This article is written by Shubhangi Upmanya and Gautam Badlani. This article examines the provisions and judicial decisions relating to Article 13 of the Indian Constitution. The article highlights the scope of Article 13 and critically analyses whether personal laws and customs are included within the ambit of Article 13.
This article has been published by Sneha Mahawar.
Table of Contents
‘People believe in law’ and to keep that belief the Drafting committee gave the concept of Fundamental Rights in Part III of the Indian constitution. It gives liberty to the citizens of India and protects it from being infringed by the state. It also provides for the remedy if their fundamental right is violated.
And to keep the belief of people in the State, Articles 12 and 13 were introduced. Article 12 gives the definition of state and tells about the responsibility the state has towards people and their fundamental rights whereas Article 13 of the Indian constitution which presents itself in four parts, makes the concept of fundamental rights more powerful and gives it a real effect.
This article protects the individual’s fundamental rights by rendering any law null and void if it intervenes with liberty or is inconsistent in any way with the fundamental right of the person.
Origin and development of Fundamental Rights
The salient features of the Indian constitution are recognizable and unique from other constitutions even though it has borrowed some second-to-none features of some of the other constitutions of the world that is the constitution of India is not a paper or a scissor work but the beat of a different drum.
Amongst all the borrowed features, the idea of fundamental rights was taken from the constitution of the United States. The drafting committee gave the concept of Fundamental Rights in Part III of the constitution which originated by the inspiration from England’s Bill of rights, United States Bill of rights, the development of the Irish constitution and France’s declaration of the rights of man.
To know more about Article 13 of the Indian Constitution in brief, please refer to the video below:
The Indian National Congress in Bombay in 1918 suggested a declaration be included in the Government of India Act which contains the rights of people as British citizens. Nehru committee also emphasized on having fundamental rights guaranteed so that it cannot be pulled out under any circumstances, which was refused. The Indian National Congress in its Karachi session again brought up the matter of a written guarantee of fundamental rights which was again refused by the joint select committee of the British Parliament. Finally, the constituent assembly adopted the Objective Resolution on January 22, 1947, and pledged to guarantee and secure the fundamental rights of the people.
Characteristics of Fundamental Rights
The fundamental rights enshrined in the Constitution have the following characteristics:
- The fundamental rights are justiciable. If any agency or organ of the government violates the fundamental rights of an individual, then the individual can approach the judiciary for the enforcement of his rights. The Supreme Court, under Article 32, and the High Courts, under Article 226, have the power to issue writs for the enforcement of fundamental rights.
- The fundamental rights can be amended, suspended or curtailed by the Parliament. When the President declares an emergency, all fundamental rights, except Articles 20 and 21 are suspended. The Parliament, by exercising its powers under Article 368 of the Constitution, can amend the fundamental rights through a special two-thirds majority.
- The fundamental rights are not absolute in nature and are subject to reasonable restrictions. Fundamental rights can be subjected to restrictions in relation to the sovereignty and integrity of the country, public order, public health, social harmony, etc.
- Most of the fundamental rights guaranteed under the Indian Constitution are social and political in nature.
Personal laws and Article 13
There have been several cases in which the judiciary has deliberated upon the issue of personal laws being covered by Article 13. The first landmark case in this regard was the Narasu Appa Mali case.
State Of Bombay vs Narasu Appa Mali
The Bombay High Court in the landmark case of State Of Bombay vs Narasu Appa Mali (1951), held that personal laws are not covered within the ambit of the expression “laws” and “laws in force” contained in Article 13. In this case, the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, which prohibits bigamous marriages amongst Hindus, was challenged.
The petitioners contended that the whole bigamy is an offence under the Indian Penal Code, the Hindu Bigamous Marriages Act imposes a greater punishment on the abettors as compared to the Penal Code. The petitioners contended that the State cannot impose greater punishment on members of one community when the other communities are also prohibited from performing the same offense. The petitioners pleaded that the expression “laws in force” under Article 13 should be interpreted to include personal laws and thus, all personal laws which permit polygamy could be declared void.
The two-judge bench held that personal laws fall outside the ambit of Article 13. The Bench was of the view that the expression “laws in force” only refers to statutory laws.
The judges also relied on the Government of India Act, 1915. The Court referred to Section 113 of the Government of India Act, 1915 which provides that in case of inheritance, succession and other similar matters, when both parties are followers of the same personal laws, the High Court should apply the same in deciding the matter and when the parties follow different personal laws, the High Court should apply the defendant’s personal laws. Thus, the Government of India Act recognised a clear distinction between personal laws, statutory laws and customs. The fact that the Constituent Assembly included customs and usages in Article 13 but omitted personal laws is a clear indication that the dreamers of the Constitution did not want personal laws to be covered by Article 13.
