Fundamental Rights in India PDF

FUNDAMENTAL RIGHTS Characteristics of Fundamental Rights 1. They are not absolute. 2. These rights are non-permanent in nature 3. FRs are individual Rights 4. FRs are enforceable against the State. It ensures limited government. 5. FRs are negative obligations of the state. 6. They are restricte...

FUNDAMENTAL RIGHTS Characteristics of Fundamental Rights 1. They are not absolute. 2. These rights are non-permanent in nature 3. FRs are individual Rights 4. FRs are enforceable against the State. It ensures limited government. 5. FRs are negative obligations of the state. 6. They are restricted rights. Unrestricted liberty becomes licence and jeopardises the liberty of others. 7. If individuals are given absolute freedom of speech and action, the result will be chaos, ruin and anarchy. 8. These rights can also be suspended during national emergency  JUDICIAL REVIEW AND FRS Definition of State (Art 12): “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. Art 13(1): 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. Art 13(2): 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. Art 13(3)(a):“law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;  JUDICIAL REVIEW AND FRS Rule of Severability According to Art. 13(1) and 13 (2), any part of a ‘law’ which is inconsistent with the provisions of Part III of the Constitution shall be declared void to the extent of such inconsistency. The doctrine of severability lays down that, if the valid sections of a law can be severed from the void sections, and if such valid sections can be considered to form an independent statute, these sections will remain valid. The clause states that if any part of the law is found to be invalid, the rest of the law will still be considered binding and enforceable. This prevents the entire law from being nullified due to the invalidity of a single provision.  JUDICIAL REVIEW AND FRS Doctrine of Eclipse The Supreme Court in the BikajiNarain vs the State of Madhya Pradesh (1955) case propounded the ‘doctrine of eclipse’ and clarified that any such law is not dead altogether. It is, in fact, overshadowed by the fundamental rights and remains dormant. It remained as a good law, when this particular FR was not in force. When the shadow cast by the fundamental rights is removed by a subsequent amendment, the eclipsed parts of such a law get revised and effective again. In the State of Gujarat vs Shri Ambika Mills case (1974), the Court stated that the doctrine can be extended to the post-Constitutional laws as well.  Are the FRs, the only set of rights? There are rights outside Part III 1. Art. 300-A: Persons shall not be deprived of their property save by the authority of law. 2. Art. 301:Freedom of trade and commerce. 3. Art. 326: Universal adult suffrage. Every person who is a citizen of India and who is not less than eighteen years of age shall be entitled to be registered as a voter. Analysis 1. These are equally guaranteed rights. 2. But no right to go to Supreme Court directly. 3. Can approach High Courts. 4. These are Constitutional Rights. 5. Not second class rights.  Are the FRs, the only set of rights? ART. 300A Art 300A.- Persons not to be deprived of property save by authority of law. 44th amendment act removed Art 31 and introduced Art 300A in 1978. Now the remedy would be under Article 226 or civil court. According to Art 300A, a law will be necessary to deprive a person of his property. In all democratic countries, -the government cannot interfere with property rights of an individual without authority of law (a valid law). An executive order depriving a person of his property, without being backed by law, is not constitutionally valid.  Are the FRs, the only set of rights? ART. 300A The purpose of removal of Art 31 from FR and converting it into a Constitutional right is to balance the right of individual with the power of the Government to take over property for common good. More over right to property cannot be clubbed with natural rights. Other FRs are generally natural rights. Now, after Land Acquisition Act, 2013, there are provisions to provide fair compensation to those whose land is taken away. The Act replaced the Land Acquisition Act, 1894, a nearly 120-year-old law enacted during British rule.  AMENDABILITY OF FRS First Amendment Act 1951 introduced reservations for SC/ST communities and amended FRs of Art 15 & Art 16. It was challenged in Shankari Prasad vs Union of India (1952) and Supreme Court declared that Parliament can Amend FRs and Art 13(2) is no limitation on Parliament in amending FRs. the word ‘Law’ as mentioned in Article 13(2) did not include in its ambit the Constitution Amendment Act. The Constitutional Amending power under Art 368 is distinct from the normal legislative power. Hence any Amendment to the Constitution including Fundamental Rights is fully valid  AMENDABILITY OF FRS Even in Sajjan Singh vs. State of Rajasthan (1965), Supreme Court held that by exercising its amending power under Art. 368, the Parliament can amend even Part III of the Constitution. But in Golaknath vs. State of Punjab (1967) case, the Supreme Court overruled its earlier decision and held that the Fundamental Rights embodied in Part III had been given a ‘transcendental position’ by the Constitution and no authority including the Parliament, through its amending power under Art. 368, was competent to amend the Fundamental Rights. “Law” in Art 13(2) includes Constitutional Amendment as well. However by the 24th Amendment Act, 1971, the Parliament suitably amended Art. 13 and Art. 368 to empower itself to amend Part III of the Constitution.  AMENDABILITY OF FRS Kesavananda Bharati vs. State of Kerala (1973). Upholding the validity of the 24th Amendment 1971 and also overruling the Court verdict in the Golaknath’s case the Court in this case held that the Parliament can amend any provisions of the Constitution including Fundamental Rights by its amending power under Art. 368, provided such amendments do not touch the basic features of the Constitution. 