In the light of Article 13 which forbids the State (the legislatures making laws and the executives, issuing ordinances) to make laws in contravention of Part III and if it does so, would invite invalidity. It is fair to hold the view that the courts, in particular the Supreme Court, act as the protector of the fundamental rights as enumerated in Part III of the Constitution. Two general questions with regard to the above, in particular, demand our attention: one, has the Supreme Court protected our fundamental rights; and second, if the Parliament resorts to amend the fundamental rights, can our Supreme Court challenge such amendments as affect our fundamental rights? With regard to the first question, it may be stated that the Supreme Court has, in more than one cases, protected our fundamental rights and has declared numerous acts and ordinances as void which contravened our fundamental rights, in addition to some others through which it protected and guaranteed them. As a protector and guarantor of our fundamental rights, the Supreme Court, as per a decision in Romesh Thapper v. State of Madras’1950, cannot refuse to entertain application seeking protection against the infringement of such rights.
“Though the Parliament had reversed the Supreme Court’s decision through 25th and 26th Amendments (1971), the apex court had earlier invalidated the government’s stand on bank nationalization and privy purses in Rustom Cavasjee v. Union of India (1970) and Madhavrao Shivajirao Scindia v. Union of India (1971) cases, declaring the government’s actions against Articles 14, 19(1)(f), 19(1)(g), 31(2) and 32. While in the Gopalan case (1950), the Supreme Court had held that the freedoms under Articles 19, 21, 22, and 31 are exclusive, it overturned its own stand in R.C. Cooper (1971) case saying that the fundamental rights conferred by Part III are not distinct and mutually exclusive rights, In the Maneka Gandhi v. Union of India (1978) case, the Supreme Court declared that no one shall be deprived of personal liberty and the right to life except according to the procedure prescribed by the law with attributes found the Article 19.
In Rudul Sah v. State of Bihar (1983), the Supreme Court ruled that compensation for illegal detention should be granted under Article 32 without affecting the petitioner’s right to sue for damages. In St, Stephen’s College v. University of Delhi (1992) case, the Supreme Court held that the minority aided educational institutions are entitled under Article 30(1) to accord preference in favour of or reserve seats for candidates belonging to their community to the maximum of 50 per cent of annual admissions. In the D.K. Basu v. State of West Bengal (1997) case, the Supreme Court set a number of measures to be observed by the police while securing the arrest of a person so as to prevent the abuse of power by police authorities. In another case, Vishaka v. State of Rajasthan (1997), the apex court set out guidelines for the protection of women from sexual harassement at workplaces. With regard to the second, it may be stated, that the Supreme Court did its job quite satisfactorily. In the Shankari Prasad v. Union of India, 1951, the constitutional validity of the first amendment (1951), which curtailed the right to property, was challenged.
“The Supreme Court ruled that the power of Parliament to amend the Constitution under Article 368 also included the power to amend the fundamental rights, while reversing its own position, in the Golaknath v. State of Punjab (1967), the Supreme Court held that the fundamental rights are immutable and hence the Parliament cannot abridge or take away any of the fundamental rights. Reacting to the 1967 verdict, the Parliament enacted the 24th Amendment (1971), asserting that the Parliament can abridge or take away fundamental rights, and that it has the power to amend the Constitution, including the fundamental rights. In the Kesavananda Bharati v. State of Kerala (1973) case, the Supreme Court upheld the validity of the 24th Amendment, saying that the Parliament can abridge or take away the fundamental rights by amending the Constitution.
But the apex court ruled that the amending power of the Parliament does not enable it to alter the ‘basic structure’ of the Constitution. “The 42nd Amendment (1976) authorized the Parliament to amend any part of the Constitution and emphasised that no amendment could be questioned in any court. “The Supreme Court, in the Minerva Mills v. Union of India (1980) and the Waman Rao v. Union of India’1981, and S.P. Gupta v. Union of India’1982 cases, took the position that the Parliament has the power to amend the Constitution, including the Fundamental Rights, but it is the Supreme Court which is the final interpreter of the Constitution which includes both the laws and the constitutional amendments declaring any law/amendment contravening the basic features as void.