The two judges, however, differed on the issue of whether customs and usages are covered within the scope of Article 13. Justice Gajendragadkar noted that if Article 13 is interpreted to cover the customs and usages, then it would render Article 17 obsolete as the evil of untouchability, which has its origin in customs, would be void under Article 13 read with Article 15 of the Constitution. Thus, Article 17, which prohibits untouchability would be meaningless. Chief Justice Chagla, on the other hand, held that customs and usages are covered within the scope of Article 13 and hence, if any custom violates the fundamental rights then it would be declared void.
Indian Young Lawyers Association vs The State Of Kerala
However, the Narasu Appa Mali judgment was overruled by Justice Chandrachud in the Indian Young Lawyers Association v. the State Of Kerala (2018). In this case, the custom of not allowing women into the Sabarimala temple was challenged before the Apex Court and the question arose whether customs come within the ambit of Article 13.
Justice Chandrachud noted that the definition of “law” under Article 13 is an inclusive definition. The Court observed that the Articles of the Constitution are not essentially independent of each other and in some instances, there may be overlapping with the Articles. Thus, merely because the inclusion of customs within Article 13 would affect Article 17, it could not be held that customs are not covered within the expression “laws in force”. The Court also referred to the judgment of Shayara Bano v. Union Of India (2017) in which the Apex court had expressed doubt over the Narasu Appa judgment. The Court pointed out that personal laws, customs and usages have a significant impact on the civil life of individuals. Hence, customs and personal laws cannot be exempted from the preview of judicial scrutiny. The Court thus came to the conclusion that customs are covered by Article 13 and can be subjected to judicial review.
Retrospective effect of Article 13
In the landmark case of Keshavan Madhava Menon v. the State Of Bombay (1951), the issue that came before the 7-judge bench of the Apex Court was whether laws found abridging the fundamental rights under Article 13 would be void ab initio or void with prospective effect. The Supreme Court supported the latter concept and held that the laws would be void and ineffectual prospectively. Those who committed an offense under a law infringing the fundamental rights before the law was declared void would not be protected. However, the Court noted that where a person committed an offence under a law that was effective at the time of offence but was subsequently found to be violative of the fundamental right and where the prosecution has not been concluded, the proceedings under the void law cannot be continued. Thus, if at any time when the question is raised before the Court whether the person committed an offense under the concerned law or not, it is found that the law has been declared void under Article 13, the person cannot be prosecuted under the concerned law.
Applicability of Article 13 to Constitutional Amendments
One of the most contentious issues in relation to Article 13 has been whether Constitutional amendments are covered within the expression “law” as used in Article 13.
The Supreme Court firstly decided this issue in the case of Shankari Prasad Singh Deo v. Union of India (1951). In this case, the Constitution (1st Amendment) Act, 1951 was challenged as being violative of fundamental rights and thus void under Article 13 of the Constitution. However, the Apex Court held that the constitutional amendments made by the Parliament under Article 368 of the Constitution cannot be subjected to review under Article 13.
However, the Court took a different stand in the case of I.C. Golak Nath v. State of Punjab (1967). In this case, the court held that constitutional amendments fall within the scope of Article 13 and can be declared void if found violating the fundamental rights enshrined in Part III of the Constitution. The Golak Nath judgment was subsequently overruled in the case of Kesavananda Bharati v. State of Kerala where the Supreme Court upheld the validity of the 24th Amendment Act and held that any fundamental right can be amended by the Parliament but the basic structure of the Constitution cannot be altered.
Need for Fundamental Rights
A country provides its citizens with some rights which add to their growth and development and enables them to live a life of utmost dignity. Amongst these rights, there are some rights of fundamental nature.
The term ‘Fundamental’ is used as these rights are the most essential of all rights without which the survival of an individual is not possible. Fundamental rights embody the spirit to secure the dignity and liberty of the individual and protect it from any invasion of the state.
In case of infringement of the fundamental right, the individual can directly approach the Supreme Court. It ensures that the law governs the government and the people and there is no dictator rule.
Judicial trends in interpreting provisions of Part III
The constitution safeguards the rights of the people from any exploitation by the government or any other authority of the government.
The constitution through Article 21 which is-’right to life and personal liberty’ ensures liberty as freedom of speech and expression(Article 19), to follow one’s religion and belief, etc.
