FUNDAMENTAL RIGHTS

Rights are claims that are essential for the existence and development of
individuals. In that sense there will be a long list of rights. Whereas all these are
recognized by the society, some of the most important rights are recognized by
the State and enshrined in the Constitution. Such rights are called fundamental
rights. These rights are fundamental because of two reasons.

1. These are mentioned in the Constitution which guarantees them; and

2. These are justifiable, ie, enforceable through courts.

The fundamental rights were included under Part III of the Indian Constitution
because they were considered essential for the development of the personality
of every individual and to preserve human dignity. These Fundamental Rights
guarantee to each citizen basic substantive and procedural protections from
any arbitrary state actions, but some rights are enforceable against individuals
also. However, these rights are not absolute or uncontrolled and are subject to
reasonable restrictions as necessary for the protection of general welfare.
Origin of fundamental rights:—
This Chapter of the Constitution of India is well described as the Magna Carta
of India. As early as in 1214, the English people exacted an assurance from King
John for respect of the ancient liberties. The Magna Carta is the evidence of
their success which is a written document. This is the first written document
relating to fundamental rights. Thereafter from time to time, the King had to
accede to many rights to his subjects. In 1689, the Bill of rights was written
consolidating all important rights and liberties of the English people. In France
Declaration of Rights of Man and the Citizen (1789) declared the natural,
inalienable and sacred rights of man. Following the spirit of the Magna Carta of
the British and the Declaration of the Rights of Man and the Citizen of France,
the Americans incorporated the Bill of Rights in their Constitution. The
Americans were the first to give Bill of Rights a Constitutional status. While
drafting the Constitution of India, our Constitutional draftsmen took an
inspiration and therefore incorporated under Part III what is called "fundamental
rights".

Classification of fundamental rights:—

FUNDAMENTAL RIGHTS 1
 Fundamental
Article(s) Available to Possible Against Whom
Right

Primarily the State; some

provisions (like Article 17
Right to Equality 14 – 18 All persons
and 18) apply to
individuals also

Article 19: Citizens

Right to Freedom 19 – 22 only; Articles 20–22: The State
All persons

Right against Both the State and private

23 – 24 All persons
Exploitation individuals

Right to Freedom
25 – 28 All persons The State
of Religion

Cultural and
Citizens and
Educational 29 – 30 The State
minorities
Rights

Right to
The State (for violation of
Constitutional 32 All persons
Fundamental Rights)
Remedies

It is important to Noted that the 44th Amendment has abolished the right to
property as a fundamental right as guaranteed by Art. 19(1)(0) and Art.31 of the
Constitution. But now it is just a legal or a Constitutional right as incorporated
under Art. 300-4. It is not a Fundamental Right anymore.

Definition of state (Article 12):— Article 12 says that unless the context
otherwise requires the term 'State' includes the following:

1. The Government and Parliament of India, i.e., Executive and Legislature of

the Union

2. The Government and the Legislature of each of the States, i.e., Executive
and Legislature of States.

3. All the local or other authorities within the territory of India or under the
control of the Government of India.

The term 'State' thus includes executive as well as the legislative organs of the
Union and States. Apart from that alll the local or other authorities within the
territory of India or under the control of the Government of India are are
included in the definition of state.

FUNDAMENTAL RIGHTS 2
 1. Local Authorities:— The term local authorities as defined in Section 3 (31)
of the General Clauses Act, 1897 refers to authorities like Municipalities,
District Boards, Panchayats, Improvement Trust and Mining Settlement
Boards. Thus, In Mohammed Yasin v. Town Area Committee, the Supreme
Court held that the bye-laws of a Municipal Committee charging a
prescribed fee on the wholesale dealer was an order by a State Authority
contravened Article 19 (1)(g).

2. Other authorities:— The term other authorities have nowhere been

defined. Therefore, its interpretation has caused a good deal of difficulty,
and judicial opinion has undergone changes over time.
In University of Madras v. Shantha Bai (1954), the Madras High
Court held that 'other authorities' could only indicate authorities of a like
nature, i.e. ejusdem generis. So construed, it could only mean authorities
exercising governmental or sovereign functions. It could not include
persons, natural or juristic, such as, a University unless 'maintained by the
State'.
However, In Ujjammbai v. State of U.P.(1962), the Court rejected this
restrictive interpretation of the expression 'other authorities' given by the
Madras High Court and held that the ejusdem generis rule could not be
resorted to in interpreting this expression.
And, In Electricity Board, Rajasthan v. Mohan Lal. (1967), the
Supreme Court held the expression 'other authorities' is wide enough to
include all authorities created by the Constitution or statute on whom
powers are conferred by law. It is not necessary that the statutory authority
should be engaged in performing governmental or sovereign function. On
this interpretation the expression 'other authorities' will include Rajasthan
Electricity Board

Further, in Sukhdev v. Bhagatram (1975), It was held that Oil and

Natural Gas Commission, Life Insurance Corporation, Industrial Finance
Corporations are all 'States' under Article 12, because all these three
statutory Corporations have power to make rules and regulations for
regulating conditions of service of their employees and such rules and
regulations have the force of law.

