Fundamental Right- ( article 12 & 13)

Introduction

“Freedom is the oxygen of the soul.” — Moshe Dayan.

Fundamental Rights that empower, protect, and elevate every citizen of India. Enshrined in Part III of the Indian Constitution, these rights are more than just words; they’re the bedrock of our legal framework and a moral compass for our democracy. But what defines these rights? How do Articles 12 and 13 play into this? And can these rights be suspended or waived?

Origin and Development of Fundamental Rights

📜 Historical Roots: Where It All Began

• The idea of Fundamental Rights isn’t unique to India.
• Inspired by U.S. Bill of Rights, British Magna Carta, and the Universal Declaration of Human Rights (UDHR).
• India’s freedom fighters and Constitution-makers emphasized the need for inalienable rights post-colonial rule.

🏛️ Constituent Assembly & Debates

• The Constituent Assembly debated for over 2 years on these rights.
• Dr. B.R. Ambedkar termed Part III as the “heart and soul” of the Constitution.
• Fundamental Rights were included to ensure India doesn’t repeat British-era injustices.

🔍 Why It Matters

• Without rights, democracy is hollow.
• They serve as checks on government power and ensure dignity, freedom, and equality.

Need for Fundamental Rights

🤝 Why Do We Need Them?

1. To protect individual dignity – Every person deserves a life of respect and equality.
2. To preserve democracy – Rights like freedom of speech are essential for a functioning democracy.
3. To prevent state abuse – Ensures power isn’t misused by the government.

🔒 Rights as Safeguards

• Rights like Right to Equality (Article 14) and Right to Freedom (Article 19) act as shield against discrimination and oppression.
• They ensure all citizens, regardless of caste, religion, gender, or class, are treated fairly.

📘 Case Study: Maneka Gandhi v. Union of India

• Highlighted the importance of personal liberty.
• Supreme Court ruled that laws must be “just, fair and reasonable.”

Striking a Balance Between Individual Liberty and Social Needs

⚖️ The Balancing Act

Fundamental Rights are not absolute. The Constitution allows for reasonable restrictions to serve the greater social good.

Examples:

• Freedom of Speech (Article 19) can be restricted for:
  • Public order
  • Decency or morality
  • Security of the State
• Directive Principles of State Policy (DPSP): Part IV of the Constitution, the DPSPs, guide the State in making laws for the welfare of society. Sometimes, a conflict arises between Fundamental Rights and DPSPs, which the judiciary has sought to resolve through various judgments, emphasizing the principle of harmonious construction.

🧑‍⚖️ Role of Judiciary in Maintaining Balance

• Courts have developed tests to check if a restriction is “reasonable.”
• Balancing individual liberty and collective interest is a key judicial task.

🏛️ Case Law Highlight: Kesavananda Bharati v. State of Kerala

• Reinforced that even Parliament can’t destroy the basic structure, which includes fundamental rights.

Suspension of Fundamental Rights

📕 When Rights Can Be Suspended

Under Article 359, during a National Emergency, some rights can be suspended, except:

• Article 20 (Protection in criminal offenses)
• Article 21 (Right to life and personal liberty)

Key Fact:
During the 1975 Emergency, several rights were suspended, sparking national outcry.

⚖️ Judicial Interpretation

• Post-Emergency reforms now require Parliamentary approval for suspending rights.
• Supreme Court has made it harder for rights to be suspended arbitrarily.

🔍 Case Law: ADM Jabalpur v. Shivkant Shukla

• Controversial ruling where SC said right to life can be suspended.
• Later criticized and effectively overruled in Puttaswamy Judgment (Right to Privacy).

Fundamental Rights Afford Protection Against State Action, Not Private Individuals

🛡️ Who Can Violate Your Rights?

• Articles 12-35 apply only against the State.
• Private parties are generally outside the scope unless supported by the State.

🧑‍⚖️ Important Case: P.D. Shamdasani v. Central Bank of India

• SC ruled that fundamental rights are not enforceable against private persons.

⚖️ But What If Private Acts Affect Public Rights?

• The judiciary steps in under the Directive Principles and Public Interest Litigations (PILs) to fill the gap.

‘The State’ Under Article 12

📘 Definition and Scope of Article 12

Article 12 of the Constitution defines “The State” to enforce Fundamental Rights. It includes:

1. The Government and Parliament of India
2. The Government and Legislature of each State
3. All local authorities
4. Other authorities within the territory of India or under the control of the Government of India

👉 The idea is simple: anybody or any institution wielding public power or performing public duties is covered by Article 12.

🧠 Why This Matters

Only actions by “the State” can be challenged for violating Fundamental Rights. Suppose a private entity infringes on your rights. In that case, you usually can’t approach the courts under Article 32 or 226 unless it’s proven the private party acted as an instrument of the State.

Authorities Under Article 12

🏛️ What Qualifies as an ‘Authority’?

