Fundamental Rights

jyoti
By jyoti July 10, 2019 14:01

An ordinance is an Executive power in a stand-alone manner but it is a Fundamental Rights or legislative power of President or Governor

Cabinet approves the Draft
When an ordinance bypasses the Parliament and goes to President U/A 123, it’s the executive action

How can we think of switching between Parliamentary form to the Presidential form of government when Parliamentary form of government is part of the Basic structure of our Constitution?

Difference between Fundamental Rights, Constitutional Rights, and Legal Rights

Fundamental Rights

[Part-III: Articles 12 to 35]

  • What is a ’Right’?

A moral or legal entitlement to have or do something.

  • What are Human rights?

A set of basic rights and freedoms that belong to every person in the world, from birth until death. They apply regardless of where you are from, what you believe or how you choose to live your life. They can never be taken away, although they can sometimes be restricted– for example, if a person breaks the law, or in the interests of national security.

  • These basic rights are based on values like dignity, fairness, equality, respect & independence.
  • Fundamental Rights: These are Fundamental Rights for human survival, not mere
    animalistic survival but Humanistic survival.

That is why they need to have a special force of law in order for them to be protected from Legislative and executive onslaught.

Special Force in a Constitutional Democracy is “Constitution”.  

By definition, a constitutional right is a legal right, one that comes above all other legal rights.

Amendability by Legislature or Parliament

[The outer layer is most vulnerable]

  • Difference between Fundamental Right, Constitutional Right and a Legal Right
    Fundamental Rights are protected and guaranteed by the Constitution and they cannot be taken away by an ordinary law enacted by the legislature.
  • The legal rights are protected by ordinary law, but they can be altered or taken away by the legislature by changing that law.
  • If a legal right of a person is violated, he can move to an ordinary court, but if a Fundamental Right is violated the Constitution provides that the affected person may move to High court or Supreme Court.
  • An ordinary right generally imposes a corresponding duty on another individual but a Fundamental Rights is a right which an individual possesses against the state.
  • Fundamental Rights in India act as a limitation not only upon the powers of the Executive(meaning Government) but also on the power of Legislature.
  • Though the model has been taken from the American Constitution Indian Constitution does not go as far as the Parliament cannot take away all the Fundamental Rights even through a Constitutional Amendment.

Article12. Definition of State [for the purpose of Part-III of Constitution]

 

In this part, unless the context otherwise requires, the State includes the:
[i].  Government and Parliament of India and
[ii]  Government and the Legislature of each of the States and
[iii] all local authorities within the territory of India or under the control of the
Government of India.

[iv] All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

Why defining state is important?

  • Ordinary laws are sufficient enough to protect infringement of rights by individuals.
  • But since the state is granted with unlimited powers and authority, Individuals need constitutional protection from the acts of the state itself.
  • For providing this protection, first, it needs to be clearly defined what comes under the definition of a state.
  • Though the state has been defined under articles 12 in clear words, most of the controversies arise due to its 4th category i.e. other authorities.
  • Inclusion of an organization in the definition of state would make it amenable to the writ jurisdiction of the Supreme Court under Article 32.

Evolution of the term ‘state’

  • Earlier the term ‘State’ was defined based on the principle of ejusdem generic or things of like nature in the University of Madras v. Santa bai case. On this basis, other authorities would only include authorities exercising governmental or sovereign function.
  • Later in the case AJAY HASIA vs KHALID MUJIB (1981), Justice P.N Bhagwati propounded a 6-point Public Function test to determine whether a body is an agency or instrumentality of the state, i.e.:
  • if the entire share capital of the corporation is held by Government;
  • Where the financial assistance of the State is so much as to meet the almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
  • Whether the corporation enjoys monopoly status which is the State conferred or State protected.
  • Existence of deep and pervasive State control [Eg.- Licence Raj- What and how much to produce?]
  • Sovereign Functions: If the functions of the corporation of public importance and closely related to governmental functions. [Mis-alignment due to LPG reforms]
  • if a department of Government is transferred to a corporation,

Next important case was Kumar Biswas v. Indian Institute of Chemical Biology, this case overruled the AJAY HASIA case judgment and established that

  • The Public function test (Ajay Hasia case) is not a hard and fast rule to determine whether a body is state or not and a body cannot be declared state is it falls under one of the conditions under test.
  • To be declared as a state the body should be financially, functionally and administratively dominated by or under the control of the Government.
  • On the other hand, when the government control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.

It is important to note that the judgment given on the question of BCCI in Zee Telefilms V Union of India in 2006 used the conclusion of Kumar Biswas v. Indian Institute of Chemical Biology case.

Is BCCI a state or not?

Zee Telefilms v. Union of India case judgment held that BCCI cannot be called a State under Article 12 of The Constitution as it is not created by a statute, not dominated by the government either financially, functionally or administratively.

Whether judiciary a state or not?

