In the last article, we discussed the Laws Inconsistent with Fundamental Rights, in this article we’d be discussing the exceptions to Fundamental Rights.
Exceptions to Fundamental Rights
The Constitution of India, under Part III (Article 12-35), provides for extensive fundamental rights for the citizens of the country, which is indeed the best feature of our Constitution. These Fundamental Rights embody certain noble principles on which our Constitution is based upon. These rights are guaranteed to the citizens of India by the Constitution and it is the responsibility of the Judiciary to uphold and safeguard the fundamental rights of the people.
However, there are certain exceptions to these Fundamental Rights, many of which are implemented through the various Constitutional Amendment Acts. And there’s a debate whether these exceptions are justified or not, and these have been challenged in the Courts too, especially those exceptions which were made to give effect to certain Directive Principles of State Policy.
Click here to read about one of the most important cases in Indian history about the exceptions to fundamental rights, which ultimately saved our democracy.
Before understanding the exceptions to Fundamental Rights, let’s have a brief understanding of the various Fundamental Rights guaranteed by the Constitution:
- Right to Equality
- Right to freedom
- Right against Exploitation
- Right to Freedom of Religion
- Right to minorities (educational and cultural rights)
- Right to Constitutional Remedies
- Right to Property (Initially provided in the constitution, removed by the 44th Constitutional Amendment in 1978)
Saving of Laws Providing for Acquisition of Estates, etc (Article 31A)
The First Amendment added a new clause 31(A). It stated that if an individual’s property is seized under the Land Reform policies, then the provisions of Article 31 (Right to Property) shall not be applicable to that seizure. Hence, this solved the dilemma for the Government and the Supreme Court, as no one can challenge the policies of land redistribution and land ceiling in the Supreme Court on the ground of Right to Property.
There are 5 categories of Laws that cannot be challenged and invalidated on the grounds of contravention of the fundamental rights conferred by Article 14 (equality before law and equal protection of laws) and Article 19 (protection of six rights in respect of speech, assembly, movement, etc). Article 31A of the Constitution provisions for such exceptions.
These laws are basically related to agricultural land reforms, industry, and commerce. These include:
- Acquisition of estates and related rights by the state;
- Taking over the management of properties by the State;
- Amalgamation of corporations;
- Extinguishment or modification of rights of shareholders of corporations;
- Extinguishment or modification of mining leases.
Article 31A does not protect a State Law from Judicial Review unless it has been reserved for the President’s consideration and has received his assent.
Moreover, the law provisions for the payment of compensation at a market value when the State acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limit.
Validation of certain Acts and Regulations (Article 31B)
Article 31(B) added Ninth Schedule to the constitution of India. The acts, passed by the Central and State legislative assemblies, that are included in the ninth schedule, would not be eligible for Judicial Review by the Supreme Court or the High Court. It means that the Supreme Court or the High Court cannot do a Judicial Review of the acts that are included in the Ninth Schedule.
*Judicial Review – A process by which the Judiciary checks whether the actions of the Legislative, Executive, and Administrative are compatible with the constitution i.e. whether the action is justified by the constitution. And if the Judiciary finds the action to be incompatible, then it has the power to nullify the action. For example, if an act passed by the parliament is inconsistent with our constitution, then the Supreme Court can nullify that act.
Article 31B immunizes any law included in the ninth schedule of the Constitution from all the fundamental rights whether or not the law falls under any of the five categories specified under Article 31A.
However, the Supreme Court of India ruled in the I.R. Coelho v. State of Tamil Nadu (2007) case that Judicial Review comprises the Basic Structure of the Constitution, and it could not be taken away by putting a law under the Ninth Schedule of the Constitution. So, the Supreme Court held that the laws placed under Ninth Schedule after 24th April 1973 could be challenged in the court of law if they violated any of the fundamental rights guaranteed under Articles 14, 15, 19, and 21 or the basic structure of the Constitution
Saving of laws giving effect to certain Directive Principles of State Policy
The 25th Constitutional Amendment Act, 1971, inserted Article 31C into the Indian Constitution, and this Article provided for the following exceptions to fundamental rights:
- No law that seeks to implement the socialistic directive principles specified in Article 31(b) or (c) shall be void on the ground of contravention of the Fundamental Rights conferred by Article 13 ( equality before law and equal protection of laws) or Article 19 (protection of six rights in respect of speech, assembly, movement, etc.)
- No law containing a declaration that it is for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy.
However, in the Kesavananda Bharati v. State of Kerela case, the Supreme Court struck down the second provision of this Article and declared it unconstitutional as it snatches the power of judicial review from the Supreme Court, and as judicial review is a basic feature of the Constitution, it cannot be taken away.
Through the 42nd Constitutional Amendment Act 1976, the scope of the first provision of Article 31C has been extended by including within its protection any law to implement any of the directive principles mentioned under Part IV of the Constitution.
But again, this extension was declared invalid and unconstitutional by the Supreme Court in the Minerva Mills v. Union of India case.
Criticisms of the exceptions to Fundamental Rights
As we can observe, the Fundamental Rights provided by the Constitution are subject to various exceptions, restrictions, qualifications, and explanations. The critics stated that the Constitution, on one hand, grants various Fundamental Rights and takes them away with the other hand.
The foremost critic of the exceptions to Fundamental Rights was Jaspat Roy Kapoor (Former MP from Uttar Pradesh), who even stated that the chapter dealing with the Fundamental Rights should be renamed as ‘Limitations on Fundamental Rights’ or ‘Fundamental Rights and Limitations Thereon.’