What do you understand about Fundamental Rights? How did they differ from other legal rights? 

Question: What do you understand about Fundamental Rights? How did they differ from other legal rights?

• Before the decision in the Golak Nath case.

• After the decision in the Golak Nath case and up to the passing of the Constitution 24th Amendment Act, and how do they now differ from them. After the passing of the Constitution 24th Amendment Act.

• After the passing of the Constitution 42nd Amendment Act. [BJS 1977]

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Answer

Fundamental rights are basics and basic freedoms guaranteed to the individual which are inalienable by the state. The fundamental rights are freedoms guaranteed but these freedoms are not absolute, but are justiciable, which means they are judicially enforceable before the court. Articles 12 to 35 of the Indian Constitution enshrine the provisions for Fundamental rights. Fundamental rights are very important because they are like the backbone of the country. They are essential for safeguarding the people’s interests.

It is imperative to note that fundamental rights are different from legal rights. The legal rights are protected and enforced by ordinary law; on the contrary fundamental rights are protected and guaranteed by the Constitution itself. Also, fundamental rights are different from ordinary legal rights in the manner in which they are enforced. If a legal right is violated, the aggrieved person cannot directly approach the Supreme Court bypassing the lower courts.

He or she should first approach the lower courts. But for the enforcement of fundamental rights, the aggrieved party can seek relief directly from the Supreme Court as per Article 32 of the Constitution. For example, the right to property is now a legal right and not a fundamental right.

The status of fundamental rights and their enforceability in the court has been dealt with and discussed in various judicial deliberation in respect of the constitutional validity of Article 368 and the Parliament’s power to bring changes to the basic structure of the constitution:

• Shankari Prasad v. Union of India (AIR 1951 SC 458)

The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to abridge the fundamental rights under Part 3 of the Constitution of India. Supreme Court held that the power to amend the Constitution, including Fundamental Rights is contained in Article 368. An amendment is not a law within the meaning of Article 13(2) because this provision states that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention to this clause shall, to the extent of the contravention, be void.

• Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)

The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview of Article 368 and the requirements in the proviso to Article 368 had not been complied with. Supreme Court approved the judgment in Shankari Prasad’s case and held that on Article 13 (2) the case was rightly decided. The amendment includes an amendment to all provisions of the Constitution.

• Golaknath v. State of Punjab (AIR 1967 SC 1643)

The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend part III of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India, and if it violates any fundamental right, it may be declared void.

The Golaknath case created a lot of difficulties and as a result, the Parliament enacted the 24th Amendment act, 1971 whereby the power to make amendments to the constitution and the procedure thereof was given to the Parliament. However, the question regarding the extent of the power of the Parliament to amend under Article 368 was discussed in the Kesavananda Bharati Case 1973, where the Supreme Court overruled its decision in Golaknath’s case and held that even before the 24th Amendment; Article 368 contained power as well as the procedure for amendment. The majority bench held that there are inherent limitations on the amending power of the Parliament and Article 368 does not confer power so as to destroy the Basic Structure of the Constitution.

Soon after, 42nd Amendment Act, 1976 was passed by the Parliament which added clause 4 and clause 5 to Article 368. Article 368 (4) provided that no Constitutional Amendment shall be called in any court on any ground. Article 368 (5) provided that there shall be no limitation whatsoever on the constituent power of the Parliament.

• Minerva Mills v. Union of India (AIR 1980 SC 1789)

Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment. Justification for the deletion of the said clauses was based on the destruction of Basic Structure. The Court was satisfied that 368 (4) and (5) clearly destroyed the Basic Structure as it gave the Parliament absolute power to amend Constitution. Limitation on the amending power of the Parliament is a part of the Basic Structure explained in Kesavananda’s case.

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