Wednesday, November 21, 2012

Nature of Fundamental Rights

The Fundamental Rights provide protection only against the State action and do not safeguard against the action of private individuals, except the rights pertaining to abolition of untouchability and the right against exploitation. In these two cases, fundamental rights are available both against the state and individuals.

The Fundamental Rights granted to individuals under the Constitution are not absolute rights. They are qualified rights in the sense that these rights are subject to reasonable restrictions imposed by the State, on their use and exercise in the name of national interest, security and general welfare of the society. Under the Constitution of India, more or less, every right is accompanied by elaborate restrictions and Parliament is further authorized to impose restrictions, provided such restrictions are reasonable and not arbitrary. It is for the Supreme Court and High Courts to decide whether the restrictions imposed are reasonable or not. Some of the grounds on which reasonable restrictions can be imposed are:

  1. Advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes;

  2. In the interest of general public, public order, decency or morality;

  3. Sovereignty and integrity of India;

  4. Friendly relations with foreign States;

  5. Security of the State.

The State may also deny some of the fundamental rights to a class of people as armed forces, para-military personnel, police etc., in the interest of administrative efficiency or national integrity etc. In addition to these, the President enjoys the power to suspend the enforcement of fundamental rights (except that relating Arts. 20 & 21) during the National Emergency. Critics allege this as one of the weakest points of Fundamental Rights. Thus, it is clear that the fundamental rights granted by the Indian Constitution are not absolute rights.

Nature of Fundamental Rights

Further, the fundamental rights may be divided into two groups - one in the nature of negative injunctions or negatively worded, prohibiting the state from doing certain acts and those in the nature of positive commandment or positively worded conferring certain benefits upon the individuals. Articles 14 -16(2), 18(1), 20, 22(1) etc., belong to the first group while 16(1), 19, 25, 29(1), 30(1) etc., represent the second category.

Although the Constitution of India provides six categories of fundamental rights but all of them do not carry equal weight. There is scaling of values among the fundamental rights. Generally, personal rights are preferred over other rights when any legislation is reviewed by the Court.


Judicial Review and the Fundamental Rights.

Judicial review is the power of superior courts (Supreme Court and the High Courts) to declare a law unconstitutional and void if it is inconsistent with any of the provisions of the Constitution to the extent of such inconsistency. So far as the contravention of the Fundamental Rights is concerned, this power is specially enjoined upon the courts by the Constitution, in Art. 13. The power of judicial review is available to the courts not only against the legislature but against the executive as well.


Amendability of Fundamental Rights.

Art. 13 clause 2 states that the State shall not make any "law" which takes away or abridges, the rights conferred by Part III of the Constitution and any law made in contravention to Art. 13(2) shall, to the extent of contravention, be void. The question is, whether the word "law" as used in Art. 13(2) include Constitutional Amendment Act or not? If an Amendment Act is not covered under "law", then Parliament can amend any or all the fundamental rights; otherwise the fundamental rights are unamendable. The Supreme Court starting from Shankari Prasad vs. Union of India (1951) to Sajjan Singh vs. State of Rajasthan (1965), held in a number of cases that the word "law" as found in Art. 13(2) should be taken to mean 'rules or regulations made in exercise of ordinary legislative power' and not to 'Amendments to the Constitution made in exercise of constituent power' of the Parliament. The Supreme Court, therefore, was of the view that Parliament by exercising its amending power under Art. 368 conferred on it by the Constitution can amend any part of the Constitution including Part III. But in Golaknath vs. State of Punjab (1967) case, the Supreme Court overruled its earlier decision and held that the Fundamental Rights embodied in Part III, had been given a 'transcendental position' by re Constitution, so that no authority functioning under the Constitution, including Parliament exercising its amending power under Art. 368 was competent to amend the Fundamental Rights. The Court was of the view that the word 'law' in Art. 13(2) included amendment to the Constitution as well. But by the 24th Amendment Act, 1971, Parliament amended Arts. 13 and 368 to make it clear that Parliament has the power to amend any part of the Constitution including Part III and the word "law" as used in Art. 13 does not include a Constitutional Amendment Act. Among other thing, the 24th Amendment Act was challenged before the Supreme Court in the Kesavananda Bharati vs. State of Kerala case in 1973. The Court in that case held that Parliament has the power, under Art. 368, to amend any provision of the Constitution, including the fundamental rights enshrined in Part III of the Constitution. However, the Court held that the Parliament's amending power is subject to the basic structure of the Constitution. The concept of basic structure of the Constitution is nowhere found in the Constitution. It is a judicial innovation and was given its shape by the Supreme Court in the Kesavananda Bharati vs. State of Kerala case (1973). The Court held, that if an amendment Act passed by the Parliament, destroys the basic structure of the Constitution, then to the extent of its destruction the Act would be void. However, the court is yet to define or clarify as to what constitutes the basic structure of the constitution. From the various judgments the following have emerged a basic features of the constitution which include supremacy of the constitution, sovereign, democratic and republican nature of Indian polity, secular character of the constitution, separation of powers between the legislature, the executive and the judiciary, free and fair elections, judicial of law, unity and integrity of the nation, welfare state (socio-economic justice), parliamentary form of Government.


Rule of Law

Rule of law is an integral feature of a democratic polity or Constitution. The most clear and accepted exposition of rule of law was given by A. V. Dicey that originated in England. According to him, the basic principles of rule of law are:

(a) No person can be punished or made to suffer in body or goods except for the violation of law. Such a violation must be established in an ordinary court of the land in an ordinary legal manner.

(b) It also implies that no person is above law and all persons are subject to the ordinary law of the land without any distinction of rank or position and are subject to the jurisdiction of the ordinary courts.

(c) The Constitution is the Supreme law of the land and all laws passed by the Legislature must conform to the provisions of the Constitution.

Under the Indian Constitution, the concept of rule of law finds expression in Article 14 which emphasizes the legal equality or equality before law. The Supreme Court of India has placed rule of law as under Art. 14, in the category of 'basic feature' of the Constitution

However, the President, Governor, foreign diplomats, ambassadors representing foreign governments etc. are exceptions to the practice of rule of law in India.

Natural Justice

There are some basic rules to the concept of natural justice.

(a) No person can be a judge in his own cause.

(b) Both sides must be heard.

(c) There should be no bias and the authority must act honestly and in an impartial manner.


Classification of Fundamental Rights.

The Constitution itself classifies the Fundamental rights under six groups. These are:

(1) Right to Equality (Arts. 14-18);

(2) Right to Freedom (Arts. 19-22);

(3) Right against Exploitation (Arts. 23-24);

(4) Right to Freedom of Religion (Arts. 25-28);

(5) Cultural and Educational Rights (Arts. 29-30); and

(6) Right to Constitutional Remedies (Arts. 32-35).


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