FUNDAMENTAL RIGHTS - History of fundamental rights, Article 12 & Article 13

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FUNDAMENTAL RIGHTS



  •     Known as Manga Carta of India.
  •  Taken from the US Constitution

History of fundamental rights :-

* The original right developed with the magna carta signed by Emperor John of Britain (1215 AD).

* In France in 1789, the people were given basic rights through the Declaration of Rights of Man and citizens.

* In America, the Fundamental Rights were added to the Constitution in 1791 AD from the bill of rights.

Note: - America is the first country to add fundamental rights to the constitution.


# Demands arising from time to time in India: -


- First through the Constitution Bill 1895.

- 1925 by Annie Besant through the Common Wealth of India Bill.

- Through the Nehru Report in 1928.

- Through the Karachi session (Vallabhbhai Patel) in 1930.

Two Committees constituted by the Constituent Assembly: -

1.     Fundamental Rights and Minority Consultative Committee (54 members) - Vallabhbhai Patel

2.     Sub-Committee for Consultation on Fundamental Rights and Minority Rights - J.P. B. Kripalani


Constitutional Status: -



Article 12 - Definition of the state

 "State" includes the Government and Parliament of India and the Government and Legislature of each of the States and all local and other authorities within the territory of India or under the control of the Government of India.

Local authorities - Municipalities, Gram Panchayats, District Boards etc.
From time to time, various following units added to local and other authority by judicial decisions are also the state.

  • Life Insurance Corporation
  •  The university
  •  Legal person like legal corporation etc.
  •  Bharat Petroleum Corporation
  •  Indian Statistical Organization
  •  Government aided school which receives 95% grant from the government
  •  Food Corporation of India
  •  Railway board
  •  Chief Justice (when appointing other authorities of the court)
  •  President (when he issues orders under Article 359)
  •  BSNL
  •  ONGC
  •  SAIL
  •  UPSC etc.
The following are not included in the definition of the state -
  • ICICI Bank
  • NCERT
  • BCCI
  • Waqf board
  • Court
  • Private universities (which do not receive government grants) etc.

Article -13

Ø The state cannot make any law that amends or abolishes fundamental rights.

Ø The court has the power of judicial review.

Article 13 (1) - Just before the enactment of the Constitution, the laws which are incompatible with Part 3, shall be void or become ineffective. But it will be applicable for earlier transactions.

Article 13 (2) - Any law made by the post-constitutional laws i.e. the Legislature shall be void to the extent of infringement of fundamental rights.

# Doctrine of eclipse: -

Bhikhaji Narayan v. State of Madhya Pradesh Case (1955): - Pre-constitution inconsistent with basic rights or non-constitutional laws which are incompatible with fundamental rights will be covered (become dormant). Such a method is re-applied as soon as the cover is removed in future.

Deep Chand Case 1959: - Post-constitutional or extra-constitutional laws which are incompatible with fundamental rights should be abolished completely.

Ambika Mill Case 1974: - Post-constitution or non-constitutional laws which are inconsistent with fundamental rights should not be completely abolished.

# Doctrine of Severability: -

An Act whose parts violate the Fundamental Rights, in such a case, that part shall be removed without abolishing the original objectives of that Act. The Act is divided into two parts, valid and illegal.

# Doctrine of Waiver: -

Bishweshwarnath v. Income Tax Commissioner 1959 Case - No person can relinquish fundamental rights under any circumstances. Because he has these rights not only for personal interest but he has been included in the constitution for the whole society and public interest.

Article 13 (3) - Definition of law -

"Law" includes any ordinance, order, bye-law, rule, regulation, notification, convention or practice having the force of law in the territory of India.

Article 13 (4) - Added by the 24th Constitution Amendment (1971) and the Constitution Amendment excluded from the "law" defined in Article 13.

Important Cases related to Article 13: -

1. Shankari Prasad v. Union of India 1951 - The statutory amendment made under Article 368 is not a law within the meaning of Article 13. That is, Parliament can amend the fundamental rights.

2. Sajjan Singh vs State of Rajasthan 1965: - The status of Shankari Prasad Case was kept unchanged.

3. Golaknath v. State of Punjab 1967: - Constitution amendment is considered as law within the meaning of Article 13. That is, Parliament cannot amend fundamental rights.

4. 24th Constitution Amendment 1971: - "Constitution Amendment Law" was excluded from the law defined in Article 13.

5. Keshavanand Bharti v. State of Kerala 1973 (13 Judges) - CJI SM Sikri, 24th Constitution Amendment was held to be valid and it was decided that the Constitution Amendment should not be considered as a law within the meaning of Article 13. Therefore, Parliament can amend the Fundamental Rights but this does not affect the basic structure of the Constitution. The underlying structure will be decided by the Supreme Court from time to time.

Note: - The Preamble was considered an integral part of the Constitution.

Basic structure: -

  • Democratic republic
  • Secularism
  • Federal government
  • Power Differentiation theory
  • Judicial review
  • The supremacy of the constitution (rule of law) - it was added to the Minerva Mill Case.

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