Fundamental Rights And State
Fundamental Rights are such rights which are essential for human dignity and all-round development of human beings. Right to equality, right to freedom of speech and expression, right to life, right to liberty etc. are such rights. During monarchy or aristocratic rule these rights were hardly recognized. Human beings have been able to acquire these basic rights after long struggle.
Magna Carta (1215) and Bill of Rights (1689) were small steps towards limiting absolute rights of monarch in England. Philosophers like Hobbs, Locks and Rousseau propounded that human beings have certain inalienable rights. Declaration of American Independence (1776) recognized that all men are equal and they are endowed by their creator with certain inalienable rights that among these are life, liberty and pursuit of happiness. Declaration of Rights of Men (1789) in France declared that men are born free and remain equal in rights. Declaration of Rights of men also recognized that rights of liberty, property security, and resistance to oppression are inalienable rights of men.
Bill of Rights have been incorporated in the American Constitution through first ten amendments. These are rights of citizens which can not taken away by the State. Many of the constitutions of the world, including India, have been influenced by Bill of Rights.
In India the freedom fighters were aware of Fundamental Rights. Bal Gangadhar Tilak moved Constitution of India Bill, 1895 also known as Swaraj Bill asking for freedom of speech, right to privacy, right of franchise etc. In 1928 Nehru Commission also recommended for guarantee of Fundamental Rights. In 1931, Congress adopted resolution for defense of Fundamental and Civil Rights.
Article 12 to Article 35 of the Constitution deals with Fundamental Rights.
What is State ?
Article 12 defines State. The definition of State is important as Fundamental Rights are limitations on State. State can not take away or abridge Fundamental Rights available to citizens.
State has been defined inclusively. State includes the following:
- Government of India
- Parliament of India
- Government of State
- Legislature of State
- Local Authorities
- Other authorities within the territory of India or Government of India
Executive and legislature at central and state level and local authority are expressly included in definition of State. Other Authorities mentioned under Article 12 has been subject of various interpretations.
Various High Courts had interpreted other authorities narrowly to include only authorities similar to legislature or executive following the “ ejusdum generis” rule of interpretation. The Supreme Court in State Electricity Board Rajasthan Vs. Mohan Lal (1967 AIR 1857) made wider interpretation of the word “Other Authorities” and held that “Other Authorities” in Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Supreme Court in Ajay Hasia Vs. Khalid Mujib (1981) 1 SCC 722 provided the test to conclude whether an individual, corporation or society will be covered under definition of state as under:
- Whether the share-capital of the corporation is held by the Government
- Whether the financial assistance of the State meets almost the entire expenditure of the corporation
- Whether the corporation enjoys a state-conferred or state-protected monopoly status
- Whether there is deep and pervasive state control
- Whether the functions of the corporation are of public importance and closely related to Governmental functions
- Whether a department of Government has been transferred to a corporation
Whether Judiciary is part of State?
It has been clearly mentioned under Article 12 that Legislature and Executive are covered under definition of “State”. Judiciary in discharge of judicial functions are not covered under “State” but Judiciary in discharge of administrative and rule making functions are covered under definition of “State”.
SUPREMACY OF CONSTITUTION VIS-À-VIS OTHER LAWS
Fundamental Rights have been given paramount importance under the Constitution of India and it will prevail over all other laws.
Article 13 deals with laws inconsistent with or in derogation of Fundamental Rights.
All laws which are in force immediately before commencement of the constitution will be void to the extent, they are inconsistent to Fundamental Rights. Article 13 does not apply retrospectively. It does not affect any actions which have been taken before commencement of Indian Constitution even if they are inconsistent with Fundamental Rights.
State can not make any laws which takes away or abridges any Fundamental Right. If state makes any laws which takes away or abridges Fundamental Rights, will be void to the extent of inconsistency.
Doctrine of Eclipse
The laws made before the commencement of constitution or thereafter which are inconsistent with the Fundamental Rights do not become void in totality. But such parts, which are inconsistent with Fundamental Rights, becomes void.
Inconsistent parts do not become dead but get only overshadowed by the Fundamental Rights. If circumstances change and inconsistent laws no longer remain in conflict with Fundamental Rights, such laws again come to life. This is called Doctrine of Eclipse.
Definition of “Laws”
Laws includes ordinance, order, bye-law, rule, regulation, notification, custom or usage having in territory of India force of law.
Law in force includes laws passed or made by legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed.
Whether Amendment of Constitution will be covered under definition of “Laws” ?
Article 368 provides for procedure to amend the Constitution. Whether such amendments of Constitution will be covered under definitions of “laws”.
In Shankari Prasad Vs. Union of India (1951 AIR 458) and in Sajjan Singh Vs. State of Rajasthan (1965 AIR 845) it was held Parliament has power to amend Fundamental Rights. Amendment under 368 is not covered under “laws” as defined under Article 13.
In Golak Nath Vs. State of Punjab (1967 AIR 1643) Supreme Court overruled the earlier judgments and held that Parliament has no power to amend Fundamental Rights.
24th Amendment was passed by the Parliament to get over the Golak Nath Judgment. Supreme Court upheld the Right of the Parliament to amend the Fundamental Rights in Kesavananda Bharati Vs. State of Kerala (1973) 4 SCC 225 but also propounded principle of basis structure, which can not be amended by Parliament.