FUNDAMENTAL RIGHTS (PART 3: ARTICLE 12 – 13)
FUNDAMENTAL RIGHTS :
• The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights).
• Part III of the Constitution is rightly described as the Magna Carta of India.1.It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights
FEATURES :
1. Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
2. They are not absolute but qualified. The state can impose reasonable restrictions on them. However, whether such restrictions are rea-sonable or not is to be decided by the courts.
3. Most of them are available against the arbitrary action of the State, with a few exceptions like those against the State’s action and against the action of private individuals.
4. Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.
5. They are justiciable.
6. They are defended and guaranteed by the Supreme Court.
7. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done without affecting the ‘basic structure’ of the Constitution
8. They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Further, the six right guaranteed by Article 19 can be suspended only when emergency is declared on the grounds of war or external
9. Their application to the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).
10. Their application can be restricted while martial law is in force in anyarea. Martial law means ‘military rule’ imposed under abnormal circumstances to restore order (Article 34)
Article 12 :
• The term ‘State’ has been used in different provisions concerning the fundamental rights. Hence, Article 12 has defined the term for the purposes of Part III. According to it, the State includes the following:
· Government and Parliament of India, that is, executive and legislative organs of the Union government.
· Government and legislature of states, that is, executive and legislative organs of state government.
· All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.
· All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
Article 13 :
• Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review.
• This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.
• The term ‘law’ in Article 13 has been given a wide connotation so as to include the following:
a) Permanent laws enacted by the Parliament or the state legislatures;
b) Temporary laws like ordinances issued by the president or the state
c) governors;Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and
d) Non-legislative sources of law, that is, custom or usage having the force of law.
CASE :
• Further, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged.
• However, the Supreme Court held in the Kesavananda Bharati case2 (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void.
RIGHTS :
• Right to equality (Articles 14–18)
• Right to freedom (Articles 19–22)
• Right against exploitation (Articles 23–24)
• Right to freedom of religion (Articles 25–28)
• Cultural and educational rights (Articles 29–30)
• Right to property (Article 31)
• Right to constitutional remedies (Article 32)
• However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.
0 Comments