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JUSTICIABILITY OF FUNDAMENTAL RIGHTS

Author: Pooja Maheshwari, II year of B.A., LL.B.(Hons.) from PIMR (Department Of Law)



Justiciability of Fundamental rights means the rights given under part III of the Indian Constitution can be enforceable. In case of violation of any of the Fundamental rights, one can go to the High Court or Supreme Court for the protection of the Fundamental Rights.


Fundamental rights are very important because they safeguard the interest of the people, and due to this they are considered as the backbone of the country. Article 13 talks about the Justiciability of Fundamental rights; any law violative of Fundamental Right can be void.” Article 13 provides for Judicial review” for all legislations in India, post as well as future”. It not specifically talks about just laws, but also ordinance, orders, regulations, notifications, etc.


Indian constitution is supreme. It means ‘Supreme of the constitution’ i.e., all laws must be in accordance with the provisions of the constitution. Parliament, while passing a legislature must act in strict adherence to the specific mandates of the constitution. In other words, Article 13 of the constitution envisages supremacy of the constitution.


Fundamental rights are the basic human rights in our Indian Constitution which no one can amend. Article 13 of the Indian Constitution does uphold the supremacy over the Indian Constitution and to lead the way of judicial review. This article does enable us to review the pre-constitutional and post-constitutional laws.


Meaning and Scope

Through Article 13 none of the state legislature and the parliament can make any law which is violative of the fundamental rights. The laws which violate the Fundamental Rights are void. Also, talk about the pre-constitutional and post-constitutional laws.


· Article 13(1) talk about Pre-constitutional laws-

Article13(1) declares that all laws in force in the territory of India immediately before the commencement of the constitution shall be void to the extent to which they are not compatible with Fundamental right under part III of Indian constitution.


· Article13(2) talk about Post-constitutional laws-

Article 13(2) prohibits the state to make any law, which takes away right conferred by part III of the Indian constitution. If the state makes such a law, it becomes void.


Introduction to Article 13

According to Article 13 of Indian constitution: “laws inconsistent with or in derogation with Fundamental Right are void”

13(1) – All laws in force in the territory of India immediately before the commencement of this constitution, insofar as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.

13(20) – The state shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause, shall, to, the extent of such contravention, be void.


13(3) – In this article, unless the context otherwise requires-

1. “laws” includes any ordinance, order, bye-laws, rule, regulation, notification, custom or usage having in the territory of India the force of law;

2. “laws in force” includes laws passed or made by the legislature or other competent authority in the territory of India before the commencement of this constitution and not previously replaced, notwithstanding that any such law or any part thereof may not be then in operation either at all or in a particular area.

13(4) – Nothing in this auricle shall apply to any amendment to this constitution made under Article368.


By virtue of the comprehensive nature of the term ‘ law’, it also includes subordinate legislation, rules, regulations and orders made by the government. A mere executive order or administrative order, however, would not come within the purview of the law. Similarly, statutory notifications would be law in force whereas executive notification would not. Hence, not only enacted law or legislation, but any ordinance, order, by-law, rule, regulations, notification, custom or usage may


In Bhau Ram VS. Baij Nath (AIR 1962 SC 1476) - the Supreme Court has that the personal laws such as Hindu law, Muslim Law and Christian Law are excluded from the definition of ‘law’ for the purpose of Article 13 as the expression ‘personal law’ is not used in Article 13 though it is included in item 5 in the concurrent List-List III of the schedule seventh of the constitution. It has been decided that the personal laws do not fall within Article 13(1) at all.

In the Edward Mills VS. Ajmer (AIR 1955 SC 25) – the Supreme Court has held that the expressions ‘law in force’ and ‘exciting law’ bear the same meaning.


Law and Laws in Force

According to Article 13(1) (a), the term ‘law’ includes “any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. However, it was held that the personal law such as Hindu law or Muslim law is not covered by the term ‘law’ under Article 13 (State of Bombay VS. Narayan, AIR 1952 Bm. 84).


The expression ‘law in force’ under Art. 13 (3) (b) includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of the constitution not previously repealed. It includes customs and usage and also the laws passed by the British Parliament and applicable to India like the Fugitive offenders’ Act, 1881.


In view of the provisions enriched in Article 13 of the Constitution the following doctrines have formulated:

1. Doctrine of the Severability

2. Doctrine of Eclipse; and

3. Doctrine of Waiver.


1 . Doctrine of Severability

Article 13(1) of the constitution declares that “all laws in force within the territory of India, immediately before the commencement to this constitution, which is inconsistent with the fundamental rights under Part III, shall be void to the extent of such inconsistency”.


Here, the question arises, Whether the whole statue is to be declared void or that part of the statue inconsistent with part III alone shall be declared void?