The term “authority” isn’t defined explicitly in the Constitution. But courts have clarified it includes:

• Public sector undertakings (like ONGC and LIC)
• Bodies created by statute (e.g., UGC, Election Commission)
• Agencies performing governmental functions (even if incorporated under company law)

🧑‍⚖️ Key Judgment: Rajasthan State Electricity Board v. Mohan Lal

SC held that the Electricity Board was an authority under Article 12 as it discharged state functions and was controlled by the government.

💡 Test to Identify an Authority

1. Financial support from the government
2. Deep and pervasive control
3. Governmental function performed
4. Enjoyment of monopoly status

Mnemonic: “FDCM” — Finance, Deep Control, Mission, Monopoly

Local Authorities Under Article 12

🏘️ What Are Local Authorities?

These include institutions that operate at the grassroots level, such as:

• Municipal Corporations
• Municipal Councils
• District Boards
• Panchayats

They have statutory recognition and are empowered to make laws, levy taxes, and manage local governance.

📍 Example: Bruhat Bengaluru Mahanagara Palike (BBMP)

Suppose BBMP denies a person equal access to public resources or discriminates in service delivery. In that case, it can be sued for violating Article 14 (Right to Equality).

🧾 Legal Backup

The General Clauses Act 1897 defines local authorities, reinforcing their status under Article 12.

Other Authorities Under Article 12

🧩 Beyond Government: What Else Qualifies?

The phrase “other authorities” has a broad scope, covering:

• Publicly funded educational institutions
• Regulatory authorities (e.g., SEBI, TRAI)
• Companies performing public duties (if controlled by the government)

🧑‍⚖️ Case Law: Ajay Hasia v. Khalid Mujib

The Supreme Court ruled that even a society registered under the Societies Registration Act could be considered a State if it fulfils the government instrumentality test.

🛠️ Importance of This Clause

• Ensures no loopholes for state-like bodies to evade accountability.
• Broadens the ambit of Fundamental Rights

Article 13 – Laws Inconsistent with Fundamental Rights

⚖️ Constitutional Supremacy in Action

Article 13 ensures that:

1. Any existing law violating Fundamental Rights becomes void.
2. The State cannot make laws inconsistent with Part III.

📚 Text of Article 13

• Clause (1): Pre-constitution laws void to the extent of inconsistency.
• Clause (2): The State shall not make laws infringing Fundamental Rights.
• Clause (3): Defines “law” to include ordinance, order, by-law, etc.
• Clause (4): Shields Constitutional Amendments (after Kesavananda Bharati case)

🚫 What Happens to Inconsistent Laws?

They don’t disappear. Instead, they become unenforceable to the extent they violate the Constitution.

Example:

A colonial law allowing arbitrary arrest without trial would become void post-1950.

Power of Judicial Review

👩‍⚖️ Guardian Role of the Judiciary

Judicial review is the judiciary’s power to declare any law or executive action unconstitutional if it violates Fundamental Rights.

🌍 Why It’s Crucial

• Preserves democracy
• Upholds Rule of Law
• Protects civil liberties

🧑‍⚖️ Landmark Case: Kesavananda Bharati v. State of Kerala

SC held that judicial review is a basic feature of the Constitution — it can’t be taken away even by constitutional amendment.

Pre-Constitutional Laws

📜 What Happens to Laws Made Before 1950?

When the Constitution took effect on 26 January 1950, numerous British-era laws, such as the Indian Penal Code (IPC) and Criminal Procedure Code (CrPC), were already in force.

Article 13(1) ensures that any such law that violates Fundamental Rights is rendered null and void to the extent of inconsistency.

🧑‍⚖️ Judicial Viewpoint

• Courts don’t strike down the entire law.
• Only the unconstitutional portions are declared void.

🔍 Example:

If a law permitted punishment without trial, only that part becomes invalid, not the whole statute.

📌 Case Law: State of Bombay v. F.N. Balsara

• A part of the Bombay Prohibition Act was void as it infringed upon personal liberty.

Memory Tip:

“Pre = Partial Void”

Article 13 Not Retrospective in Effect

⏳ No Backward Application

Article 13 does not apply retrospectively, meaning:

• Laws made before 1950 were tested only after the Constitution came into force.
• No action taken before 1950 can be declared unconstitutional under Article 13.

🧑‍⚖️ Clarification in Case Laws

In Keshavan Madhava Menon v. State of Bombay, SC clarified that Article 13 applies only prospectively.

Real-life Analogy:

Think of Article 13 as a filter turned on from 26 January 1950 — laws made before are passed through it only after that date, not before.

Doctrine of Severability

✂️ Cutting the Bad from the Good

The Doctrine of Severability means that only the unconstitutional part of a law is struck down, not the entire legislation.

⚖️ Conditions for Severability

1. The valid and invalid parts can be separated.
2. The valid part can stand independently.
3. The legislature would have enacted the law even without the invalid part.

