Rights

  • Fundamental rights are different from ordinary legal rights in the manner in which they are enforced. If a legal right is violated, the aggrieved person cannot directly approach the SC bypassing the lower courts. He or she should first approach the lower courts.
  • Some of the fundamental rights are available to all citizens while the rest are for all persons (citizens and foreigners).
  • Fundamental rights are not absolute rights. They have reasonable restrictions which means they are subject to the conditions of state security, public morality and decency and friendly relations with foreign countries.  ( Fundamental Rights Part 1 And Concept Of State And Judicial Review)
  • They are justiciable, implying they are enforceable by courts. People can approach the SC directly in case of violation of fundamental rights.
  • Fundamental rights can be amended by the Parliament by a constitutional amendment but only if the amendment does not alter the basic structure of the Constitution.
  • Fundamental rights can be suspended during a national emergency. But, the rights guaranteed under Articles 20 and 21 cannot be suspended.
  • The application of fundamental rights can be restricted in an area which has been placed under martial law or military rule.

Fundamental Rights Available Only to Citizens

  • The following is the list of fundamental rights that are available only to citizens (and not to foreigners):
    • Prohibition of discrimination on grounds of race, religion, caste, gender or place of birth (Article 15).
    • Equality of opportunity in matters of public employment (Article 16).
    • Protection of freedom of (Article 19)
    • Speech and expression
    • Association
    • Assembly
    • Movement
    • Residence
    • Profession
    • Protection of the culture, language and script of minorities (Article 29).
    • Right of minorities to establish and administer educational institutions (Article 30).

Importance of Fundamental Rights

  • Fundamental rights are very important because they are like the backbone of the country. They are essential for safeguarding the people’s interests.
  • According to Article 13, all laws that are violative of fundamental rights shall be void. Here, there is an express provision for judicial review. The SC and the High Courts can declare any law unconstitutional on the grounds that it is violative of the fundamental rights. Article 13 talks about not just laws, but also ordinances, orders, regulations, notifications, etc.

Amendability of Fundamental Rights

  • Any changes to the fundamental rights require a constitutional amendment that should be passed by both the Houses of Parliament. The amendment bill should be passed by a special majority of Parliament.   ( Fundamental Rights Part 1 And Concept Of State And Judicial Review)
  • As per the Constitution, Article 13(2) states that no laws can be made that take away fundamental rights.
  • The question is whether a constitutional amendment act can be termed law or not.
  • In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament can amend any part of the Constitution including fundamental rights.
  • But in 1967, the SC reversed its stance taken earlier when in the verdict of the Golaknath case, it said that the fundamental rights cannot be amended.
  • In 1973, a landmark judgement ensued in the Kesavananda Bharati case, where the SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.”
  • This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
  • In 1981, the Supreme Court reiterated the Basic Structure doctrine.
  • It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.

Six Fundamental Rights (Articles 12 to 35)

  • Right to Equality (Articles 14 – 18)
    • Right to equality guarantees equal rights for everyone irrespective of religion, gender, caste, race or place of birth.
    • It ensures equal employment opportunities in the government and insures against discrimination by the State in matters of employment on the basis of caste, religion, etc.
    • This right also includes the abolition of titles as well as untouchability.
  • Right to Freedom (Articles 19 – 22)
    • Freedom is one of the most important ideals cherished by any democratic society. The Indian Constitution guarantees the freedom to citizens. The freedom right includes many rights such as:
      • Freedom of speech
      • Freedom of expression
      • Freedom of assembly without arms
      • Freedom of association
      • Freedom to practise any profession
      • Freedom to reside in any part of the country
    • Some of these rights are subject to certain conditions of state security, public morality and decency and friendly relations with foreign countries. This means that the State has the right to impose reasonable restrictions on them.
  • Right against Exploitation (Articles 23 – 24)
    • This right implies the prohibition of traffic in human beings, begar, and other forms of forced labour. It also implies the prohibition of children in factories, etc. The Constitution prohibits the employment of children under 14 years in hazardous conditions.
  • Right to Freedom of Religion (Articles 25 – 28)
    • This indicates the secular nature of Indian polity. There is equal respect given to all religions. There is freedom of conscience, profession, practice and propagation of religion. The State has no official religion. Every person has the right to freely practice his or her faith, establish and maintain religious and charitable institutions.
  • Cultural and Educational Rights (Articles 29 – 30)
    • These rights protect the rights of religious, cultural and linguistic minorities, by facilitating them to preserve their heritage and culture. Educational rights are for ensuring education for everyone without any discrimination.   ( Fundamental Rights Part 1 And Concept Of State And Judicial Review)
  • Right to Constitutional Remedies (32 – 35)
    • The Constitution guarantees remedies if citizens’ fundamental rights are violated. The government cannot infringe upon or curb anyone’s rights. When these rights are violated, the aggrieved party can approach the courts. Citizens can even go directly to the Supreme Court which can issue writs for enforcing fundamental rights.