The Doctrine says that if some part of the statute is inconsistent with that of the Fundamental Right, then, the whole statute would not be declared to be void; that particular clause would be treated to be void by the court of law.


In the case, A.K. Gopalan VS. Madras (AIR 1950 SC 150) - Supreme Court struck down section 14 of Preventive Detention Act, 1950 on the ground that it is violative of Fundamental Right guaranteed under art.22 of the Indian Constitution. Thus the court applies the doctrine of severability, so the whole act would not be declared as void but only section 14 the act declared void which is inconsistent with Fundamental Right.


In Minerva mills, LTD. VS. Union of India (AIR 1980 SC 1789) - The Supreme Court struck down section 4 and 55 of the constitution (42 Amendment)Act, 1976 as ultra vires i.e., beyond the amending power of the parliament. These two sections were declared void and severed from the act so as to make the remaining part of the constitution valid.


2. Doctrine of Eclipse

Where a statute is found inconsistent with the provisions of the Fundamental Rights, such statute may be declared void. However, such a statue is not void-ab-initio. It cannot become void/dead unless it is abolished by the Parliament and the statue (passed before the constitution) can be removed by the amendment to that effect (after the commencement of the constitution) so that the statue becomes valid and enforceable.


In case Bhikaji Narain Dhakras VS. State of MP (AIR 1955) – Supreme Court held that any existing law inconsistent with Fundamental Rights, which become in-cooperative from the date of the constitution is not dead totally. It is only overshadowed by the Fundamental Right. This interpretation is an illustration of the application of the doctrine of the eclipse.


In Mahendra lal Jain VS. State of UP – Supreme court held that the Doctrine of eclipse only applies to the pre-constitutional law and not to post-constitutional law.


However, there is the exception in case of the State of Gujarat VS. Ambika Mills – the law which takes away the Fundamental Right is void and is applicable only against the citizen.


Thus a post-constitutional law which takes away the Fundamental Right is not void in all cases and for all-purpose such a law will be void and ineffective only against citizens but will be valid against non-citizens as only the citizens have the Fundamental Right.


However, this doctrine says that all the pre-existing constitutional laws are to be filled out in respect with that of the Fundamental Right so as to make them valid and the laws which do not respect the fundamental rights would not be declared void completely but would be overshadowed by fundamental right and in future, if any amendment is made related to such a law, it becomes valid provided that the pre-constitutional law must be consistent with that of the fundamental right.


3. Doctrine of Waiver

The doctrine of waiver speaks about the voluntary wave of existing legal rights or privilege. Now, the question arises – whether the fundamental right can be waived?

An individual/citizen cannot waive his fundamental rights. The doctrine of waive cannot be applied to a fundamental right.

In case of Olga Tellis VS. Bombay Corporation it has been observed that there cannot be the estoppels against the constitution and therefore, a person cannot be treated to love waived any of the Fundamental right contained in part III of Indian Constitution.


Whether an amendment of the constitution amounts to the law under article 13 (2)?

Article 368 of the constitution, empowers the parliament to amend the provisions of the constitution. Now, the question is, whether an amendment of the constitution amounts to /constitute ‘law’ under article 13 (2) of the constitution?

This question first arose in Shankari Prasad VS. Union of India (AIR 1951 SC 458) - Supreme court, in this case, held that the word ‘law’ in article 13(2) does not include the law/amendment made by the parliament under article 368.

However, the above decision was overruled by the Supreme Court in Golaknath VS. State of Punjab (AIR 1976 SC 1643) – this decision resulted in certain problems.


In order to remove the uncertainty created by the Golaknath’s decision, the constitution (24 amendments) Act,1971 was passed and a new clause(4) added to article13. Article 13(4) makes it clear that the constitution amendment shall not be considered as ‘law’ under article 13.

Finally, the Supreme Court in Kesavananda Bharati VS. State of Kerala (AIR1973 SC 146) upheld the validity of the constitution (24 amendments) Act, 1971 and overruled the decision of Golaknath’s Case.


Conclusion

Article 13 of the Indian constitution upholds supremacy over the Indian Constitution and it leads the way to judicial review. Although the intervention of judiciary in the constitutional matter is a debatable topic, yet in most of the cases, the power of the judiciary is considered to the supreme and is summoned to guard and enforce the Fundamental Rights guaranteed in part III of Indian Constitution.


Endnotes:

1. http://www.legalserviceindia.com/legal/article-3491-article-13-of-indian-constitution-an-overview.htmlhttps://www.legalbites.in/meaning-of-law-under-article-13/

2. https://indiankanoon.org/doc

3. https://en.m.wikipedia.org/wiki/Article_13

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