Constitutional Fundamental
Rights in it’s different forms
Fundamental Rights have been
provided in the Indian constitution in different forms. In some cases there is
an express declaration of rights, e.g., Articles 29 (1), 30 (1), 25, 26 and 32.
Some rights are declared as prohibitory without any reference to any person or
body to enforce them, e.g., Articles 28 (1), 23 (1) and 24. Some of these
rights take specific forms of restriction of state action, e.g., Articles 14,
15, 16, 20, 21, 22, (1), 27 and 28. A few of the Articles authorise the state
to make laws in derogation of the fundamental rights, e.g., Articles 15 (4), 16
(3), 16(4), 16 (5), 23 (3), 22 (6), 25 (2), 28 (2) and 28 (3). Some of them are
also given the form of positive declaration and simultaneously providing for
the imposition of restrictions of those rights, e.g., Articles 19 (1) and 19
(2) to 29 (6). The declaration of fundamental rights does not follow a uniform
pattern. They seek to protect the rights of individuals or groups of
individuals against the infringement of those rights within specific limits.
The constitution declares that the state shall not make any law which takes
away or abridges the fundamental rights and such laws to the extent of
inconsistency shall be void. In this sense, the fundamental rights operate as
limitations on the exercise of power of parliament and state legislatures.
The twenty-fifth amendment of the
constitution in 1971 and Forty- second amendment of the constitution in 1976
enhanced the importance of directive principles by giving precedence to them
over the fundamental rights. Minerva Mills Ltd. y. Union of India,AIR1980SC1789
the change made in Article 31-C by which primacy was given to all Directive
Principles of state policy over fundamental rights by the forty-second
amendment in 1976, was struck down. The result is that the power of parliament
has been limited to framing of laws to enforce only two Directive Principles.
Articles 39 (b) and 39 © even if they violate the fundamental rights enshrined
in Articles 14, 19 and 31. The result is that Article31-C has not been struck
down as such but the attempt to enlarge its scope in 1976 has been nullified.
A question
has been asked why these rights are called fundamental rights when they can be
restricted or deleted by an amendment of the constitution and can also be
suspended by a Proclamation of Emergency. The answer is that these rights are
called fundamental rights because they are the most essential for the
attainment by the individual of his full moral and spiritual stature. The
denial of these rights will keep his more and spiritual life stunted and his potentialities
undeveloped. To quote D.K. Sen, “Fundamental Rights are those tights of liberty
and property which are essential to the development of man as an individual. A
fundamental right does not therefore merely mean a right of liberty which
enables an individual to develop his faculties in his interest and in the
interest of the community as a whole”. (A Comparative study of the Indian
constitution, Vol. II, p. 188).
In cases like
those of Maneka Gandhi, Sunil Batra, Hoskot and Hussainara Khatoon, one finds a
new trend in the Supreme Court. In the case of Maneka Gandhi, the Supreme Court
took the view that the provisions of part III of the constitution should be
given widest possible interpretation. In the case of A.K. Gopalan, the court
took the view that article dealt with separate rights and there was no relation
between one another. They wee mutually exclusive. This view was rejected in the
case of Maneka Gandhi. The constitution. “Their waters must mix to constitute
that grand flow of unimpeded and impartial justice. Isolation of various
aspects of human freedom for purposes of their protection, is neither realistic
nor beneficial but would defeat the objects of such protection”
Doctrine of judicial review
The doctrine
of judicial review was propounded for the first time by Chief justice Marshall
of the Supreme Court of America in Marbury v. Madison. In that case, Chief
justice Marshall held that all those who framed written constitutions
contemplated them as forming the fundamental and paramount law of the nation
and hence the theory of every such Government must be that an Act of
legislature repugnant to the constitution is void and “it is emphatically the
province and duty of the judicial department to say what the law is”.
While the
America constitution did not make any provision for judicial review there is an
express provision for it in the India constitution. In the case of A.K. Gopalan
vs State of Madras, Chief Justice Kania observed thus: “In India it is the
constitution which is Supreme and that a statute law to be valid, must be in
all conformity with the constitutional requirements and it is for the judiciary
to decide whether any enactment is constitutional or not”.