42th Amendment Act 1976 declared that there is nothing called ‘Basic Structure’ and Parliament’s power to amend cannot be curtailed In Minerva Mills case 1980, Supreme court struck down the provisions related to Constitutional amendments in 44th AA and restored 24th AA. Today, Parliament can Amend FRs, but subject to Basic Structure of the Constitution.  Basic Structure Doctrine: 50 years BASIC STRUCTURE OF THE CONSTITUTION The concept of basic structures of the Constitution is nowhere found in the Constitution. This doctrine is a judicial innovation and was given its shape by the Supreme Court in the Kesavananda Bharati vs State of Kerala case (1973). The doctrine simply states that any law passed by the Parliament, which destroys the basic structure of the Constitution, shall be declared void to the extent of its destruction. The basic aim of the Supreme Court was to maintain its superiority as well as to sustain a balance between the three organs of the state. The Court, however, did not define in precise terms the basic features of the Constitution.  Basic Structure Doctrine: 50 years BASIC STRUCTURE OF THE CONSTITUTION But in a number of decisions, the Supreme Court has made it clear as to what the basic features of the Constitution is. The following are the doctrines of basic structure as propounded by the Courts: Keshavnanda Bharti V. State of Kerala (1973) 1. Supremacy of the Constitution. 2. Republican and democratic form of Government. 3. Secular character of the Constitution. 4. Separation of powers between the organs of the State. 5. Federal character of the Constitution. 6. Sovereignty and Unity of India. 7. Individual freedom.  Basic Structure Doctrine: 50 years BASIC STRUCTURE OF THE CONSTITUTION Indira Nehru V. Rajnarain case 1. Equality of status and of opportunity. 2. Secularism and freedom of conscience. 3. Rule of Law. Minerva Mills case (1980) 1. Amending powers of Parliament. 2. Judicial Review. 3. Balance between Fundamental Rights and DPSPs. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments. The Constitution provides for a scheme of checks and balances against any potential abuse of power.  Basic Structure Doctrine: 50 years Why is it important? 1. any legislation contrary to the basic structure is no-law. 2. all laws and constitutional amendments are now subject to judicial review. 3. laws that transgress the basic structure are likely to be struck down by the Supreme Court. 4. Parliament's power to amend the Constitution is not absolute 5. It provides checks and balances between the three organs of government namely, the legislature, the executive and the judiciary, against any potential abuse of power.  Basic Structure Doctrine: 50 years Why is it important? 6. The judgment in IR Coelho (2007) put the basic structure doctrine on firmer footing. 7. it reiterated the validity of art 141 (Article 141: the law declared by the Supreme Court shall be binding on all courts within the territory of India). 8. By invoking Article 141, the court declared that the doctrine of basic structure, as laid down in previous judgments, is binding on all courts within India. 9. Article 141 empowers the Supreme Court to establish and enforce legal principles, such as the Basic Structure Doctrine. It means that the Supreme Court's judgments have precedential value and establish the law of the land.  Basic Structure Doctrine: 50 years What are the criticisms? 1. the doctrine has no basis in the Constitution’s language. 2. the doctrine accords the judiciary a power to impose its philosophy over a democratically formed government. 3. Former Union Minister Arun Jaitley once termed as a “tyranny of the unelected”. 4. Its not defined 5. Parliament cannot be subject to vague and uncertain doctrine. 6. Judicial Overreach: Some experts argue that the Basic Structure Doctrine allows the judiciary to exercise excessive control over the legislative process.  Basic Structure Doctrine: 50 years What are the criticisms? 7. Unequal Power Distribution: Critics contend that the Doctrine could disrupt the balance of power between the three branches of government, heavily in favour of Judiciary. 8. The Doctrine might make it more difficult to amend the Constitution, even when such amendments are necessary to address changing societal needs. 9. The Basic Structure Doctrine has been criticized for being inflexible. 10.Citing basic structure doctrine, Vice President Jagdeep Dhankhar asks ‘are we a democratic nation’  Basic Structure Doctrine: 50 years Final Analysis 1. The basic structure canon is legally legitimate, in that it is deeply rooted in the Constitution’s text and history. 2. it also possesses substantial moral value, in that it strengthens democracy by limiting the power of a majoritarian government. 3. Constitution is supreme in India; Parliament is a creation of the constitution. 4. Parliament is not sovereign in India. 5. The amending power of the Parliament is limited and is subject to the provisions of the constitution. 6. An amendment is essentially a correction or minor change and not a complete overturn 7. If Parliament is supreme, what is a sovereign democratic republic can be converted into a totalitarian regime. 8. Basic structure doctrine is the correct interpretation of the constitution  Basic Structure Doctrine: 50 years Final Analysis 9. It has saved the country and democracy from the tyranny of majoritarian governments. 10.It has created the right checks and balances in the constitution. 11.Not clearly defined does not mean it is non existent. 12.Basic structure is the essence of the constitution and if we look at freedom struggle, Nehru Report, provisions like Preamble, FRs, procedure to amend the constitution etc, we can get a clear hint about it.