This article is written by Mariya Paliwala of seventh semester, student at MohanLal Sukhadiya University College of Law, Udaipur, Rajasthan. This article throws light on Constitution of India with special emphasis on Part III specifically Article 12 and 13.
Like many other concepts and ideas, the concept of fundamental rights is borrowed from the west. Relating this idea of fundamental rights in this era of human rights the two basis to his theory are reflected in our India liberal constitutionalism. Firstly, it imposes a negative obligation on the state, not to intervene/ interfere in the liberty of the individual. Secondly, it imposes positive obligations on the state to undertake all the possible steps to make this State as a welfare state.
When we see both of these basis through the lenses of liberal tradition of constitutionalism the former is easily accepted whereas the latter is accepted but with some resistance. The concept of Fundamental rights are conceived in Part III of the constitution.
Unlike the other legal rights which are created by the state that confers the right upon the individuals against one another, however the fundamental rights can be claimed only against the state. Therefore, whether the constitution is silent or vocal about it, generally it is assumed that fundamental rights are available only against the state which includes the actions of the state and against the officials of the state. For this very reason, the constitution of U.S.A, which is 1st amongst the modern written constitution to provide the fundamental rights are actionable only against the state irrespective of the fact that the constitution does not say it. Similarly, the same concept is applied on the fundamental rights under India Constitution also, though some are expressly applied to non state action and some others not expressly confined to state action.
Article 12: Meaning of ‘the State’
The term ‘state’ specifies the authorities and all the instrumentalities which are functioning within or outside the territory of India and those institutions will be considered to be ‘the state’ under Part III of the constitution. This definition is not exhaustive but inclusive. The authorities and instrumentalities which are included in Article 12 are:
- The government and Parliament of India (Lok Sabha and Rajya Sabha).
- The state government and the legislature of each state (Vidhan Sabha and Vidhan Parishad).
- All local authorities (municipalities, District Boards, Panchayats, Improvement Trust, Port Trust, Mining Settlement Boards etc.
- Other authorities within the territory of India or under the control of government of India.
The first 3 categories can be easily understood as they are quite specific and self-explanatory. The last category is not specific and require some explanation.
Apart from the central, state and local authorities, the authority or institutions which exercise governmental or sovereign powers or functions can be counted under ‘other authorities’.
Electricity Board, Rajasthan SEB v. Mohan Lal
This case is also known as Rajasthan Electricity case. It was held in this case that all the authorities which are created by the constitution or any other statute on whom powers are conferred by law irrespective of the fact that statutory authority is not engaged in performing governmental or sovereign functions. Further, it was also stated that ‘other authorities’ would also cover the bodies created for the purpose of promoting educational and economic interests of the weaker sections of people. However, it was overrule the earlier decision in the case of University of Madras v. Shantha Bai that Universities are excluded from the meaning of Article 12. Accordingly the university was later held to be ‘the state’ under Article 12.
State outside Article 12
In the definition of ‘the state’, the judiciary has time and again affirmed that what is ‘the state’. For the purpose of wider application of fundamental rights state must be defined liberally, but not for other purposes. Therefore, an employee of the public corporation may challenge the violation of his fundamental by the corporation but for that reason he does not become a state employee and cannot seek the protection, for instance Article 311.
Economic liberalisation and fundamental rights
With the globalisation of the world economy and economic liberalisation in India, some people are doubtful about the application and efficacy of the fundamental rights. There are 2 reasons for this doubt, which is as follows:
- With the increasing role of private enterprise and the decreasing role of the state, the fundamental rights will be violated more by private enterprise than the state.
- The private enterprise itself will claim the fundamental rights as legal person such as a corporation, including a municipal corporation.
However, it may be hoped that evolving universal expansion of human rights will ensure suitable efficacy to and enforcement of the fundamental rights in the changing scenario. The constitution in general sense and fundamental rights in particular are capable of meeting the challenge in society.
Article 13: Laws in derogation with fundamental rights will be void
Article 13 expressly sets the principle of the supremacy of fundamental rights over any other law in the case of inconsistency between the two. This can easily interpret the intention of the constitution makers to confine the application of fundamental rights to what is stated in this Article. For instance, pre-constitutional laws shall be invalid only to the extent they fall within the category of “law in force”. As uncodified personal laws do not fall within the category, it could be urged that they were not intended to become invalid in the ground of any inconsistency with the fundamental rights.
The Clause 1 of Article 13 give rise to various doctrines of interpretation which are as follows:
No retrospective Effect
The provisions of the constitution pertaining to fundamental rights have no retrospective effect. The word retrospective means that intending to take effect from the past date. All the existing laws which are inconsistent, they will be void after the commencement of the constitution.