  • In Rupa Ashok Hurra v. Ashok Hurricane, the Apex Court reaffirmed and ruled that no judicial proceeding could be said to violate any of the Fundamental Rights and superior courts of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12.
  • But, in the landmark case of NareshShridharMirajkar V State of Maharashtra, SC held that only administrative functions of the court can be termed as a state but not the judicial functions.
  1. Cooperative Societies:

The Statutory regulation of functioning of Societies is not an imprint of the State under
Article 12.

  • The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government was laid down by SC in the International Airport Authority’s case.
  • if the entire share capital of the corporation is held by Government;
  • Where the financial assistance of the State is so much as to meet the almost entire
    expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
  • Whether the corporation enjoys monopoly status which is the State conferred or State protected.
  • Existence of deep and pervasive State control [Eg.-Licence Raj- What and how much to produce?]
  • Sovereign Functions: If the functions of the corporation of public importance and closely related to governmental functions. [Mis-alignment due to LPG reforms]
  • if a department of Government is transferred to a corporation,

State’ article 12 and ‘Public authorities’ under RTI act

  • Under the RTI act, ‘Public authority’ is defined in Section 2(h). Whereas Article 12 of the constitution define the term ‘State’. The definition of public authority is much wider compared to the definition of state given in the RTI act.
  • The definition of Public authorities that comes under the ambit of RTI includes any authority or body or institution of self- government established or constituted—
    • by or under the Constitution;
    • by any other law made by Parliament;
    • by any other law made by the state legislature;
    • by notification issued or order made by the appropriate Government, and includes any—
      • body owned, controlled or substantially financed;
      • non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

Contemporary Relevance:

  1. Definition of Public Authority under RTI Act, 2005: Government may not have any statutory control over the NGOs, as such, still it can be established that a particular NGO has been substantially financed directly or indirectly by the funds provided by the appropriate government, in such an event, that organization will fall within the scope of Section 2(h)(d)(ii) of the RTI Act (definition of public authority). [Supreme Court judgment 2013]

Consequently, even private organizations which are, though not owned or controlled but substantially financed by the appropriate government will also fall within the definition of public authority.

  1. Should there be reservation in PPP projects in so far as the governments are resorting to PPPs for even Sovereign function?
    Answer. Both the arguments:
    In favour& against
    This is an indirect obfuscation of Articles dealing with reservation Article 15(4), Article 16(4), Article 334 and 335 Efficiency argument.

Article 13 in the Constitution of India.

Laws inconsistent with or in derogation of the Fundamental Rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force include 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, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality.

Doctrine of Eclipse

Article 13(2): The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

  • If the existing pre-Constitution law imposed on the exercise of the right guaranteed to the citizens of India by Part-III, restrictions which could not be justified, shall be void.

The court said that the law became void not in toto or for all purposes or for all times or for all persons but only “to the extent of such inconsistency”, that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the Fundamental Rights on the citizens.

The doctrine of Eclipse: [derived from Article 13(2)]

Pre- Constitution Laws in- Constitution Laws can survive outside
Constitution. Part-III, but  not inside

Article 14

Equality before law & Equal Protection of law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Difference between Equality before Law & Equal Protection of Laws
Equality before Law: means nobody shall be given special treatment by virtue of his/her Religion, race, caste, sex, place of birth and equal treatment of all the classes by the law.

Equality Before Law: Negative concept

Being Human Being Human

No

Favoritism at all i.e.
EBL does not take into the circumstances of  a person
If applied in a strict sense, it would lead to the travesty of Justice.

Equal Protection of Laws in Equal circumstances: It is a Positive concept.

As a logical corollary, If circumstances are unequal, unequal treatment could be provided so as to create at least a semblance of equality.

The real justice is when statutory provisions are tilted in favor of the disadvantaged.

The Doctrine of Equal Protection of Law says that Law has to tilt in favor of the relatively disadvantaged.

  • As political philosopher; Charles de Montesquieu said that; “In the state of nature, all men are born equal, but they cannot continue in this equality.”
  • “Society makes them lose it, and they recover it only by the protection of the law.
  • The protection of law to poor, illiterate and weak is important to ensure equal justice. Legal aid is one of the means to ensure that the opportunities for securing justice are not denied to any person by reason of poverty, illiteracy, etc.

Legal aid is free legal assistance to the poor and weaker sections of the society with the objective to enable them to exercise the rights given to them by law.

  • In this regard, Justice P.N.Bhagwati has rightly said that “the poor and the illiterate should be able to approach the Courts and their ignorance and poverty should not be an impediment in the way of their obtaining Justice from the Courts.” 

Sources/ Articles ensuring Equal Protection of Laws in Indian Constitution.

  1. The preamble of the Constitution secures to its citizen, social, economic and political justice.
  2. Article 14 of the Constitution makes it clear that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
  3. Articles 38 and 39, of the Constitution of India, lay down the clear mandate in this regard.
    According to Article 38 (1), the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic or political, shall inform all the institutions of the national life

Article 39-A directs the State to ensure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Right to free legal aid or free legal service is an essential fundamental right
guaranteed by the Constitution.