The doctrine of judicial review is a special
characteristic of the Indian constitution. This doctrine means that the courts
have the power to scrutinise laws and executive acts and test their conformity
with the constitution and strike them down if they are found to be inconsistent
with it. Article 13 (2) of the constitution. Article 124 (6) enjoins a judge of
the supreme court to faithfully abide by his oath or affirmation to uphold the
constitution.
It is therefore the duty of the supreme court
to protect the fundamental rights against any encroachment or infringement by the
state. The power of judicial review is necessary in a federal system because
there is the necessity to decide in a dispute between the centre and the units
with regard to the scope of the powers granted to them by the constitution.
The constitution of the United
states does not expressly confer the power of judicial review on the courts.
The Supreme Court of the united states assumed this power to itself. It was
Chief Justice Marshall who emphatically asserted this great power for the first
time in the famous case of Marbury vs Madison1Cranch137:2Led60(1803). It was
held in that case that it was the duty of the Supreme Court to declare a
statute void if it was repugnant to the constitution. The Indian constitution
is unique as it expressly confers the power of judicial review on the Supreme
Court of India and the High Court.
Judicial review is
frequently resented because both the legislatures and the executive assert that
vital questions of public policy ought to be determined not in the cloistered
atmosphere of the Supreme Court or of the High Court but on the floors of the
parliament or state legislatures. There is always the possibility of the abuse
of the power of judicial review and social welfare legislation passed by a
progressive legislature might be set aside as unconstitutional by a
conservative judiciary. In spite of that, the framers of the Indian
constitution provided for judicial review. On the whole, the system has worked
well. The Supreme Court has exercised its power of judicial review with
restraint.
Separation of powers
Unlike the united states, the doctrine of
separation of powers in its rigid form is not to be found in the Indian
constitution. In the united states, all legislative power is “vested” in the
president and the judicial power is “vested” in one Supreme Court and in such
inferior courts as congress may from time to establish.
In a lecture delivered on
August 21, 1976, Sardar Swaran Singh observed: “By inserting the word ‘Socialist’,
it is intended to give a positive direction to the Government in formulating
its policies. The objective of social and economic justice and its fulfilment
are basic to bring about far-reaching socio-economic changes to which we stand
committed. The place of primacy that is now proposed should be given to the
Directive Principle of state policy; our fundamental rights will enable
acceleration of the pace. In his inaugural address delivered at the convention
of constitutional Amendments in New Delhi on October 16, 1976,
In state of
Kerala v. R Jacob Mathew, it was held that Ezhavas, Muslims and Latin catholic
inclusive of Anglo-Indians in the state of Kerala constitute “socially and
educationally backward classes of citizens” within the meaning of Article 15
(4) and reservation of seats for them by the state of Kerala’s order dated June
7, 1963 in the Medical Colleges in the state cannot be considered as a
violation of Article 14 of the constitution
instrumentality or agency of the Government
In R.D.
Shetty v. International Airport Authority of India, the Supreme Court held that
the International Airport Authority of India was a state within the meaning of
Article 12. The Supreme Court laid down the following criteria to determine
whether a corporation was the instrumentality or agency of the Government or
not;
1.
If the entire share capital of the corporation
is held by the Government, it goes a
long way towards indicating that the corporation is an instrumentality or
authority of the Government.
2.
Where the financial assistance of the state is
so much as to meet almost entire expenditure of the corporation, it affords
some indication of the corporation being impregnated with Government character.
3.
Where the corporation enjoys monopoly status
which is state conferred or state protected.
4.
Existence of deep and pervasive state control
may afford an indication that the corporation is a state agency or
instrumentality.
5.
If the functions of the corporation are of
public importance and closely related to Government functions, it is a relevant
factor in classifying a corporation as an instrumentality or agency of
Government.
6.
If a Department of Government is transferred to
a corporation, it is a strong factor supporting the inference that the
corporation is an instrumentality or agency of the Government.
