General Principles relating to Fundamental Rights(Art.13)

Legal provision

• Article 13(1): laws in force in India immediately before the Constitution began are void, to the extent they are inconsistent with Part III.
• Article 13(2): the State shall not make any law which takes away or abridges the rights in Part III. A law made in contravention is void to the extent of the contravention.
• Article 13(3): "law" includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. "Laws in force" includes laws passed before commencement that are not repealed, even if not then in operation.
• Article 13(4): nothing in Article 13 applies to an amendment made under Article 368. It was inserted by the 24th Amendment (in force from 5 November 1971). Article 368(3) says the same.
• Article 32: the right to move the Supreme Court to enforce Part III is guaranteed.
• Articles 33 to 35: Parliament may restrict or abrogate rights for the armed forces and similar forces (Article 33). It may indemnify acts done under martial law (Article 34). It alone may make laws punishing offences under Part III (Article 35).
• Article 300A: no person shall be deprived of property save by authority of law. Article 31 was omitted by the 44th Amendment (in force from 20 June 1979).

Meaning and definition

Fundamental Rights are the rights guaranteed in Part III. They are fundamental for three reasons. They are entrenched in the Constitution, so an ordinary law cannot take them away. They can be enforced directly in the Supreme Court (Article 32) and the High Courts (Article 226). And any law that conflicts with them is void (Article 13).

Part III groups them as follows.

• Right to equality: Articles 14 to 18.
• Right to freedom: Articles 19 to 22.
• Right against exploitation: Articles 23 and 24.
• Right to freedom of religion: Articles 25 to 28.
• Cultural and educational rights: Articles 29 and 30.
• Right to constitutional remedies: Article 32.

The right to property is no longer a Fundamental Right. The 44th Amendment omitted Article 31 and Article 19(1)(f), and inserted Article 300A. Property is now a legal right, not a right under Part III.

Detailed explanation

Step 1: who is bound

Fundamental Rights are claimed mainly against "the State", defined in Article 12. A few bind private persons as well. Article 15(2) bars a citizen from being denied access to shops, restaurants and places of public entertainment on grounds of religion, race, caste, sex or place of birth. Article 17 abolishes untouchability, and its practice is an offence.

Step 2: Article 13(1), existing laws

A law made before 26 January 1950 is void only to the extent it conflicts with Part III. In Bhikaji Narain Dhakras v. State of Madhya Pradesh, the Court said "void" does not mean void for every purpose. Such a law is only eclipsed (overshadowed) and dormant while the conflict lasts. It stays in force against non-citizens and for rights and liabilities arising before the Constitution. This is the doctrine of eclipse.

Step 3: Article 13(2), later laws

A law made after commencement that takes away or abridges a right is void from the moment it is made. It cannot revive by a later amendment. It would have to be passed again.

Step 4: Article 13(4) and amendments

Before 1971, the question was whether an amendment is a "law" under Article 13. Golak Nath (1967) held that an amendment is bad if it infringes Article 13(2), as Sikri, C.J. records in Kesavananda Bharati. The 24th Amendment then added Article 13(4) and Article 368(3). In Kesavananda Bharati v. State of Kerala, several Judges held that "law" in Article 13(2) means ordinary law and does not cover an amendment. Several Judges also hold that the amending power cannot destroy the basic structure. Cite each Judge's view.

Step 5: severability

When only part of a law conflicts with Part III, the court strikes down that part if it can be separated from the rest. If the two are so mixed that removing one changes the law's character, the whole law falls. This is the doctrine of severability. In A.K. Gopalan v. State of Madras, the Court struck down section 14 of the Preventive Detention Act, 1950. That section barred a detainee from disclosing the grounds of detention to a court. The Court upheld the rest of the Act.

Step 6: waiver

A person cannot ordinarily waive a Fundamental Right. In Basheshar Nath v. Commissioner of Income Tax, a taxpayer had settled his liability under section 8A of the Taxation on Income (Investigation Commission) Act, 1947. The reference under section 5(1) had been held bad under Article 14. The Court held that his settlement could not be treated as a valid waiver. Fundamental Rights embody a public policy beyond the individual's benefit. This is the doctrine of waiver as it applies to rights.

Step 7: the rights are read together

In Gopalan (1950), the majority treated Articles 14, 19 and 21 as separate fields. The "procedure established by law" in Article 21 needed only a procedure validly enacted. In Maneka Gandhi v. Union of India (1978), a seven-Judge Bench held that Articles 14, 19 and 21 are not mutually exclusive. The procedure under Article 21 must be fair, just and reasonable, "not fanciful, oppressive or arbitrary". The passport of Maneka Gandhi was impounded on 2 July 1977 without reasons. The linked reading is the Golden Triangle.

Don't confuse: eclipse and severability

Common mistakes

• Applying eclipse to a law made after 1950. It applies only to pre-Constitution laws.
• Saying Gopalan "created" severability. The Court applied it there.
• Saying the right to property is still a Fundamental Right. It is a legal right under Article 300A.
• Saying Parliament cannot amend Part III. Article 13(4) and Kesavananda Bharati allow amendment within the basic structure.

Apply it

Leading case laws

• A.K. Gopalan v. State of Madras (1950)

  Facts. A communist leader detained under the Preventive Detention Act, 1950 challenged his detention under Articles 19(1)(d) and 21.

  Principle. By 5:1, the Court struck down section 14 and kept the rest of the Act. It treated Articles 14, 19 and 21 as separate and read procedure established by law as any validly enacted procedure. Fazl Ali J dissented.

  Why it matters. It applied severability. Its separate-fields view was overruled in Maneka Gandhi.

• Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955)

  Facts. A pre-Constitution motor transport law clashed with Article 19(1)(g). A 1955 notification then took over the petitioners' bus routes.

  Principle. The law was only eclipsed and revived automatically once the First Amendment of 1951 removed the conflict.

  Why it matters. It is the authority for the doctrine of eclipse.

• Basheshar Nath v. Commissioner of Income Tax (1959)

  Facts. A taxpayer settled his tax liability, then sought to reopen the settlement after the reference to the Investigation Commission was held bad under Article 14.

  Principle. Fundamental Rights cannot ordinarily be waived, because they carry a public policy beyond the individual's benefit.

  Why it matters. It is the leading case on waiver of Fundamental Rights.

• Maneka Gandhi v. Union of India (1978)

  Facts. The Government impounded the petitioner's passport on 2 July 1977 under section 10(3)(c) of the Passports Act, 1967, without giving reasons.

  Principle. The procedure under Article 21 must be fair, just and reasonable. Articles 14, 19 and 21 are not mutually exclusive. A hearing is read into the Act.

  Why it matters. It overruled Gopalan's exclusivity theory and gave the Golden Triangle.

How to write this answer in the exam

Key points to remember

• Part III covers Articles 12 to 35; the right to property left Part III in 1979 (Article 300A).
• Article 13(1): earlier laws void to the extent of inconsistency. Article 13(2): later laws void.
• Article 13(4) and Article 368(3): amendments are outside Article 13, but not outside the basic structure.
• Eclipse (Bhikaji): only earlier laws; they revive.
• Severability (Gopalan): only the bad part falls.
• Waiver (Basheshar Nath): rights cannot ordinarily be waived.
• Maneka Gandhi (1978): Articles 14, 19 and 21 read together; fair procedure.

Quick self-test

Related topics

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