Moreover in subsequent cases, the Supreme Court has given a broad

and liberal interpretation to the expression 'other authorities' under Article
12. With the changing role of the State from merely being a police State to a

FUNDAMENTAL RIGHTS 3
 welfare State it was necessary to widen to scope of the expression
"authorities" in Article 12 so as to include all those bodies which are, though
not created by the Constitution or by a statute, are acting as agencies or
instrumentalities of the Government.

In Ramana Dayaram Shetty V. The International Airport Authority of

India (1979), the Supreme Court held-If a body is an agency or
instrumentality of government it may be an 'authority' within the meaning of
Article 12 whether it is a statutory corporation, a government company or
even a registered society. Accordingly. the International Airport Authority
created by an Act of Parliament is the "State" within the meaning of Article
12.

In the aforesaid case, the Court laid down the following tests for
determining whether a body is an agency or instrumentality of the
Government :-

1. Financial resources of the State is the chief funding source, ie., the
entire share capital of the corporation is held by Government.

2. Existence of deep and pervasive State control.

3. Functional character being governmental in essence, ie., the functions

of the corporation are of public importance and closely related to
governmental functions.

4. A department of Government is transferred to a corporation.

5. Whether the corporation. enjoys monopoly status which is State

conferred or State protected

In Central Inland Water Transport Corporation v. Brojo Nath Ganguly

(1986), applying the above test, Central Inland Water Transport Corporation
was held to be State' under Article 12.

In Ajay Hasia v. Khalid Mujib(1981), it has been held that a registered

Society is an agency or "instrumentality of the State" and hence a 'State'
within the meaning of Article 12 as It is completely controlled by the
Government.

3. Authorities under the control of the Government of India:— By words

'authorities under control of the Government of India', is meant to bring into
the definition of State all areas outside Indian territory but which are under
or may come under the control of the Government of India, such as,

FUNDAMENTAL RIGHTS 4
 mandated or trust territories. Such a territory may come under India's
control by international agreement. Thus, even such areas will be the
subject to Part III and the inhabitants of such areas may also claim the
benefit of Fundamental Rights guaranteed in Part III.

Judiciary included in the word "State"?

The question whether the judiciary is included within the definition of 'the
State' in Article 12 arose for consideration of the Supreme Court in Naresh
v. State of Maharashtra(1967). which held-Even if a Court is the State, a
writ under Article 32 cannot be issued to a High Court of competent
jurisdiction against its judicial orders, because such orders cannot be said
to violate the fundamental rights.

Mr. H.M. Seervai is of opinion that the judiciary should be included in the
definition of 'the State' and a Judge acting as a Judge is subject to the writ-
jurisdiction of the Supreme Court. 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.

The Supreme Court in A.R. Antulay v. R.S. Nayak(1988), held-The Court

cannot pass an order or issue a direction which would be violative of
fundamental rights of citizens. Thus, it can be said that the expression
"State" as defined in Article 12 of the Constitution includes judiciary also

Thus, the word 'state' under Article 12 jurisprudence has evolved in India
through various interpretations and discussions in the High courts and the
Supreme court. It has been given a wider meaning which ensures that Part-III
of the constitution can be applied to a larger extent.

Judicial review (Article 13):— The power of the Judiciary to review the Act of
the Legislature or the Executive or the validity of a law or an order in order to
determine its constitutional propriety and to ensure that such actions conform
to the provisions of the nation's Constitution is known as the "Doctrine of
Judicial Review". Judicial Review implies that the Constitution is the supreme
power of the nation and all laws are under its supremacy and that any law
inconsistent therewith is void through judicial review. Judicial review is adopted
in the Indian Constitution from the Constitution of the United States of America.
Origin of judicial review:— The doctrine of judicial review was for the first time
propounded by the Supreme Court of America. Originally, the United States
Constitution did not contain an express provision for judicial review. The power
of judicial review was, however, assumed by the Supreme Court of America in

FUNDAMENTAL RIGHTS 5
 the historic case of Marbury v. Madison(1803), by Justice John Marshall.
However ,In Indian Constitution, there is an express provision for judicial review.
Judicial review under Article 13:— Article 13 of Indian Constitution dealt with
Judicial Review, which provides for the judicial review of all legislations in India,
past as well as future. This power has been conferred on the High Courts and
the Supreme Court of India (Article 226 and Article 32 respectively) which can
declare a law unconstitutional if it is inconsistent with any of the provisions of
Part III of the Constitution.