. Secularism
Secularism is
not anti- God or atheism. The state in a free society has to refrain from
interfering with matters which are religious, that is, non- secular matters
except to the extent that such interference is justified on the ground of
public interest interest and the general good. Such a state guarantees
individual and corporate religious freedom and deals with an individual as its
citizen irrespective of his faith and religious belief. The state is not
connected with any particular religion. what we mean by secularism is that we
“have respect for all religious and equal respect for all. Respect for religion
does not depend on the number of the people that follow the religion. All
religions in this country, however small their strength may be, have the same
status and same prestige and same support from the state.” on the same
occasion, Union Law Minister H.R. Gokhale defined the concept of secularism in
these words: “There will be freedom liberty of faith and worship; whatever
religion you belong to, is all what you mean by secularism. All that does mean
is that the state will not have anything to do as a state with any religion
except to treat every religion equally, but the state will not have any foundation
of religion.”
Justice is
essentially an other- regarding virtue. It recognises the independence or
separateness of other individuals. It is concerned with the procedures and
outcome and with consequences of actions and their significance. About social
justice, it is said that every man should stand or fall on his own individual
merit or capacity and should not ask for free help from anybody.
The preamble
secures to all citizens equality of status and opportunity. This is provided by
the prohibition of artificial restrictions on the grounds of religion, race,
sex, colour, place of residence etc. Untouchability has been abolished and its
practice has been made penal. All titles have been abolished. Equality of
opportunity is provided by the guarantor
of law. There is no discrimination in the matter of public employment. The
terms of Article 16 of the constitution are emphatic on this point.
Fraternity
The concept
of fraternity was borrowed from the French constitution. Fraternity means a
sense of common brotherhood of all Indians. It is the reciprocal affection
which inclines man to do unto others as he would that others would do unto him.
It is the principle which gives unity and solidarity to social life. It may be
difficult to achieve, but without it both liberty and equality will be no
deeper than coats of paints. It is necessary to cultivate a feeling of
fraternity among the people if India is to survive as a nation. While dealing
with the duties of man, Mazzini wrote thus:-
“All
privilege is violation of equality. All arbitrary rule is violation of liberty.
Every act of egotism is a violation of fraternity.”
Ambit power
and jurisdiction to issue a writ under Article 226
The writ of certiorari
lies only to remove and adjudicate upon the validity of judicial Acts and the
expression judicial Act may include quasi judicial functions. The same is
issued on the ground of want of jurisdiction or excess of jurisdiction or
failure to exercise jurisdiction, violation of procedure or disregard of
principle of natural justice and error of law apparent on the face of the
record. The writ of prohibition is distinct in as much as it is issued of the
different stage of proceedings. The person against whom proceedings were taken
can move the High Court for binding the interior Court or the tribunal for
continuing the proceedings. Thus the prohibition is for arresting the further
continuance of the proceedings while the writ of certiorari is a writ for
quashing after the authorities have terminated in a final decision. The writ of
mandamus is derived from the Latin word “we command” and the same is issued to
enforce a legal right to compel the respondent to do the performance of some
duty of a public nature created by the provisions of the constitution of a
statute or some rule of common law or restrain from doing something contrary to
it. A writ of mandamus is thus a writ as a rule which is dependant up on the
discretion of the Court to substitute it’s wisdom or discretion for that of the
person to whom the judgement in the mates: a question was entrusted by law. The
writ of quo-warranto is to prevent a person who has wrongfully usurped an
office from continuing in that office and the writ calls upon the under of the
office to show to the Court under what authority he holds the office.
