Fundamental Rights are the most important rights of all the basic human rights without which survival of an individual is not possible and are well-recognized by our supreme Indian Constitution to live a protected life with dignity and protect it from invasion by the state.
Fundamental Rights were included in Part III of the draft of Constitution. These were discussed for 16 days (1). The idea of Fundamental Rights was borrowed from the Constitution of United States.
Fundamental Rights being the essence of people’s life needed an unbreakable shield. The Constitution of India has this shield in the name of Article 13(2).
Article 13: Laws inconsistent with or in derogation of the fundamental rights.—
(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.
(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.
(3) In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
[(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]*
*Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 2 (w.e.f. 5-11-1971).
With time and several interpretations there was ambiguity on the fact whether the word “law” in Article 13(2) of the Constitution of India, includes “Amendments”? And if so, do Courts have power to declare them unconstitutional? With such uncertainty, it was imperative to find a middle way. Doors of Supreme Court were knocked to have a clear picture and harmonious construction. Below is the timeline of the weighty cases that have helped a lot in having a clearer insight on this hot topic.
Shankari Prasad v. Union of India (AIR 1951 SC 455)
It was challenged that Amendment (in this case amendment to Article 31A and 31B) that take away fundamental right of the citizens is not allowed by Article 13(2).
The Hon’ble Supreme Court in this case held that the Parliament has the power to amend any part of the Constitution including fundamental Rights under Article 368 and won’t be termed as Law under Article 13 (2).
The Court gave the same ruling in Sajjan Singh v. State of Rajasthan case in 1965 and interpretation made in the prior case was majorly followed.
Golak Nath v. State of Punjab 1967 AIR 1643, 1967 SCR (2) 762
Here in this case, the Hon’ble Supreme Court overruled their judgment passed in Sajjan Singh v. State of Rajasthan and held that Parliament cannot amend Fundamental Rights. With the judgment of this case the Parliament’s power to amend Constitution under Article 368 was reduced and can be challenged as void if it would hit the fundamental rights.
Parliament, to revive their power brought 24th Amendment in 1971 and added 4th clause to Article 13 of Indian Constitution stating “Nothing in this Article shall apply to any amendment of this Constitution made under article 368.”
Kesavananda Bharati v. State Of Kerala and Anr, 1973
The judgment of Golak Nath v. State of Punjab was overruled. The Constitutional validity of 24th Amendment was challenged before the Hon’ble Court and the majority bench upheld the entire 24th Amendment Act valid.
This view held that the Constitution gives a place of permanence to the fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed this limitation on the powers of Parliament. Parliament could not modify, restrict or impair fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under it. The judges stated that the fundamental rights were so sacrosanct and transcendental in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of Parliament. They observed that a Constituent Assembly might be summoned by Parliament for the purpose of amending the fundamental rights if necessary. In other words, the apex court held that some features of the Constitution lay at its core and required much more than the usual procedures to change them.
The phrase 'Basic Structure' was introduced for the first time by M.K. Nambiar and other counsels while arguing for the petitioners in the Golak Nath case, but it was only in 1973 that the concept surfaced in the text of the apex court's verdict. Most importantly seven of the thirteen judges in the Kesavananda Bharati case, including Chief Justice Sikri who signed the summary statement, declared that Parliament's constituent power was subject to inherent limitations. Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution.
Basic Features of the Constitution according to the Kesavananda verdict:
Each judge laid out separately, what he thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either.
Sikri, C.J. explained that the concept of basic structure included:
1. Supremacy of the Constitution
2. Republican and Democratic form of Government
3. Secular character of the Constitution
4. Separation of powers between the Legislature, Executive and the Judiciary
5. Federal character of the Constitution
Shelat, J. and Grover, J. added two more basic features to this list:
1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Unity and integrity of the nation
Hegde, J. identified a separate and shorter list of basic features:
1. Sovereignty of India
2. Democratic character of the polity
3. Unity of the country
4. Essential features of the individual freedoms secured to the citizens
5. Mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:
1. Sovereign, Democratic, Republic
2. Parliamentary Democracy
3. Three organs of the State
He said that the Constitution would not be itself without the fundamental freedoms and the directive principles. (2)
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Edited by @ Vasu Gupta
Endnotes
(1) https://www.prsindia.org/policy/vital-stats/analysis-constituent-assembly-debates#:~:text=Fundamental%20Rights%20were%20included%20in,were%20discussed%20for%2016%20days
(2) http://constitutionnet.org/vl/item/basic-structure-indian-constitution
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