Fundamental Rights

Part III of the Constitution with Articles 12 to 35 relates to the Fundamental Rights. Articles 12, 13, 33, 34 and 35 are general clauses which deal with certain aspects of Fundamental Rights. Articles 33 and 34 are those which empower the Parliament to modify fundamental rights in their application to the armed forces and give power to the Parliament to restrict them while the martial law is in force in any area. Article 35 gives the exclusive power to the Parliament (and not to the States legislatures) to legislate with respect to clause 3 of Article 16(3) and of Articles 32, 33 and 34.

Article 12, being a general provision, denes the word ‘state’ to include the executive and Parliament, the executive and legislature of each state and all local or other authorities in India or all institutions under the control of the Government of India. The judiciary is not included in the word ‘first ate’ (see Naresh v. State of Maharashtra – 1967), for if it would, the High Courts/ Supreme Court would not be authorized to issue writs against the executive, legislature and the lower courts.

The Supreme Court has, through numerous decisions, specified certain determinants of the state, such as:

  • the funding source should be the state;
  • state’s deep and pervasive control,
  • functional character should be like that of the government,
  • the State’s power to transfer activities to an agency or corporation, and
  • exclusive monopoly rights conferred/protected by the state.

So considered, the Indian Oil Corporation is a state (Mahabir Auto Stores v. Indian Oil Corporation—1990), so is the Indian Council of Agricultural Research, the state (S.M. Ilyas v. ICAR—1993)— the Council of Scientific and Industrial Research (CSIR) is also a state. But the State Council of Educational Research and Training (SCERT) is not a state (Lt. Governor of Delhi v. Sodhi—2007) because the court cannot issue the writ of mandamus to SCERT and compel it to extend the said writ to its employees; nor is Assam Cooperative Society receiving grants from the state of Assam (State of Assam v. Barak Upatyaka and others—2009) is a state because the society cannot ask the government to extend the grant to pay salaries/allowances to the society’s employees.

Article 13 clearly says that the laws inconsistent with or in derogation of the fundamental rights would stand void. It further says that the State would not make any law which takes away or abridges the rights and any law made in contravention of this clause, would stand void. Furthermore, it says that nothing in this article (i.e., Article 13) would apply to any amendment of this Constitution made under Article 368, the italic part was added by the 24th amendment in 1971. The courts have faithfully protected this article till the Parliament intervened through making certain amendments. It may, however, be remembered that Article 13 is not retrospective in its effects. Furthermore, the doctr ine of severability relates to only offending provision, and not to the whole statute (Motor General Traders v. State of Andhra Pradesh—1984), and the doctrine of eclipse does not mean complete nullity, but only dormant in relation to the citizens, and not in relation to the non-citizens (State of Gujarat v. Sri Ambica Mills—1974).

In the past, not only the question of amendability of the Fundamental Rights had become a topic of heated controversy between the Supreme Court and the Parliament, but the whole question of Parliament’s power to amend the Constitution took the nation into a state of surprise, if not shock. In Golak Nath v. State of Punjab—1967, the Supreme Court held the view that the Parliament had no power to even amend the Constitution, for Article 368 only prescribed the procedure of amendment and not the power of the Parliament to amend the Constitution. The Parliament, through 24th amendment (1971) increased its power to amend the Constitution. In the Kesavananda Bharat i v. State of Kerala—1973, the Supreme Court, while upholding the validity of the 24th amendment, laid down the theory that there were certain, basic, features which could not be amended under the amending power (Article 368).

But thereafter the Parliament sought resort in the 42nd amendment—1976, during the 1975 emergency period, and obtained unlimited power to amend the Constitution while depriving the court any power to question the amendment. The Supreme Court, on its own part, held, in the Minerva Mills Ltd. v. Union of India—1980, that there would be no limitation on the constituent power of Parliament to amend, by way of alteration, variation or repeal, the provisions of the Constitution under Article 368, a constitutional amendment which relates to a basic feature (e.g. total exclusion of judicial review) would be void. The cases such as Wamman Rao v. Union of India—1981, Bhim Singhji v. Union of India—1982, have held the same view as stated in the Minerva Mills case.

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