The writ of habeas corpus has been
rightly considered for enforcement to its object of speedy release by judicial
decree of a person or persons who is or illegally restrained and thus it is an
essentially a procedural writ. The distinction is now clear that while the writ
of certiorari may be issued by the High Court requiring that the record of the
proceeding which have been terminated in a final decision is some cause or
matter pending be fore an inferior cause should be transmitted to the superior
Court to be dealt with there while the writ of prohibition is primarily
supervisory and the object of that writ is to restrain the court /tribunal from
exercising a jurisdiction which is not vested with then and to prevent them
from exceeding the units of their jurisdiction. The writ of quo- warrento is issued to have an inquiry as to the legal
authority of a person occupying an office while the habeas corpus is a highly
privileged writ to enforce Fundamental Rights in the Indian personal liberty.
law made void (Article 13)
In article
13, the term “law” includes any ordinance, order, bye- law, rule, regulation,
notification, custom or usage having in the territory of India the force of
law. The term “law in force” includes laws passed or made by a legislature or
other competent authority in the territory of India before the commencement of
the constitution and not previously repealed, notwithstanding that any such law
or any part there of may not be then in operation either at all or in
particular areas. Nothing in Article 13 shall apply to any amendment of the
constitution made under Article 368.
In state of
Madras v. V.G. Row AIR 1952 SC 196. Chief justice Patanjali Sastri wrote: “Our
constitution contains express provisions for judicial review of legislation as
to its conformity with the constitution, unlike in America where the Supreme
Court has assumed extensive powers of reviewing legislative Acts under cover of
the widely interpreted ‘due process’ clause in the Fifth and Fourteenth
Amendments. If then, the courts in this country face up to such important and
none too easy task, it is not out of any desire to tilt at legislative
authority in a crusader’s spirit, but in discharge of duty plainly laid upon them
by the constitution. This is specially true
as regards the fundamental rights as to which this court has been
assigned the role of sentinel on the qui vive”.
In
Kesavananda Bharati v. state of Kerala, (1973) 4 SCC 255: AIR 1973 SC 1461.
Khanna, J. made the following observation: “Judicial review has thus become an
integral part of our constitutional system and a power has been vested in the
High Courts and the Supreme Court to decide about the constitutional validity
of the provisions of the statutes. If the provisions of the statutes are found
to be violative of any Article of the constitution which is the touchstone for
the validity of all laws, the supreme Court and the High Courts are empowered
to strike down the said provisions.” As a matter of fact, the power of judicial
review was held to be one of the basic features of the Indian constitution.
Article 13
(1) cannot be read as obliterating the entire operation of the inconsistent
laws, or to wipe them out altogether from the statute book for to do so will be
to give them retrospective effect which, we have said, they do not possess.
Such laws exist for all past transactions and for enforcing all rights and
liabilities accrued before the date of the constitution. Keshavan Madhav Menon
v. state of Bombay, AIR 1951 SC 128:
In Ramesh
Thappar v. state of Madras, AIR 1957 SC 628: the Supreme Court observed, “Where
a law purports to authorise the imposition of restrictions on a fundamental
right in language wide enough to cover restrictions, both within and without
the limits provided by the constitution.
Where it is not possible to separate the two,
the whole law is to be struck down. So long as the possibility of its being
applied for purposes not sanctioned by the constitution cannot be ruled out, it
must be held to be wholly void.”
The Supreme
Court has laid down the following rules with regard to the doctrine of
severability:
1.
In
deciding whether parts of a statute are separable from the invalid part, it is
the intention of the legislature that is the determining factor. The test to be
applied is whether the legislature would have enacted the valid part if it had
known that the rest of the statute was invalid.
2.
If
the valid and invalid provisions are so inextricably mixed up that they cannot
be separated from one another, the invalidity of a portion must result in the
invalidity of the whole. if after striking out what is invalid, what remains is
in itself a complete code independent of the rest, it will be upheld
notwithstanding that the rest has become unenforceable.
3.
Even
when the provisions which are valid are distinct and separate from those which
are invalid, if, they all form part of a single scheme which is intended to be
operative as a whole, the invalidity of a part will result in the failure of
the whole.
4.
When
the valid and invalid parts of an Act are independent and do not form part of a
scheme but what is left after omitting the invalid portion is so thin and
truncated as to be in substance different from what it was when it emerged out
of the legislature, then also it will be rejected in its entirety.
5.