1. Pre-Constitution Laws:— According to clause (1) of Article 13. all pre

Constitution or existing laws, i.e., the laws which were in force immediately
before the commencement of the Constitution shall be void to the extent to
which they are inconsistent with fundamental rights from the date of the
commencement of the Constitution.

Article 13 (1) is prospective in nature. All pre-Constitution laws

inconsistent with Fundamental Rights will become void only after the
commencement of the Constitution. They are not void ab initio. Such
inconsistent law is not wiped out so far as the past Acts are concerned. A
declaration of invalidity by the Courts will, however, be necessary to make
the laws invalid.

In Keshavan Madhavan Menon v. State of Bombay(1951), a

prosecution proceeding was started against the petitioner under the Press
(Emergency Powers) Act, 1931 in respect of a pamphlet published in 1949.
The present Constitution came into force during the pendency of the
proceeding in the Court. The appellant contended that the Act was
inconsistent with the fundamental rights conferred by Article 19 (1)(a) of the
Constitution hence void, and the proceeding against him could not be
continued. The Supreme Court held-Article 13 (1), could not apply to his
case as the offence was committed before the present Constitution came
into force and therefore, the proceedings started against him in 1949 were
not affected.

Doctrine of Severability:— This doctrine means that if an offending

provision can be separated from that which is constitutional then only that
part which is offending is to be declared as void and not the entire statute.
Article 13 of the Constitution uses the words "to the extent of such
inconsistency be void" which means that when some provision of the law is
held to be unconstitutional then only the repugnant provisions of the law in
question shall be treated by courts as void and not the whole statute.

FUNDAMENTAL RIGHTS 6
 In A.K. Gopalan v. State of Madras (1950), Only Section 14 of
Preventive Detention Act, 1950 was held unconstitutional. Applying the
doctrine of severability, whole Act except Section 14 was held valid.
Further, In State of Bombay v. F.N. Bulsara (1951), It was observed
that the certain provisions of Bombay Prohibition Act, 1949, which have
been declared as void do not affect the entire statute, therefore, there is no
necessity for declaring the whole statute as invalid.

However, in Romesh Thapper v. State of Madras(1950), the Supreme

Court held that only if the unconstitutional portions cannot be removed then
the whole Act will be utra-vires and thus unconstitutional.
In R.M.D.C. v. Union of India, (1957), the Supreme Court held that
where after removing the invalid portion what remains constitutes a
complete Code there is no necessity to declare the whole Act invalid. In
such cases, whether the valid parts of the statute are separable from the
invalid, the intention of the legislature is the determining factor.
Doctrine of Eclipse:— The doctrine of eclipse is based on the principle that
a law which violates Fundamental Rights is not nullity or void ab initio but
becomes only unenforceable, Le., remains in a moribund condition. "It is
over-shadowed by the fundamental rights and remains dormant; but it is not
dead." Such laws are not wiped out entirely from the statute book. They
exist for all past transactions, and for the enforcement of rights acquired
and liabilities incurred before the present Constitution came into force and
for determination of right of persons who have not been given fundamental
rights by the Constitution, e.g., non-citizens.

Such law can be revived and made effective by an amendment in the

Constitution. In Bhikaji v. State of M.P.(1955), the provisions of C.P. and
Berar Motor Vehicles Act, 1947, though valid when enacted, became void
on the coming into force of the Constitution in 1950 as they violated Article
19 (1)(g) of the Constitution. However, in 1951, Clause (6) of Article 19 was
amended by the Constitution (1st Amendment) Act, so as to authorise the
Government to monopolise any business. The Supreme Court held that 'the
effect of the Amendment was to remove the shadow and to make the
impugned Act free from all blemish or infirmity'. It became enforceable
against citizens as well as non-citizens after the constitutional impediment
was removed.

