What are Fundamental Rights under Indian Constitution? Amendability of Fundamental Rights | PCS J notes Indian Constitution - PCS J mains solved paper PDF free download
Introduction
The term Fundamental Right' is not defined in the Constitution. These rights can be termed as certain inviolable rights which are essential to protect rights and liberties of the people against the encroachment by the State. These rights are regarded as Fundamental' because they are most essential for attainment of certain basic liberties and freedom in order to live a dignified life.
Part III of the Constitution of India contains Fundamental Rights. These have been also termed as Magna Carta of India. Certain essential fundamental rights are entrenched in Indian Constitution. Entrenchment means that the guaranteed rights cannot be taken away by an ordinary law. A law curtailing or infringing fundamental right would be declared as void.
In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 the Supreme Court observed that fundamental rights represent the basic values cherished by the people of India and they protect the dignity of an individual and create conditions in which every human being can develop his personality to the fullest extent.
In Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1 Supreme Court held that fundamental rights have two aspects, firstly, they act as a fetter on plenary legislative powers and secondly, they provide conditions for fuller development of people. The aim of the inclusion of these rights in the Constitution is to protect the values which are indispensable for an independent society.
People have given the government the power to rule over them and certain rights are kept beyond their power to establish them as legal principles to be applied by the courts. Even after getting majority in legislature the government cannot trample upon them.
In M. Nagaraj v. Union of India, AIR 2007 SC 71, the Supreme Court has held that the Constitution has confirmed the existence of fundamental rights and given them protection. Individuals possess certain basic human rights independently of any Constitution by reason of the fact that they are humans. In Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 Supreme Court observed that fundamental rights are intended not only to protect individual's right but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution.
Fundamental Rights have been kept at a higher pedestal in comparison with other rights by virtue of Article 13. It provides that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with fundamental rights shall be void. It clearly means that other rights guaranteed by ordinary laws are subservient to fundamental rights. They cannot be in violation of fundamental rights. In case of any conflict between other rights and fundamental rights, the latter shall prevail.
Part III of the Constitution of India contains Fundamental Rights. These have been also termed as Magna Carta of India. Certain essential fundamental rights are entrenched in Indian Constitution. Entrenchment means that the guaranteed rights cannot be taken away by an ordinary law. A law curtailing or infringing fundamental right would be declared as void.
In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 the Supreme Court observed that fundamental rights represent the basic values cherished by the people of India and they protect the dignity of an individual and create conditions in which every human being can develop his personality to the fullest extent.
In Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1 Supreme Court held that fundamental rights have two aspects, firstly, they act as a fetter on plenary legislative powers and secondly, they provide conditions for fuller development of people. The aim of the inclusion of these rights in the Constitution is to protect the values which are indispensable for an independent society.
People have given the government the power to rule over them and certain rights are kept beyond their power to establish them as legal principles to be applied by the courts. Even after getting majority in legislature the government cannot trample upon them.
In M. Nagaraj v. Union of India, AIR 2007 SC 71, the Supreme Court has held that the Constitution has confirmed the existence of fundamental rights and given them protection. Individuals possess certain basic human rights independently of any Constitution by reason of the fact that they are humans. In Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 Supreme Court observed that fundamental rights are intended not only to protect individual's right but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution.
Fundamental Rights have been kept at a higher pedestal in comparison with other rights by virtue of Article 13. It provides that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with fundamental rights shall be void. It clearly means that other rights guaranteed by ordinary laws are subservient to fundamental rights. They cannot be in violation of fundamental rights. In case of any conflict between other rights and fundamental rights, the latter shall prevail.
Amendability of Fundamental Rights
Through a series of judicial pronouncements it has been settled now that the Fundamental Rights can be amended by the Parliament in exercise of the powers conferred under Article 368 subject to basic structure of the Constitution.(a) Before the decision in Golak Nath's case
In Shankari Prasad v. Union of India, AIR 1951 SC 458 the validity of Constitution (First Amendment) Act, 1951, curtailing the fundamental right to property was challenged. The basic argument against the validity of the amendment was that Article 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights. The word law' in Article 13 would include any law, even a constitutional amendment. Supreme Court held that power to amend the Constitution including the fundamental rights is contained in Article 368 and the word law' in Article 13(2) includes only an ordinary law made in exercise of the legislative power and does not include the constitutional amendment which is made in exercise of constituent power.Constitutional amendment will be valid even if it abridges or takes away any fundamental rights. Terms of Article 368 are completely general and empower the Parliament to amend the Constitution without any exception.
