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THE CONSTITUTIONAL  LAW – FUNDMENTAL RIGHTS 

– ARTICLES 12 TO 16 – A DOCTRINAL APPROACH

By  

Dr. Y. Srinivasa Rao, M.A (English Lit.)., B.Ed., LL.M.,  Ph.D in Torts., Principal Senior Civil Judge, Tirupati

Introductory

            The Constitution of a country is the supreme law. The Constitution is a set of laws and rules setting up the machinery of the government of a State and defining and determining the relations between different institutions and areas of Government. It is the supreme authority of the courts to interpret the provisions of the Constitution. The judiciary, particularly the Supreme Court, is constituted the guardian of fundamental rights. Part III of the Constitution of India containing articles 12 to 35 deals with fundamental rights. Part IV containing articles 36 to 51 states the directive principles of State policy. On 26thJanuary, 1950 India became a Sovereign Democratic Republic as contemplated by the Constitution of India, which was adopted by the Constituent Assembly on November 26, 1949. Fundamental rights guaranteed by the Indian Constitution broadly fall into certain categories. Articles 14 to 16 confer the right to equality in its several manifestations and prohibit discrimination on the ground of only of religion, race, caste, sex or place of birth.  Article 19 guarantees basic freedoms such as freedom of  speech and expression, freedom of  peaceful assembly; freedom to form associations or unions; freedom to move freely and reside and settle in any part of  India; and freedom to practice and profess one’s religion, or to carry on any occupation, trade or business. Articles 19(1)(f) and 31, which guaranteed property rights  were removed by the Constitution (Forty-fourth) Amendment Act, 1978.   Article 20  gives constitutional guarantees against retrospective criminal laws, double jeopardy and self-incrimination. Article 21 states that no person shall be deprived of  his life or personal liberty except according to procedure established by law. The term “life” in Article 21 of the Constitution received an expansive interpretation. Articles 23 and 24 provide for guarantee protection against exploitation such as traffic in human beings and forced labour. Articles 25 to 28 deal with freedom of conscience and freedom of religion. Articles 29 and 30 guarantee rights of   the minorities to conserve their language, script and culture and to establish and administer educational institutions of their choice. The doctrinal study in this paper is only limited to the extent of Articles 12 to 16 of the Indian Constitution. 

Preamble

           Preamble reflects the hopes and aspirations of people. The Constitution of India has  a noble and grand vision contained in the Preamble. Importance of preamble in a Constitution is succinctly explained by the Supreme Court in Kesavanandha Bharati’s Case. The Constitution -maker gave to the Preamble the pride of place. The Preamble , though a part of the Constitution, is neither a source of power nor a limitation upon that power. The majority view in Kesavananda Bharathi’s case, the Preamble furnishes the yardstick to be applied even to constitutional amendments. The Preamble gives direction and purpose to the Constitution which is reflected in Parts-III and IV. The Preamble is unamendable. It cannot be varied, altered or repealed. The doctrine of basic structureis only a substantive ground of attack against a constitutional amendment. It is unavailing as a ground of judicial review of legislation. “The constitutional fascination for the basic structure doctrine cannot be made a Trojan horse to penetrate the entire legislative camp”  As basic structure doctrine, study  continued to identify what further fundamental rights could be considered as part of the basic structure. The concept of ‘egalitarian equity’ is introduced in M.Nagaraj’s case.  I.R. Coelho is another milestone in the judicial delineation of what constitutes the basic structure of the Constitution. In M. Nagaraj, the court noted that the basic structure need not be found in constitutional text alone. It was noted that the interconnectedness of fundamental rights to hold “fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14, Article 14 read with Article 16(4)(4A)(4B) etc. The Preamble of the Constitution is the epitome of the basic structure built in the Constitution guaranteeing Justice – social, economic and polical – equal status and of opportunity with dignity of person and fraternity. 

Fundamental Rights

       Every human being has dignity by virtue of his existence. Fundamental rights are part of the basic structure of the Constitution of India.  Fundamental rights occupy a unique place in civilized society. Protection of fundamental rights is available equally to majority as well as minorities or even an individual. His Lordship H.R.Khanna, J, never opines that fundamental rights are outside purview of the basic structure.  Fundamental rights are earlier known as ‘natural rights’.  The word ‘Fundamental’ as used in the expression ‘Fundamental in the governance of the State’ to describe the directive principles which have not been made enforceable. The word fundamDental has been used in two different senses under the Constitution. The essential character of the fundamental rights is secured by limiting the legislative power and by providing that any transgression of the limitation would render the offending law pretendo void. The State is to deny no one equality before laT. Fundamental rights are inherent and cannot be extinguished by any constitutional or statutory provision. Fundamental right are given a transcendental position under the Constitution and are kept beyond the reach of the Parliament. There is an inherent danger in making exceptions to fundamental principles and rights. The framers of the Constitution have built a wall around certain parts of fundamental rights, which has to remain forever, limiting ability of majority to intrude upon them.  While clause (1) of Article 359 empowers the President to suspend the enforcement of the fundamental rights named in such notification, it does not empower the President to suspend the fundamental rights. Supreme Court of India is the custodian and enforcer of fundamental rights and the final interpreter of the Constitution. Rajasthan State Electricity Board is held to be statutory body within the meaning of Article 12. 