🧑‍⚖️ Landmark Case: A.K. Gopalan v. State of Madras

• Applied the doctrine to save portions of preventive detention law.

📌 Example:

If Section 5 of a law violates Article 14, only Section 5 is void — the rest of the law survives.

Mnemonic: “VIC” — Valid, Independent, Continue

Doctrine of Eclipse

🌑 Temporary Inoperability

This doctrine says:

• A pre-constitutional law inconsistent with Fundamental Rights is not dead but only eclipsed.
• It can become operative again if the inconsistency is removed.

🧑‍⚖️ Case Law: Bhikaji Narain Dhakras v. State of Madhya Pradesh

• The court held that a law that became invalid due to Article 13 could be revived if the conflicting Fundamental Rights were later amended or removed.

📘 Why It’s Important

• It allows legal continuity.
• Prevents legal vacuum when Fundamental Rights are amended.

Memory Tip:

“Eclipse = Shadow, Not Erase”

Post-Constitution Laws

📅 Laws Made After 1950

Every law made after the Constitution came into force is directly subject to Article 13(2).

If any law infringes on fundamental rights, it becomes void ab initio (invalid from the beginning).

🧑‍⚖️ Important Case: Minerva Mills v. Union of India

• SC struck down parts of the 42nd Amendment for violating Fundamental Rights and the basic structure doctrine.

🧩 Why It’s Significant

• Reinforces the supremacy of the Constitution.
• Ensures every future legislation respects Fundamental Rights.

The Doctrine of Waiver

❌ Can You Give Up Your Rights?

Citizens can waive some of their rights in the American Constitution. But in India, the answer is No.

🧑‍⚖️ Olga Tellis v. Bombay Municipal Corporation

• SC observed that Fundamental Rights are not a matter of contract.
• One cannot waive these rights even voluntarily.

📘 Why is there No Waiver in India?

1. Fundamental Rights protect the public interest, not just the individual.
2. Waiving rights could lead to exploitation or inequality.

Key Rule:

“No one can barter away their liberty.”

“Law” and “Law in Force” Explained

⚖️ Definition in Article 13(3)

• “Law” includes Ordinance, Order, Bye-law, Rule, Regulation, Notification, and Custom.
• “Law in force” means all laws active before the Constitution and not repealed.

📘 Why Definitions Matter

• It helps determine what can be challenged under Article 13.
• Ensures no loopholes for authorities to escape constitutional scrutiny.

📌 Example:

A university rule restricting freedom of expression = “law” under Article 13 and can be challenged in court.

Is Constitutional Amendment a ‘Law’ under Article 13(2)?

🧑‍⚖️ Debated in Two Historic Judgments

1. Golaknath v. State of Punjab (1967):
2. SC said Constitutional Amendments are “law” under Article 13(2).
3. Parliament cannot amend Fundamental Rights.
4. Kesavananda Bharati v. State of Kerala (1973): This landmark judgment, while upholding the validity of the 24th Amendment, propounded the “Basic Structure Doctrine.”The Verdict: The Supreme Court ruled that Parliament has the power to amend any part of the Constitution, including Fundamental Rights, but it cannot alter its “basic structure” or essential features
5. Shankari Prasad v. Union of India (1951): The Supreme Court initially held that a Constitutional Amendment is not a “law” under Article 13(2), and therefore, Parliament could amend Fundamental Rights.
6. Sajjan Singh v. State of Rajasthan (1965): This judgment largely upheld the view of Shankari Prasad.
7. Golaknath v. State of Punjab (1967): A larger bench reversed the previous decisions, holding that a Constitutional Amendment is a “law” under Article 13(2), and therefore, Parliament could not abridge or take away Fundamental Rights.
8. 24th Constitutional Amendment Act, 1971: In response to Golaknath, Parliament passed this amendment, explicitly stating that Article 13 would not apply to constitutional amendments. It also added Article 368(3), which states that nothing in Article 13 shall apply to any amendment made under Article 368.

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Impact: This judgment established that while constitutional amendments are not “law” in the ordinary sense for Article 13(2), they are still subject to the basic structure doctrine, ensuring that the core principles of the Constitution remain inviolable.

🧩 Current Legal Position

• Amendments are NOT “law” under Article 13(2).
• However, they must respect the fundamental structure doctrine.

Conclusion

Fundamental Rights are the lifeline of Indian democracy, ensuring justice, liberty, and equality for all. Articles 12 and 13 act as gatekeepers, deciding who can be held accountable and which laws must obey the Constitution.

These provisions form the backbone of constitutional law, from pre-constitutional laws to post-independence policies, from doctrines of severability and eclipse to judicial review. They uphold the rule of law, balance individual rights and collective interests, and ensure no authority is above the Constitution.

Thought-Provoking Line:

“Rights are not handed over; they are claimed, protected, and defended — by law, by will, and by the Constitution.”