Subsequently in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 the validity of Constitution (Seventeenth Amendment) Act, 1964 was challenged. Supreme Court approved the majority judgment in Shankari Prasad's case and held that 'amendment of the Constitution' means amendment of all parts of the Constitution.
The majority refused to accept the argument that fundamental rights were eternal, inviolate and beyond the reach of Article 368. Court again held that only ordinary law falls within the ambit of Article 368 and not the constituent law.
(b) After the decision in Golak Nath's case and upto the passing of the Constitution 24th Amendment Act
In Golaknath v. State of Punjab, AIR 1967 SC 1643 the Supreme Court prospectively overruled its earlier decisions in Shankari Prasad's case and Sajjan Singh's case. The Court held that the Parliament had no power, from the date of decision, to away or abridge Fundamental Rights. The court observed that the amendment is law' within the meaning of Article 13(2) and therefore, if it violates any of the fundamental rights, it may be declared void. The word law' under Article 13(2) includes statutory as well as constitutional law. The court further held that Article 368 only deals with the procedure to amend the Constitution. Power to amend the Constitution is found in the residuary legislative power contained in Article 248 because such power is not expressly conferred by any Article in any legislative entry. Court held that fundamental rights occupy transcendental position in the Constitution and no authority functioning under the Constitution can take away the fundamental right.
(c) After the passing of the Constitution 24th Amendment Act.
The validity of 24th and 25th Constitutional Amendment Acts was challenged in the case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. The Supreme Court overruled the ruling in Golaknath's case and upheld the validity of both the Amendment Acts. It was held that the power to amend the Constitution is found in Article 368 itself. The court rejected the observation in Golaknath's case that the power to amend the Constitution is found in the residuary power of the Parliament. The court recognized that the distinction between the ordinary law and constitutional law. The Constitution makers did not use the expression law in Article 13 as including constitutional law. This means that Article 368 confers the power to abridge the fundamental right or any other constitutional right. To this extent Golaknath's case was overruled. The court recognized the power of Parliament to amend any part of the Constitution but this amending power was subject to one significant limitation i.e. Basic Structure. The power of amendment cannot be exercised in such a way so as to abridge, take away or destroy the Basic Structure of the Constitution. A constitutional amendment which offends the basic structure of the Constitution is ultra vires.The court recognized the power of Parliament to amend any part of the Constitution but this amending power was subject to one significant limitation i.e. Basic Structure. The power of amendment cannot be exercised in such a way so as to abridge, take away or destroy the Basic Structure of the Constitution. A constitutional amendment which offends the basic structure of the Constitution is ultra vires. The court gave an illustrative list of certain features which are regarded as Basic Structure of the Constitution. They are:
- Supremacy of the Constitution
- Republican and Democratic form of government
- Secular character of the Constitution
- Separation of powers between legislative, executive and the judiciary
- Federal character of the Constitution
This list is merely illustrative and it is for the courts to decide what is the basic structure/ feature of the constitution on the case to case basis.
To nullify the effect of Keshvanand Bharti's case clauses (4) and (5) were inserted to Article 368 by 42nd Constitutional Amendment, 1976. These clauses provided that amendment of the Constitution will not be called in question in any court and there shall be no limitation on constituent power of Parliament to amend any part of the Constitution. In Minerva Mills v. Union of India, AIR 1980 SC 1789 the Supreme Court struck down clauses (4) and (5) of Article 368 on the ground that it destroys basic structure of the Constitution as limited amending power is the basic structure of the Constitution. Later, Supreme Court in I.R. Coelho v. State of Tamil Nadu (2007) held that any law placed in 9th schedule of the Constitution after April 24, 1974, would be open to challenge in the court of law on the ground that it destroys the basic structure of the Constitution.
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💡PYQs on this topic :
Q. What do you understand by Fundamental Rights?
Q. How do they differ from other rights? Are they amendable?
Q. Refer to important Supreme Court decisions on Fundamental Rights.
Q. How fundamental rights differ from other legal rights -
(a) Before the decision in Golak Nath case.
(b) After the decision in Golak Nath case and upto the passing of the Constitution 24th Amendment Act.
(c) After the passing of the Constitution 24th Amendment Act.
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