CONSTITUTION OF INDIA:

Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

CONSTITUTION OF INDIA EXPLAINED

The Constitution of India forms the bedrock of any and every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam. To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus:

PART III        FUNDAMENTAL RIGHTS

INTRODUCTION

• Part III, containing the Fundamental Rights, is undoubtedly the most significant provision of our Constitution.
• Of them, the Right to Constitutional Remedies, contained in Article 32, was termed by Dr. B R Ambedkar as the “heart and soul” of the Constitution.

INSPIRATION

Fundamental Rights, as incorporated in Part III of our Constitution, were inspired by the Bill of Rights of the US Constitution, as also by the Universal Declaration of Human Rights as declared by the United National General Assembly on Dec 10, 1948.

APPLICABILITY

While some Fundamental Rights are available only to Indian citizens, others are available to all ‘persons’, including corporations and foreign nationals.

• Only for citizens: Articles 15, 16, 19, 29, 30
• For all persons: Articles 14, 20, 21, 25, 32

PROTECTION AND SANCTITY

• Article 13 of our Constitution specifically protects Fundamental Rights from legislative and executive encroachment.
• Legislative and executive action in violation of Fundamental Rights is declared null and void by this Article by the following provisions:

Article 13 Clause (1)

• All existing laws shall be void
  • to the extent they are inconsistent with this Part

Article 13 Clause (2)

• State shall not make any law
  • which takes away or abridges rights conferred by this Part
• If any such law is made
  • it shall be void to the extent it takes away or abridges these rights

Clause (3)

• Law in this Article includes ordinance, order, by-law, rule, regulation, notification

Clause (4)

• This article shall not apply to amendments under article 368

Note:

• This last clause was added by the 24th Amendment Act in 1971

Landmark Case law on Article 13:

Case 1:     Shankari Prasad v. Union of India    [1951 SC]

Question:

• Whether the Constitution (First Amendment) Act 1951, which was passed by the provisional Parliament to insert articles 31A and 31B, is ultra vires and unconstitutional?

Judgment:

• “Although “law” must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power.”
• “The terms of article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. In short, we have here two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other.”
• “In the context of article 13, “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13(2) does not affect amendments made under article 368.”

Case 2:   Golaknath v. State of Punjab [1967 SC]

Questions:

• Whether Amendment is a “law” within the meaning of Article 13(2)?
• Whether Fundamental Rights can be amended by Parliament?

Decision:

• The Supreme Court overruled its decision in Shankari Prasad v. Union of India.
• By a thin majority of 6:5, it held that a constitutional amendment under Article 368 of the Constitution was an ordinary ‘law’ within the meaning of Article 13(2). The majority did not believe there was any difference between ordinary legislative power of the parliament and the inherent constituent power of parliament to amend the Constitution. The majority did not agree with the view that Article 368 of the Constitution contained “power and procedure” to amend, but instead believed that the text of Article 368 only explained the procedure to amend the constitution, the power being derived from entry 97 of the List I of the VII Schedule.
• Since according to Article 13(3), Parliament could not make any law that abridges the Rights contained in Part III, a constitutional amendment, also being an ordinary law within the meaning of Article 13, could not be in violation of the fundamental rights. Therefore, all constitutional amendments thus far which were in contravention or which had made an exception to fundamental rights were said to be void.

Case 3:   Keshavanand Bharti v. State of Kerala   [1973 SC]

• The Supreme Court overruled its decision in Golaknath v. State of Punjab.
• By a thin majority of 7:6, it held that Parliament could amend any provision of Part III of the Constitution.
• However, it was hedged with the doctrine of Basic Structure. The Court held that any feature of the Basic Structure of the Constitution could not be altered by Parliament even under its Constituent Power.

PROTECTION AGAINST WHOM?

• Article 13 protects Fundamental Rights from violative actions by the “State”.

But what is ‘State’?

• This term is defined in Article 12 to mean the Legislature as well as the Executive:

DEFINITION OF ‘STATE’:

• In this Part, State includes:
  • Government of India and Parliament of India
  • Government of each State and Legislature of each State
  • All local authorities in India
  • Other authorities in India or under control of GoI

• Scope of this term “State” has been continuously expanded by the Supreme Court since 1967 through its judgments.