Illustration: ‘A’ has committed an offence in 1946 which was punishable at that time, but later on after the commencement of the constitution in 1949 that offence was abolished as it was inconsistent with the fundamental rights. On this basis ‘A’ contended that he must be freed from the charges but the court did not allow it on the grounds that in 1946 the act committed by him was an offence.
Rule of Severability
Article 13 does not make entire Act or statute to be void or inoperative rather it makes inoperative such provisions which are inconsistent with the fundamental rights.
Illustration: Eight section of ‘XYZ’ Act were held ultra vires on the grounds that they infringed the fundamental rights of the citizen. However, the Act minus those eight provisions was allowed by the court to stand.
Doctrine of eclipse
The existing law which is inconsistent with the fundamental right, though becomes inoperative at the time of the commencement of the constitution, is not dead altogether. In simple words the laws are overshadowed by the fundamental rights and remain dormant, but is not dead. The doctrine of eclipse which at one point of time was applicable only to pre constitutional laws but is now applicable on the post-constitutional laws also.
Clause (2) of Article 13 of the constitutions elaborates on the future laws i.e. the laws made after the commencement of the constitution. The state is prohibited from making law which takes away or abridged any right conferred by Part III of the constitution. A law made in contravention of clause (2) shall to the extent of the contravention will be void. This concept of void has eventually come to be considered as ‘relatively void’ or partially invalid.
Sometimes the courts also apply their decisions prospectively. It means that though the law was found against the fundamental rights, they invalidate only for the future. Therefore the law is not declared void ab initio or nullity from the very beginning.
Test of infringement of fundamental rights
In the Bank Nationalisation case the court was of the view that the theory that the object and form of the state action determines the extent of the protection which the aggrieved party may claim, was not consistent with the constitutional scheme which aims at affording the individual the fullest protection of his basic rights. The state action must therefore be judged in the light of its operation upon the rights of the individual and the group of individuals in all its dimensions.
Under the constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of rights, the interest of the aggrieved party and the degree of harm resulting from the state action.
However, the precedents does not clearly states when the effect of state action is direct and when it is indirect. Simply, the directness of the effect has to be judged with reference to the protected right or activity. If state action prohibits or restricts any activity which is not a fundamental right, then any effect on the fundamental right is indirect.
Waiver of Fundamental Rights
To address the question of whether fundamental rights can be waived by a person who has it. In the case of Basheshar Nath v. CIT the fact of the case are that the petitioner has concealed large amount of his income. In order to escape from his liability the petitioner agreed to the settlement under Section 8-A to pay Rs. 3 lakhs in monthly instalments by way of arrears of tax and penalties. On the basis of Income Tax rules being ultra vires to the constitution thereby violative of Article 14 he is not supposed to pay the tax. It was held that right under Article 14 can not be waived. Since then the law has been settled that the fundamental rights can not be waived.
Definition of Law
Clause (3) of Article 13 consist of the word ‘law’ and ‘law in force’. The law can be of the following kinds:
- Statutory Law: These are the laws which may be directly enacted by the legislature or by the other subordinate authorities under the delegated lawmaker powers. The delegated legislations appears under various names – rules, regulations, notifications, and bye-laws.
- Customs: The term ‘law’ includes ‘customs’ and ‘usages’. In early times, custom was the main source of law but now to a large extent, it has been suspended by statutory law. However, custom has not wholly lost its law creating efficacy. A reasonable and certain ancient custom is binding on the courts like an Act of legislature.
In Shankari Prasad Singh Deo v. Union of India the Constitutional (1st Amendment) Act, 1951, which amended the fundamental rights guaranteed under the constitution, which was challenged on the ground that since the amendment has the effect of abridging the fundamental rights it was not valid law within the meaning of clause (2) of Article 13. The contention was rejected by the apex court and held that the word ‘law’ in clause (2) did not include a law made by the Parliament under Article 368 amending the constitution. It was said that the word ‘law’ means the “the rules and regulations enacted by legislatures” and not the “constitutional amendments made in exercise of constituent powers.” Therefore, this judgement was followed by majority of judgements such as in Sajjan Singh v. State of Rajasthan. However, in the case of Golak Nath v. State of Punjab, the apex court by 6:5 majority held that the word ‘law’ in Article 13 (2) included the amendment of the constitution and as a consequence, if an amendment abridged or took away fundamental rights guaranteed under Part III of the Constitution of India, the amending Act itself will become void and ultra vires. Subsequently, in the case of Kesavananda Bharati v. State of Kerala, the Supreme Court of India overruled the Golak Nath case and unanimously held that the Constitution (24th amendment) Act, 1971, which inserted clause (4) in Article 13 and clause (3) in Article 368 was valid. Therefore, all the judges agreed that the amended Article 368, all the provisions including those enshrining fundamental rights (Part III) could be amended.
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