Article 12 of the Constitution of India

  • Article 12 is the first Article in Part III of the Constitution of India. It states that:
    • “Definition 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.”
  • Article 12 gives an extended significance to the term ‘state’. Art 12 clarifies that the term ‘state’ occurring in Art 13(2), or any other provision concerning Fundamental Rights, has an expansive meaning.
  • According to Art. 12, the term ‘state’ includes –
    • The Government and Parliament of India;
    • The Government and the Legislature of a State;
    • All local authorities; and
    • Other authorities within the territory of India, or under the control of the Central Government.
  • It has been pointed out at the outset that the device of guaranteeing fundamental rights by a Bill of Rights in a written Constitution was to protect the individual from governmental aggression and not from aggression by another individual, for which remedies under ordinary law were sufficient. It was to bind the state itself, the makers of laws, that fundamental rights have their origin.

Definition of State : (Article – 12)

  • It includes Government and Parliament of India, that is, executive and legislative organs of the Union Government.
  • Government and legislature of states, that is, executive and legislative organs of state government.
  • All local authorities, that is, municipalities, panchayats, district boards, improvement trust etc. All other authorities, that is, statutory or non-statutory authorities like LIC, BHEL, SAIL, GAIL etc. or even a private body or an agency working as an instrument of the State.
  • It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.

Definition of Authority

  • Literally ‘authority’ means a ‘person’ or a ‘body’ exercising power, or having a legal right to command and be obeyed.
  • In Art. 12 “State” has not been defined. It is merely an inclusive definition. It includes all the authorities within the territory of India or under the control of the Government of India. The word “or” is disjunction and not conjunctive. The expression “authority” has a definite connotation. It has different dimensions and, thus, must receive a liberal interpretation.
  • The term is wide enough to include all bodies created by the statute on which powers are conferred to carry out governmental or quasi- governmental functions. The word ‘authority’ includes Central and State government.  ( Fundamental Rights Part 1 And Concept Of State And Judicial Review)
  • The word ‘State’ and ‘Authority’ used in Art. 12 remain among “the great generalities of the Constitution” the concept of which has been and continues to be applied by Courts from time to time. It thus includes all constitutional and statutory authorities on whom powers are conferred by law, including even autonomous bodies,  and whether or not they are under the control of the Government or whether or not they may be regarded as agents or delegates of the government.
  • Definition of Local authorities:- The expression “local authorities’ refers to authorities like municipalities, district boards, panchayats, improvement trusts, port trusts, mining settlement boards, etc., Rashid Ahmed v. M.B. Kairana, is one of the earliest instances where a municipal board was held to be a local authority under Article 12.

Judiciary Is Also Subject To Fundamental Rights

  • Article 12 does not expressly exclude the judiciary, and though Art. 12 does not expressly include judiciary, it is submitted that the judiciary, with the legislature and the executive, is included in the ordinary meaning of ‘State’ as one of the three main departments of a State; and that the ordinary meaning is not outside the inclusive definition of the ‘State’ given in Art. 12.
  • The courts, like any other organ of the State, are limited by the mandatory provisions of the Constitution and they can hardly be allowed to override the fundamental rights under the shield that they have within there jurisdiction, the right to make an erroneous decision. The jurisdiction of a Court is limited by the Constitution; it cannot, therefore, have the jurisdiction to decide contrary to the provisions of the Constitution. Where a decision contravenes a fundamental right, it is not a case of mere wrong decision. A decision overriding a constitutional limitation is without jurisdiction and a nullity.
  • Recently Supreme Court held that it has power under Art. 136 or under Art. 32 of the Constitution that if on satisfaction that an earlier judgment has deprived a person of his fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.