Legal/Statutory Provisions ensuring Equal Protection of Laws in Equal Circumstances:

[i]Order 33 of the Civil Procedure Code provides in respect of the suit by the indigent person. On the application to use as an indigent person is being granted the plaintiff shall not be liable to pay the court fee and in case he is not represented by a leader, the Court may, if the circumstances of the case so require, assign a leader to him.  This benefit has now been extended to the dependant also.

[ii] The Legal Services Authority Act, 1987 has been enacted to constitute the Legal Service Authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

The doctrine of reasonable classification

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. To pass the test of reasonability a particular classification must satisfy the following 2 conditions:

  1. that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and
  2. That that differentia must have a rational relation to the object sought to be achieved by the statute in question.

Class legislation makes improper discrimination by conferring particular privileges upon a class of persons and is forbidden under article 14.

The ‘doctrine of reasonable classification’ states that any state action can stand the test of Article 14, even when it differentiates people but such differentiation has to stand the test of reasonability.

Where the classification is unreasonable, a law or state action will be held invalid on the grounds of arbitrariness.

Contemporary issues

Issue of Triple talaq

  • One of the grounds on which triple talaq was held invalid was violation of article 14.
  • The judges hold that the practice of triple talaq violates Article 14 of the constitution for being manifestly arbitrary.
  • This practice was manifestly arbitrary because the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.
  • The doctrine of manifest arbitrariness allows the striking down of law under Article 14 on account of being capricious, irrational, disproportionate or excessive. It makes the classification unreasonable.
  • The arbitrariness doctrine is a well-accepted tenet of determining the scope of Article 14, where it provides a guarantee against arbitrary State action, whether exercised under the authority of law or in the exercise of executive power without making of law.

Issue of adultery

  • In August 2018, SC held that the Indian Penal Code’s section 497 on adultery violates the Fundamental Rights to Equality as it treats married men and women differently.
  • Justice RohintonNariman cited the classical Article 14 test- “where is the intelligible differentia in saying that the sanctity of marriage is not hurt if a married man has sexual intercourse with an unmarried woman? This is manifest arbitrariness”

Section 377

  • One of the grounds provided by SC for the decriminalization of homosexuality under section 377 was that It violates the right to the equal opportunity given under Article 14 of the Constitution.
  • Section 377 IPC in its present form has resulted in an unwanted collateral effect whereby even “consensual sexual acts”, which are not harmful, by the LGBTs have been woefully targeted thereby resulting in discrimination and unequal treatment to the LGBT community and is, thus, violative of Article 14 of the Constitution.

Issue of adultery

  • In August, 2018, SC held that the Indian Penal Code’s section 497 on adultery violates the Fundamental Rights to Equality as it treats married men and women differently.
  • Justice RohintonNariman cited the classical Article 14 test- “where is the intelligible differentia in saying that the sanctity of marriage is not hurt if a married man has sexual intercourse with an unmarried woman? This is manifest arbitrariness”

Section 377

  • One of the grounds provided by SC for the decriminalization of homosexuality under section 377 was that It violates the right to the equal opportunity given under Article 14 of the Constitution.
  • Section 377 IPC in its present form has resulted in an unwanted collateral effect whereby even “consensual sexual acts”, which are not harmful, by the LGBTs have been woefully targeted thereby resulting in discrimination and unequal treatment to the LGBT community and is, thus, violative of Article 14 of the Constitution.

Citizenship amendment bill (CAB)

  • The government in its defense of providing citizenship to the 6 migrated non-Muslim minorities from neighboring countries has put forward its rationale that
  • Under article 14, a legislature is entitled to make a reasonable classification for purposes of legislation and treat all in one class on equal footing.
  • Bill encompasses the “positive concept of equality” that entails “equality of treatment in equal circumstances.

Sabarimala judgement

  • A group of five women lawyers has challenged Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, which authorizes restriction on women “of menstruating age”.
  • In this case Supreme Court bench held that the devotees of Sabarimala are not a religious denomination and exclusion of women is not an essential practice. Hence women entry is allowed in the temple.
  • This ban on women was violative of article 14 because the classification to enforce ban was not based on the reasonable classification.
  • Other Examples of Contemporary Relevance:

[i]National Food Security Act

[ii] Shifting of Tamil Nadu Disproportionate Assets case outside state.
[iii] GST tax Discrimination- Lower tax on items of mass consumption
[iv] Police protection to Whistle Blowers.

[v] Because of EPL only, the Court sometimes take a sympathetic view of circumstances of
the Rape convict: Poverty, illiteracy, aged mother.

  • In order for the law to operate equally amongst all, Law should be predictable but here judiciary’s own performance is found wanting. Because the case law, as it evolves with the successive judgments of Supreme Courts is inconsistent.
    Judiciary’s stand on Preamble being a part of the Constitution.

Also read: India Slips 5 Places To 141 On Global Peace Index 2019

Global Gender Gap Report 2018 & Women Employment in India

jyoti
By jyoti July 10, 2019 14:01