AK Gopalan V. State of Madras
This case challenged the constitutional validity of the Preventive Detention Act of 1950 and raised questions related to personal liberty. It was ruled out that the constitution has not provided for nullifying any act of the competent authority which violates the principles of natural justice and there is no safeguard against it.
ADM Jabalpur V. Shivkant Shukla
The famous habeas corpus case introduced amendments in article 359 by the 44th amendment which prohibited the suspension of articles 20 and 21 even during an emergency. It was done after it was realized that the officials went beyond the ambit of their power while misusing the preventive detention Act.
Widest interpretation of provisions of Part III
The question that whether the judiciary falls in the ambit of ‘the state’ mentioned in Article 12 or not arises while interpreting the provision of part III of the constitution and if not then it allows the judiciary to violate the provision contained in the part. If we have a look at Article 13(2) the word ‘the state’ may include the Judiciary in its ambit and also talking about the writ of certiorari, the provision to enforce which is a fundamental right is exercised by the courts itself.
Maneka Gandhi’s case has given the provision of part III a much wider interpretation.
Maneka Gandhi v. Union of India, AIR 1987 SC 597
In this case, under section 10(3)(c) of the passport Act, Maneka Gandhi’ s passport was seized. A writ was issued as it was violative of Article 21. Maneka Gandhi was also not given the right to make her defense which rendered the order null and void. It was ruled out that articles 14,19 and 21 are not mutually exclusive but while considering one, the other two have to be taken into account.
Natural Justice and Due Process
The term ‘principle of natural justice’ though nowhere to be found in the constitution, holds immense importance in the functioning of the legal system. It ensures the safeguarding of an individual’s basic rights and ensures that they live their life with dignity. This was not included afterward but was there since the beginning and makes the ground of justice natural.
There are three types of natural justice:-
Audi Alteram Partem
The right to be heard is a natural principle that must be followed for thriving for fairness in the judgment. Every person should be allowed to present his defense which was also the judgment in the case Maneka Gandhi v. Union of India, where she was deprived of her right to be heard.
Nemo debet esse in propia causa
No one ought to be the judge in his or her case, says this principle. It sets a procedure for a fair hearing based on the proposition that justice should not only be done but should seem to be done. In J. Mohapatra & Co And Another vs State Of Orissa And .. as one of the judges of the selection committee for the selection of the books, was the author of a book. Here the rule of bias was applied.
When a decision is given by a judicial body it is necessary for it to give reason along with the decision stating all the consequences which led to that decision. With this principle, the judiciary can no longer take arbitrary decisions and act fairly.
With the introduction of due process, the principle of natural justice was enhanced. This law makes sure that the person enjoys his liberty and live a life of dignity and is not deprived of his property. This is of two types:-
Procedural due process
When a person is been convicted and there is a possibility to deprive him of his life or property or liberty but in that case, the individual should understand the process as to why he has to go through this. It is important to give him a notice stating was wrong he has committed for which he is being convicted, a reasonable time should be given to him to make his defense and the proceedings should be made to be understood by him.
Substantive due process
It prohibits the judiciary to punish an individual for any wrong that affects fundamental right until and unless there is an obligation on the part of the judiciary to do so which should be communicated. The right included in this is freedom of speech and expression, freedom of assembly, freedom of religion.
Prisoners’ Rights and Prison Reforms
Prisoners after being sentenced to jail still remain the people to whom the government should provide justice. The prison is being the centre of injustice devoiding the prisoners from the custodial provisions and transparency in the system. With a poor prison environment, unhygienic conditions, improper representation, being in the waitlist for pending trials, these prisoners suffer a lot and become mentally ill and more vulnerable than before. Many of them are juveniles who are yet to be proven guilty. Most of them are poor who can’t afford good representation.
It is important to improve the prison condition and provide legal aid services and ensure the proper functioning of the prison mechanism.
Expanding Role of the writ of Habeas Corpus
The habeas corpus writ is one of the most ancient constitutional remedies. This obligates the appearance of the person in custody in the court during the proceedings. This is acquired in a case to release the person after bail or to provide relief to people in a case where he is wrongfully detained.
This writ was introduced in the United Nation’s constitution after the British colonies won the independence battle. This writ can be filed in the Supreme court and also in the High court under Articles 32 and 226 of the Indian constitution respectively.
Initially, this writ was just an instant remedy for the detention which has just happened and not for the past detention. But now, this writ has been expanded by the Supreme court for the detention that has happened in the past and also where someone is deprived of his life. It was very narrow in the beginning but now it extends to every injustice done against any type of liberty.