The
supportability of the valid and invalid provisions of an Act does not depend on
whether the law is enacted in the same section or in different sections. it is
not the form but the substance of the matter that is material and that has to
be ascertained on the relevant provisions therein.
6.
If
after the invalid portion is expunged from the Act what remains cannot be
enforced without making alterations and modifications therein, then the whole
of it must be struck down as void as otherwise it will amount to judicial
legislation.
7.
In
determining the legislative intent on the question of separability, it is
legitimate to take into account the history of the legislation, its object, the
title and the preamble to it.
In Mahendra
Lal Jaini v. state of Uttar Pradesh, AIR 1955 SC 781: the Supreme Court held
that the application of the doctrine of eclipse arises from the inherent
difference between Article 13 (1) and Article 13 (2) arising from the fact that
one is dealing with pre- Constitution laws and the other is dealing with the
post- Constitution laws. In one case the laws being not stillborn, the doctrine
of eclipse will apply. In the other case, the laws being stillborn, there will
be no scope for the application of the doctrine of eclipse.
In Basheshar
Nath v. Commissioner of Income Tax, Delhi. AIR 1959 SC 149. the petitioner
whose case was referred to the income Tax Investigation Commissioner under
Section 5 (1) of the Act was found to have concealed large amounts of income.
He entered into a settlement with the Department and agreed to pay in 1954 Rs 3
lacs in monthly instalments by way of arrears of tax and penalty. In 1955, the
Supreme Court in Muthiah v. Income Tax Commissioner AIR 1956 SC 269. held that
Section 5 (1) was ultra vires of Article 14.
QUASI-JUDICIAL
FUNCTIONS AS DISTINGUISHED FROM JUDICIAL
FUNCTIONS
A Quasi -
judicial function differs from a purely judicial function in the following
respects;
(i)A quasi-judicial authority has some of the
trappings of a court, but not all of them; nevertheless there is an obligation
to act judicially.
(ii)A lis
inter parties is an essential characteristic of a judicial function, but this
may not be true of a quasi-judicial function.
(iii)
A Court is bound by the rules of evidence and procedure
while a quasi- judicial authority is not.
(iv)
A court is bound by precedents, a quasi- judicial
authority is not.
(v)
A court can not
be a Judge in its own cause, while an
administrative authority vested with quasi - judicial powers may be a party to
the controversy but can still decide it.
ADMINISTRATIVE FUNCTIONS
The same are
residue of governmental functions that remain after legislative power and
judicial functions are taken away.
(i)
The
administrative order is generally based on governmental policy or expediency.
(ii)
In
administrative decisions, there is no legal obligation to adopt a judicial
approach to a question to be decided, and the decisions are usually subjective
rather than objective.
(iii)
An administrative authority is not bound by the rules
of evidence and procedure unless the relevant statute specifically imposes such
an obligation.
(iv)
An administrative authority can take a decision in
exercise of a statutory power or even in absence of a statutory provision’
provided such decision or act does not contravene provision of any law.
(v)
Administrative
functions may be delegated and sub -delegated unless there is a specific bar or
prohibition in the statute.
(vi)
While taking the decision, an administrative authority
may not only consider the evidence adduced by the parties to a dispute, but may
also use its discretion.
(vii)
An administrative authority is not always bound by the
principles of natural justice unless the statute casts such duty on the
authority, either expressly or by necessary implication or if it is required to
act judicially or fairly.
(viii)
An administrative order may be held to be invalid on
the ground of unreasonableness.
(ix)
An administrative action will not become a quasi-
judicial action merely because it has to be performed after forming an opinion
as to the existence of any objective fact.
(x)
The prerogative
writs of certiorari and prohibition are not always available against
administrative actions.
However, this
is a very difficult task,” where does is the administrative end and the judicial
begin?
“Duty to act judicially would, therefore, arise from
the very nature of the function intended to be performed. If there is power to
decide and determine to the prejudice of a person , duty to act judicially is
implicit in exercise of such power. On the whole the test of justifiability has
replaced that of classification of function as a determinant of the appropriateness of a decision for
judicial review
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