FUNDAMENTAL RIGHTS 7
 2. Post-Constitution Laws:— Clause (2) of Article 13 prohibits State to make
any law which takes away or abridges rights conferred by Part III of the
Constitution. If State makes such a law then it will be ultra vires and void to
the extent of the contravention. It is still-born law and cannot be revived by
removal of the constitutional prohibition by subsequent amendment of the
Constitution. Though post-Constitution laws inconsistent with fundamental
rights are void from their very inception,i.e, void ab initio yet a declaration
by the Court of their invalidity will be necessary.
In Deep Chand v. State of U.P.(1959), the Supreme Court held that a
post-constitutional law made under Article 13 (2) which contravenes a
fundamental right is nullity from its inception and a still-born law. It is void
ab initio. The doctrine of eclipse does not apply to post-constitutional laws
and, therefore, a subsequent constitutional amendment cannot revive it.
In Mahendra Lal Jain v. State of U.P.(1963), the Supreme Court
approved the majority view expressed in Deep Chand's case and held that
the doctrine of eclipse applies only to pre-Constitution law under Article 13
(1) and not to post-Constitution law under Article 13 (2).
In State of Gujarat v. Ambica Mills(1974), the Supreme Court held-A
post-Constitution law which is inconsistent with fundamental rights is not
nullity or non-existent in all cases and for all purposes. A post-
Constitutional law which takes away or abridges the right conferred by
Article 19 will be operative as regards to non-citizens because fundamental
rights under Article 19 are not available to non-citizens.
Doctrine of Waiver:— The question of waiver directly arose in Bashesher
Nath v. Income Tax-Commissioner(1959). The petitioner whose case was
referred to the Income-tax Investigation Commissioner under Section 5 (1)
of the Act was found to have concealed large amount of income. He,
thereupon, agreed at a settlement in 1954 to pay Rs. 3 lakhs in monthly
instalments by way of arrears of tax and penalty. In 1955, the Supreme
Court in Muthiah M. Ct. v. Commissioner of Income tax, held that Section 5
(1) of the Taxation of Income (Investigation Commission) Act was ultra vires
of Article 14. The petitioner then challenged the settlement between him
and the Income Tax Investigation Commission. The respondent contended
that even if Section 5 (1) was invalid, the petitioner by entering into an
agreement to pay the tax had waived his fundamental right guaranteed
under Article 14.

FUNDAMENTAL RIGHTS 8
 The majority held-The doctrine of waiver, as formulated by some
American Judges interpreting the American Constitution, cannot be applied
in interpreting the Indian Constitution. It is not open to a citizen to waive any
of the fundamental rights conferred by Part III of the Constitution.

3. Law' and 'Laws in force:— For the purposes of Article 13, "Law" is defined
as including an Ordinance, Order, bye-laws, rules or regulations,
notification, custom or usage having the force of law. The definition of 'law'
in this Article is wider than the ordinary connotation of law which refers to
enacted law or legislation. It includes even the administrative order issued
by an executive officer, but does not include administrative directions or
instructions issued by the Government for the guidance of its officers.
Though the term "law" includes all 'laws in force', le, custom. usage, etc.
having the force of law, personal laws of Hindus, Muslims and Christians
are excluded from the definition of "law" for the purpose of this Article.

"Laws in force' denote all prior and existing laws passed by the
Legislature or other competent authority which have not been repealed
notwithstanding the fact that are not in operation wholly or in part
throughout India or part thereof. The term 'existing law' includes a wider
range, such as, ordinance, orders, bye-laws, rules or regulations by
Legislature or other authorised body or person. Thus, an ordinance issued
by the President under Article 123 or by the Governors under Article 213, a
Government notification a bye-law of a municipal body are all laws in force.
A rule of conduct to be called a law must be established that it has a force
of law.

4. Constitutional amendment a 'law' under Article 13(2):— The question

whether the word 'law' in clause (2) of Article 13 also includes a
'Constitutional amendment was for the first time considered by the
Supreme Court in Shankari Prasad v. Union of India. The Court held that
the word 'law' in clause (2) did not include law made by Parliament under
Article 368. This interpretation of Shankari Prasad's case was followed by
the majority in Sajjan Singh v. State of Rajasthan.

But in Golak Nath v. State of Punjab," the Supreme Court overruled its
decision in the aforesaid cases, and held that the word 'law' in Article 13 (2)
included every branch of law, statutory, Constitutional, etc., and hence, if
an amendment to the Constitution took away or abridged fundamental right
of citizens, the amendment would be declared void.

FUNDAMENTAL RIGHTS 9
 In order to remove the difficulty created by the Supreme Court's
decision in Golak Nath's case, the Constitution (24th Amendment) Act, 1971
inserted clause (4) in Article 13 of the Constitution which makes it clear that
Constitutional amendments passed under Article 368 shall not be
considered as 'law' within the meaning of Article 13 and, therefore, cannot
be challenged as infringing the provisions of Part III of the Constitution. The
Supreme Court in Kesavananda Bharati case. overruled Golak Nath case
and upheld the Constitution (24th Amendment) Act, 1971.

FUNDAMENTAL RIGHTS 10