Sunil Batra’s case
Sunil Batra was convicted in Tihar jail in New Delhi from where he observed the inhumane treatment by the jail officials of that department.
Thereafter, he sent a letter stating the miserable treatment done with a co-prisoner wherein an official in the want of money inserted the baton into the anal hole. This letter was then transformed into the habeas corpus writ
And that person appeared before an amicus curiae appointed by the court who confirmed the anal ruptures.
A.B.S.K Sangh (Rly.) v. Union of India, AIR 1981SC 298
It was contended in this case that respondent 6 who belonged to a minority class was promoted to D.S.K-I which belonged to the general category after being promoted from D.S.K-II from D.S.K-III both of which belonged to the reserved category. The reason given for this was that there was a vacancy in the general category.
The court ruled out that when there is a vacancy the place has to be filled by a person of the same class and if there is no one to fill up that place then the place is open to be filled by the person of any other class.
Human rights jurisprudence
Human rights are the rights that serve the purpose and needs of an individual. These are the rights against society rather than an individual. these rights are absolute as a person can’t put aside his human nature. The rights inculcate the resources, benefits, and immunity to all the people living in that society.
Human rights jurisprudence is the application to fulfill the human rights obligation.
In this case, a man was chained in the custody, whereafter a writ of habeas corpus was issued under Article 32 and was filed under Section 5 and 10 of the human declaration Act. The court ruled out that to preserve human dignity is very essential and manacling a man is dehumanizing. The prisoner is not an animal and Articles 14, 19 and 21 come into action.
Suspension of Fundamental Rights
Article 359 empowers the president to suspend the enforcement of fundamental rights during the state of emergency. There are three types of emergency that can be imposed by the state.
- National emergency
- State emergency
- Financial emergency
When a national or state emergency is imposed then Article19 is suspended whereas the whole part of fundamental rights can be suspended by the president, however, the order has to be presented before the parliament for its approval. Under no circumstances can Articles 20 and 21 be suspended.
Suspension of these rights is still a matter of debate even if the conditions have changed since the ADM Jabalpur case.
Classification of Fundamental Rights
Fundamental rights can be classified into six categories:
1.Right to equality(Article 14-18)
- Right to Freedom(Article 19-22)
- Right against Exploitation(Article 23-24)
- Right to Freedom of Religion(Article 25-28)
- Cultural and Educational Rights(Article 29-30)
- Rights to constitutional remedies(Article 32-35)
Fundamental Rights available against State and not against private individuals
Private rights being available only against the state and not against private individuals raises an issue, considering Article 15(2) which is discrimination, here if many people suffer from discrimination done by other individuals and taking up Article 17 which talks about untouchability is also done by private individuals. Article 23 which is for trafficking and Article 24 which prohibits the employment of children in hazardous industries should also be made available against a private individual.
If this is not made available against the private individual then the main purpose of the law to provide justice will get defeated.
Test to determine whether a body is an agency or instrumentality of the State
The state ruled out some checkpoints to recognize the body as an agency or instrumentality of the state in the case of RD Shetty V. International Airport Authority where the question as to whether the airport authority was a state or not arose. Two checkpoints were:
- If the state provides extensive financial support to the body.
- If the state has a wider degree of control over the body.
- Whether the function the body performs is of public utility and importance.
Laws inconsistent with Fundamental Rights
Article 13(1) talks about the laws which were present before the constitution came into force. It says that if they are inconsistent with the provisions of the part of this article will be void to the extent of the inconsistency.
Article 13(2) talks about the laws which are passed after the constitution came into force. It renders all the laws void which violates the provisions of this part.
Doctrine of severability
As in article 13(1), it is mentioned that the pre-constitutional law will only be void to the extent of the inconsistency while in article 13(2) it is mentioned that post-constitutional law will be void to the extent of the contravention.
The doctrine of Severability says that is if a part of any law is inconsistent then the rest of the part will remain valid. It applies to both pre and post-constitutional law.
It was found that section 14 of the preventive detention Act was violating Article 14 of the constitution so it was made void but the other parts of the act were separable while still alive and operative.
Doctrine of Eclipse
Article 13(1) talks about the pre-constitutional law as it says that the laws existing before the commencement of the constitution if found inconsistent with the provisions present in article 13 then they will be void.
But the Doctrine of Eclipse says that the inconsistent laws though becomes out of whack but not completely dead. It is eclipsed by the fundamental rights and can again be alive through some constitutional amendments.
It is only applicable to citizens as non-citizens do not have fundamental rights so they can’t challenge the validity of any law.