Article 12

The expression ‘State’ is defined in Article 12 for the purpose of Part-III of the Constitution. The expression ‘other authorities’ in Article 12 include all constitutional or statutory authorities on whom powers are conferred by law. Judiciary, Executive and Legislature are integral parts of the ‘State’ within the meaning of Article 12. Government does not have deep and pervasive control over the working of SCERT. It does not have financial control in the sense that once the finances are made available to it, the administration of those finances is left to SCERT and there is no further governmental control. SCERT is therefore not a ‘State’ or ‘other authority’ within the meaning of Article 12.  Supreme Court in Sukhdev Singh’s case, Oil and Natural Gas Commission (ONGC), Life Insurance Corporation (LIC), Industrial Finance Corporation (IFC) are held to be authorities within the meaning of Article 12. Bharat Petroleum Corporation is held to be an authority within the meaning of ‘State’ under Article 12.  Similarly, Children’s Aid Society, Delhi Transport Corporation, International Airport Authority,  City and Industrial Development Corporation of Maharasthra, Aided school, (which receives 95% of expenses by way of grant from Government, was held, on facts, falls within the expression of ‘other authorities’ under Article 12), Indian Food Corporation, Steel Authority of India were held to be ‘State instrumentalities’  within the meaning of Article 12 of the Indian Constitution.  

Article 13

       There is conflict between Article 13 and Article 368, there should be a conjunctive application of the section with a view to see, which overrides the other, and in the case of ambiguity in interpretation of the two sections, the issue has to be decided by a reference to the Preamble of the Constitution and  its directives. Article 13 renders all laws inconsistent and derogative of fundamental rights as void. In India it is the Constitution that is supreme, that a 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 same result could be achieved even without the aid Article 13  of and the laws transgressing any fundamental rights would be declared void in its absence.” In A.K. Gopalan v. State of Madras, His Lordship Kania, C.J. pointed out that article 13 was inserted in part III of the Constitution ex abundante cautela and in India the Constitution was supreme and that a statute law to be valid, must be in conformity with constitutional requirements and it was for the judiciary to decide whether any enactment was constitutional or not. 

Doctrine of Eclipse

This doctrine applies to pre-Constitution laws which are governed by Article 13 (1) but it does not apply to post constitution laws which are governed by Article 13 (2). The meaning of the word ‘void’ is the same both in Article 13 (1) and Artcile 13 (2). The effect of Article 13 (1) with respect to existing laws in so far as they were unconstitutional was only that it nullified them, and made them ‘ineffectual and nugotory and devoid of any legal force or binding effect’. The vital difference between Article 13 (1) and Article 13 (2) is such that the voidness of the pre-Constitution laws is not from inception. Such voidness suprevened when the Constitution came into force. The voidness of post-Constitution laws is from their very inception and they cannot therefore continue to exist for any purpose. 

Doctrine of Severability:-  The doctrine of severability is applicable only if it is possible to separate from the legal from the unconstitutional portion of the provision. If it is not possible to do so, the entire provision has to be struck down as unconstitutional. This doctrine applies to both administrative and quasi judicial orders. The provisions which are invalid cannot affect the validity of the Act as a whole. 

Doctrine of Waiver:-  The word “ ‘Waiver’ involves a conscious, voluntary and intentional relinquishment or abandonment of a known, existing legal right, advantage, benefit, claim or privilege, which, except for such  a waiver, the party would have enjoyed. This doctrine of Waiver was discussed in Basheshar Nath’s case. His Lordship K. Subba Rao, J. held:

82. … Part III reflects the attempt of  the Constitution makers to reconcile individual freedom with State control. … in India, fundamental rights and their limitations are crystallised and embodied in the Constitution itself; while in America a free hand was given to the judiciary not only to evolve the content of  the right but also its limitations, in the Indian Constitution there is not much scope for such a process. The Court cannot therefore import any further limitations … other than those contained in Part III by any doctrine, such as ‘waiver’ or otherwise. I would, therefore, hold that the fundamental rights … cannot be waived.

There cannot be estoppel against the Constitution as was held in Olga Tellis. The plea of estoppel was closely connected with the plea of waiver, affirmed Basheshar Nath case. an undefined plain rule that constitutional rights cannot be waived or that there cannot be estoppel against the Constitution would be an anomaly, and even a redundant proposition. As was observed in Cummings v. Missouri“What cannot be done directly cannot be done indirectly.

