The Constitution of India Final
The Constitution of India Final
The Constitution of India Final
Part III of the Constitution is rightly described as the Magna Carta of India.' It
contains a very long and comprehensive list of 'justiciable' Fundamental Rights. In
fact, the Fundamental Rights in our Constitution are more elaborate than those
found in the Constitution of any other country in the world, including the USA.
The Fundamental Rights are guaranteed by the Constitution to all persons without
any discrimination. They uphold the equality of all individuals, the dignity of the
individual, the larger public interest and unity of the nation.
However, the right to property was deleted from the list of Fundamental Rights by
the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part
XII of the Constitution. So at present, there are only six Fundamental Rights.
1. Some of them are available only to the citizens while others are available to all
persons whether citizens, foreigners. or legal persons like corporations or companies.
2. They are not absolute but qualified. The state can impose reasonable restrictions on
them. However, whether such restrictions are reasonable or not is to be decided by the
courts. Thus, they strike a balance between the rights of the individual and those of the
society as a whole, between individual liberty and social control.
3. All of them are available against the arbitrary action of the state. However, some of
them are also available against the action of private individuals.
4. Some of them are negative in character, that is, place limitations on the authority of
the State, while others are positive in nature, conferring certain privileges on the
persons.
5. They are justiciable, allowing persons to move the courts for their enforcement, if and
when they are violated.
6. They are defended and guaranteed by the Supreme Court. Hence, the aggrieved
person can directly go to the Supreme Court, not necessarily by way of appeal against
the judgement of the high courts.
7. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but
only by a constitutional amendment act and not by an ordinary act. Moreover, this can
be done without affecting the basic structure of the Constitution.
8. They can be suspended during the operation of a National Emergency except the
rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed by Article 19
can be suspended only when emergency is declared on the grounds of war or external
aggression (ie, external emergency) and not on the ground of armed rebellion (i.e.,
internal emergency). (The suspension of fundamental rights during a national
Emergency is explained in detail in Chapter 16).
(a) Government and Parliament of India, that is, executive and legislative organs of the
Union government.
(b) Government and legislature of states, that is, executive and legislative organs of
state government.
(c) All local authorities,that is, municipalities, panchayats, district boards, improvement
trusts, etc.
(d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC,
SAIL, etc.
Thus, State has been defined in a wider sense so as to include all its agencies. It is the
actions of these agencies that can be challenged in the courts as violating the
Fundamental Rights. According to the Supreme Court, even a private body or an
agency working as an instrument of the State.
The term 'law' in Article 13 has been given a wide connotation so as to include the
following:
(b) Temporary laws like ordinances issued by the president or the state governors;
(c) Statutory instruments in the nature of delegated legislation (executive legislation) like
order, bye-law, rule, regulation or notification; and
Further, Article 13 declares that a constitutional amendment is not a law and hence
cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati
case (1973) that a Constitutional amendment can be challenged on the ground that it
violates a fundamental right that forms a part of the basic structure' of the Constitution
and hence, can be declared as void.
RIGHT TO EQUALITY
The concept of 'equality before law' is of British origin while the concept of 'equal
protection of laws has been taken from the American Constitution. The first concept
connotes: (a) the absence of any special privileges in favour of any person, (b) the
equal subjection of all persons to the ordinary Taw of the land administered by ordinary
law courts, and (c) no person (whether rich or poor high or low, official or non-official) is
above the law. (-concept).
The second concept, on the other hand, connotes: (a) the equality of treatment under
equal circumstances, both in the privileges conferred and liabilities imposed by the laws,
(b) the similar application of the same laws to all persons who are similarly situated, and
(c) the like should be treated alike without any discrimination. Thus, the former is a
negative concept while the latter is a positive concept. However, both of them aim at
establishing equality of legal status, opportunity and justice.
The Supreme Court held that where equals and unequals are treated differently, Article
14 does not apply. While Article 14 forbids class legislation, it permits reasonable
classification of persons, objects and transactions by the law. But the classification
should not be arbitrary, artificial or evasive. Rather, it should be based on an intelligible
differential and substantial distinction.
(i) Absence of arbitrary power, that is, no man can be punished except for a breach of
law.
(ii) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or
low, official or non-official) to the ordinary law of the land administered by the ordinary
law courts.
(iii) The primacy of the rights of the individual, that is, the constitution is the result of the
rights of the individual as defined and enforced by the courts of law rather than the
constitution being the source of the individual rights. (not applicable in INDIA)
The first and the second elements are applicable to the Indian System and not the third
one. In the Indian System, the constitution is the source of the individual rights.
The Supreme Court held that the 'Rule of Law' as embodied in Article 14 is a 'basic
feature' of the constitution. Hence, it cannot be destroyed even by an amendment.
Exceptions to Equality: The rule of equality before law is not absolute and there are
constitutional and other exceptions to it. These are mentioned below:
1. The President of India and the Governor of States enjoy the following immunities
(Article 361):
(i) The President or the Governor is not answerable to any court for the exercise and
performance of the powers and duties of his office.
(ii) No criminal proceedings shall be instituted or continued against the President or the
Governor in any court during his term of office.
(iii) No process for the arrest or imprisonment of the President or the Governor shall be
issued from any court during his term of office.
(iv) No civil proceedings against the President or the Governor shall be instituted during
his term of office in any court in respect of any act done by him in his personal capacity
before , whether before or after he entered upon his office, until the expiration of two
months next after notice has been delivered to him.
2. No person shall be liable to any civil or criminal proceedings in any court in respect of
the publication in a news paper (or by radio or television) of a substantially true report of
any proceedings of either House of Parliament or either House of the Legislature of a
State (Article 361-A).
5. Article 31-C is an exception to Article 14. It provides that the laws made by the state
for implementing the Directive Principles contained in clause (b) or clause (c) of Article
39 cannot be challenged on the ground that they are violative of Article 14. The
Supreme Court held that "where Article 31-C comes in, Article 14 goes out".
6. The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from
criminal and civil proceedings. (By Vienna convention)
7. The UNO and its agencies enjoy the diplomatic immunity.