In the landmark case of Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955), a state law empowering the government to exclude motor transport from business was challenged as being violative of Article 19(1)(g). Subsequently, by the Constitution (1st Amendment) Act, 1951, the Government was empowered to make any business a monopoly. The Supreme Court held that after the 1951 Amendment the Act had become operative.
In the case of Mahendra Lal Jaini v. the State Of Uttar Pradesh (1962), the issue before the court was whether the doctrine of eclipse could be applied to post-constitutional laws. In this case, the constitutionality of the U.P. Land Tenure (Regulation of Transfers) Act, 1952 was challenged before the Supreme Court. The contention of the respondents was that even if the Transfer Act was unconstitutional, the 24th Amendment Act had made it operative by application of the doctrine of eclipse. The court made the following observations in this case:
- The Court held that the judgment of Bhikaji Narain case applied only to pre-constitutional laws and not to post-constitutional laws.
- Article 13(1) applies to the pre-constitutional laws which were valid at the time when they were made and were subsequently rendered unconstitutional after the commencement of the constitution. Article 13 gives recognition to those laws which were in force before the commencement of the constitution and provides that these laws would be void only to the extent that they abridge fundamental rights.
- On the other hand, Article 13(2) to those laws which are void at the time when they are made. Such laws are born dead and cannot be revived by the application of the doctrine of eclipse.
- Article 13(2) has two parts. The first part prohibits the state from enacting laws that infringe or abridge fundamental rights. The second part declares those laws which abridge fundamental rights as void. If the doctrine of eclipse is permitted to revive those laws which are made in contravention of fundamental rights then it would result in the failure for the first part of Article 13(2). Something which never had a valid existence cannot be revived.
- Thus, the court concluded that the doctrine of eclipse cannot be applied to the post-constitutional laws.
It was ruled out that only the pre-constitutional law can be brought to life whereas the post-constitutional law which infringes fundamental right is void from its dawn.
Doctrine of Waiver
This doctrine considers that a person is his own judge and will choose what is best for him. The doctrine of waiver says that a person can put aside his right if he wants to. It only talks about individual rights and not the rights of the public in general.
In the landmark case of Basheshar Nath v. the Commissioner of Income Tax (1958), the court dealt with the issue of whether fundamental rights can be waived or not. The Court firstly referred to the judgment of Behram Khurshed Pesikaka v. State of Bombay, where the Court had indicated a preference for the American position of doctrine of waiver. The Court in Behram Khurshed had held that if the fundamental rights are for the individual’s benefit, then they can be waived but the fundamental rights aimed at serving the interest of the society cannot be waived.
However, in this case, the court held that the American position could not be applied in India. The social economic and political scenario in the United States is very different from the social political and economic scenario prevailing in India. To determine the scope of applicability of the doctrine of waiver, the nature of the fundamental rights and the effect of the violation of these rights on the individual as well as on the society has to be considered.
Fundamental rights in India are meant for the welfare of society and not for securing individual benefit. These rights provide social, political and economic rights to the people.
However, Justice S.K. Das gave the dissenting opinion. He believed that if the right is meant for the benefit of the individual then the individual may waive the right. Once the right is waived, the individual will have no right to plead that his fundamental right has been abridged.
Some pavement dwellers took an undertaking to allow the government to set up huts on pavement and to not hinder the demolishing of the huts.
But during the demolishing of the huts the dwellers filed a petition under Article 21. The Supreme Court ruled out that no one can relinquish their fundamental rights as they are for the public utility given to an individual for his own benefit.
The Doctrine of lifting the veil
An individual when in a corporation if does a fraud or a scam then he thinks of hiding behind the real beneficiaries of the company but he can’t because the corporate veil can be lifted by the government by bringing in the doctrine of lifting the veil.
The government made a clear extinction between the partnership and shareholders. In a partnership where the owner can be held responsible, the shareholder can not.
“To no one should the right and justice be delayed, sold or denied” – promises our constitution but still injustice is been seen.
Fundamental rights were not so fundamental before the ADM Jabalpur case but many changes have been noticed since then but there are many to still strive for.
Whether it is the prison reforms that are to be changed and the system is to be made more transparent or the providing of rights against private individuals and not only the state, the legal mechanism to carry out the functioning of Article 13 which means the whole definition of law has to be armed till teeth.
In the absence of personal laws being included within Article 13, Article 13(1) runs the risk of becoming redundant since most of the pre-Constitutional laws have undergone the test of Part III. However, several personal laws of the pre-constitution era continue to remain operative without being subjected to judicial review. The true purpose of Article 13 can be fulfilled only through a wide and flexible interpretation.
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