Articles 14, 15 and 16:- Article 14 enshrines the principle of equality before law. The scope of this article is very wide.  Articles 14, 15 and 16 form part of a string of constitutionally guaranteed rights. These rights are supplement each other.  Both Rule of law and Equality before law are cardinal principles of constitutional  laws as also in international law. Caste based reservation violates Article 15 which prohibits discrimination on the grounds of religion, race, caste, sex or place of  birth. What is meant by equality is in this article 14 is, equality among equals. The doctrine of classification has been described as a ‘subsidiary rule’. If an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of law contained in Article 14 and would be struck down on this ground. The Apex Court laid down many a principle pertaining to class legislation and also the presumption as to constitutionality of a statutory provision.  As to the the  doctrine of arbitrariness is concerned, the Apex Court in E.P. Rayappa’s case, it was held that allegations of mala fides are often made more easily than proved. Doctrine of legitimate expectation is explained in Confederation of Ex-Servicemen Assns.’ case. This doctrine has an important place in administrative law and particularly law relating to ‘Judicial Review’. The principle of principles of natural justice stands on two limbs. 1. nemojudex in causasua (the rule against bias) and; 2. audi alteram partem (that no one ought to be condemned unheard). The key  underlying concepts are those of ‘impartiality’ and ‘fairness’. Principles of natural justice are inherent in the Constitution.  With regard to sexual harassment in workplaces is concerned, the Suprme Court held that women have rights to gender equality, to work with dignity and to a working environment safe and protected from sexual harassment or abuse.   Article 15 is interpreted in the cases of State of Madras Vs. Champkam Dorain Rajan,, M.R.Balaji; Jayasri; Periyakaruvan, Sunil Jatle. Regarding Article 16 (1)is concerned, the cases of All India Station Master’s Association Vs. General Manager, Central Railway, AIR 1960 SC 384;  Air India Vs. Nargish Mirza, AIR 1981 SC 1829 are very important to understand the object of Article 16 (1). The principle of equal pay for equal work is explained in Randhir Singh’s case. Apex Court in P. Radha Krishna. Naidu’s case, it was held that Article 16 is not violated by the provisions of compulsory retirement. The concept of geographical classification (place of residence) is interprtered in the purview of Article 16 (2) in Kailash Chand Sharma’s case. In T. Devadasan‘s case  the question, which came before the Supreme Court, was whether the 50% rule of reservation laid down, is applicable to those posts which were carried forward for next year also. The reservation of vacancies went upto 64%. This was challenged as unconstitutional, as it would destroy the right guaranteed under articles 16(1) and 4 of the Constitution. The Supreme Court struck down the carry forward rule  as unconstitutional. In State of Kerala v. N.M. Thomas,the Supreme Court has shown the positive approach towards the members of the SC/ST. In  Akhil Bharatiya Soshit Karamchari Sangh‘s case, the Apex Court has shown its concern towards the members of SC/ST employees in the application of ‘carry forward rule’. In Indra Sawhney‘s case  the Supreme Court upheld the 50% rule of reservation and observed that, at no point of time, the reservation shall exceed 50% rule as laid down in  Balaji’s case The Supreme court also pointed out that if the reservation exceeds 50% through carry forward rule, the rule is invalid and  violative of article 16(4) of the Constitution.  Single post reservation is concerned, the apex court Chakradhar Paswan‘s case , in which the court held that whenever there is a single post in  a cadre, there can be no reservation with reference to that post either for recruitment at initial stage or for filling up future vacancy in respect of that post. The court also observed that ‘no reservation could be made under article 16(4) so as to create a monopoly, otherwise the equality guaranteed under article 16(1) and (2) would become meaningless and illusory. However, in Union of India v. Madhavthe Supreme Court said ‘reservation’ could be provided even to the isolated posts on the basis of rotation or roster system’.  

Conclusion

       Indian Constitution is founded on the bed rock of the balance between Parts III and IV. Indian Constitution has special provisions for the development of  tribal people in the country.  Social, Economical, Educational, political and Employment rights of Tribal people are protected under the Constitution. A new Article 338-A was introduced for the establishment of National Commission for the Scheduled Tribes. Besides this, Fifth and Sixth Schedule of Constitution of India deals with the tribal people.  The fundamental rights are immediately made “justiciable” and “enforceable”, but the Directive Principles of State Policy are not.  Equality must not remain mere idle incantation but must become a vibrant living reality for the large masses of people. The author opines that while interpreting Article 16 of the Indian Constitution, an affirmative action is very much essential for promoting educational and economic interest of the weaker sections of the society.  To extend reservation benefits to the weaker sections in private sectors, an appropriate constitutional amendment shall also be made. The imparting of education is the duty of the state but unfortunately it has failed in keeping pace with the changing conditions of the country, a fortiori, education cannot be considered ‘trade’, ‘business’ or ‘profession’ within the meaning of article 19(1)(g) to the capitalist conception of education in T.M.A. Pai which recognised education as an ‘occupation’ within the meaning of article 19(1)(g) of the Indian Constitution. Article 15(4) and Article 16(4) of the Constitution  are brought about by the first amendment to the Constitution, so as to balance the original provisions, prohibiting any discrimination on the basis of caste, class and sex.

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