Article 13 of the Constitution of India

  • Article 13 of the Indian Constitution States that:
  • “Laws inconsistent with or in derogation of the fundamental rights
    • All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
    • 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 clause shall, to the extent of the contravention, be void . ( Fundamental Rights Part 1 And Concept Of State And Judicial Review)
    • In this article, unless the context otherwise requires law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
    • Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality.”
  • Article 13 is the key provision as it gives the teeth to the fundamental rights and makes them justiciable. The effect of Article 13 is that Fundamental Rights cannot be infringed by the government either by enacting a law or through administrative action.

Definition of Law

  • 13(3)(a) defines ‘law’ very widely by an inclusive definition. It does not expressly include a law enacted by the legislature, for such an enactment is obviously law. The definition of law includes:
    • An Ordinance, because it is made in the exercise of the legislative powers of the executive;
    • An order, bye-law, rule, regulation and notification having the force of law because ordinarily they fall in the category of subordinate delegated legislation and are not enacted by the legislature;
    • Custom or usage having the force of law because they are not enacted law at all. This extended definition appears to have been given to ‘law’ in order to forestall a possible contention that law can only mean law enacted by the legislature.

Applicability of Article 13 to law for amendment of Constitution

  • Clause (4) was inserted by the Constitution (24th Amendment) Act, 1971, with effect from 5-11-1971, to override the view taken by Subha Rao, C.J., for the majority, in Golak Nath v. State of Punjab, that a Constitution Amendment Act, passed according to Art. 368, is a ‘law’ within the meaning of Art. 13 and would, accordingly, be void if it contravenes a fundamental right. This amendment was declared void in Minerva Mill’s Case

Judicial Review

  • Judicial review is defined as the doctrine under which executive and legislative actions are reviewed by the judiciary. Even though we have in India the principle of separation of powers of the three arms of the State, namely, the executive, the legislative and the judiciary, the judiciary is vested with the power of review over actions of the other two arms.
  • Judicial review is considered a basic structure of the constitution (Indira Gandhi vs Raj Narain Case).
  • Judicial review is the power of the courts to consider the constitutionality of acts of organs of Government and declare it unconstitutional if it violates or is inconsistent with the basic principles of the Constitution.
  • This means that the power of the legislature to make laws is not absolute and that the validity and constitutionality of such laws are subject to review by the courts.
  • Judicial review is also called the interpretational and observer roles of the Indian judiciary.
  • Suo Moto cases and the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even when there is no complaint from the aggrieved party.

Judicial Review Classification

We can classify judicial review into three categories. They are:

  • Reviews of Legislative Actions: This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.
  • Review of Administrative Actions: This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.
  • Review of Judicial Decisions: This is seen in the Golaknath case, bank nationalisation case, Minerva Mills case, privy purse abolition case, etc.

Limitations of Judicial Review 

  • There are some limitations on the judiciary on exercising its power of judicial review. In fact, when the judiciary crosses its threshold and interferes in the executive’s mandate, it can be called judicial activism, which when furthered can lead to judicial overreach. Some of the limitations of judicial review are mentioned below.
  • It is designated only to the higher courts like the Supreme Court and the High Courts.
  • It is only permissible to the extent of finding if the procedure in reaching the decision has been correctly followed but not the decision itself.
  • The judiciary cannot interfere in political questions and policy matters unless absolutely necessary.

Writs

This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law –

  • Habeas Corpus – to direct the release of a person detained unlawfully.
  • Mandamus – to direct a public authority to do its duty.
  • Quo Warranto – to direct a person to vacate an office assumed wrongfully.
  • Prohibition – to prohibit a lower court from proceeding on a case.
  • Certiorari – power of the higher court to remove a proceeding from a lower court and bring it before itself.

 

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