The Constitution of India provides for extensive fundamental rights for the citizens of the country, which is indeed the best feature of our Constitution. However, the fundamental rights are subject to various restrictions, and there’s a heated debate about whether these restrictions are really necessary for the integrity, harmony, and sovereignty of the country, or they are just imposed to limit the rights and increase the authority of the state over the citizens. Well this is a never-ending debate, but one thing is quite clear, the Legislatures, both State and Central, have drafted some amendments and laws inconsistent with fundamental rights.
For example, the Supreme Court of India, through Shreya Singhal v. Union of India, struck down Section 66A of the Information Technology Act, 2000, due to the restrictions it placed on online speech. And the Supreme Court considered this restriction as being unconstitutional, on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution. Moreover, the Supreme Court also held that the restrictions mentioned in the law do not qualify as a ‘reasonable restriction’ on the freedom of speech mentioned in Article 19(2). The Supreme Court also struck down Section 79 of the Act.
So, the Supreme Court of India has the power to strike down laws inconsistent with fundamental rights. But where does the Supreme Court get the powers to do so? What are the Constitutional provisions about the laws inconsistent with fundamental rights? We’d be discussing all these questions in this article, and it’s important for every citizen to know such provisions, as the possibility of another law that does not respect our fundamental rights cannot be ruled out!
Laws inconsistent with Fundamental Rights
Before studying the laws inconsistent with fundamental rights, let’s first have a brief overview of the fundamental rights provided by the Indian 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)
Right to Equality –
The Right to Equality assures equality before the law and prevents discrimination on the basis of caste, religion, race, and sex. It also creates equality in terms of employment and abolishes discriminatory practices like untouchability.
Right to Freedom –
The Right to Freedom provides freedom of expression, speech, association, right to form or be a part of cooperation and union, right to resist (peacefully), right to undertake any profession, and right to life.
Right against Exploitation –
The Right against exploitation protects a person’s dignity by prohibiting human trafficking, forced labor, beggar, and child labor (employing children below the age of 14).
Right to Freedom of Religion –
The Right to Freedom asserts that all people of India are free to profess, propagate and practice any religion.
Right to Minorities (Educational and Cultural Rights)
The Right to Minorities gives the minority community of India, based on religion or language, the right to conserve its language, culture, and script, by establishing and administering educational institutions of their choice.
Right to Constitutional Remedies –
The Right to Constitutional Remedies empowers the citizens to move to the Supreme Court of India in case of denial of the Fundamental Rights provided by the Constitution of India.
Right to Property (Now reduced to a Legal Right) –
The Right to Property, as mentioned in Article 31 states that no person shall be deprived of his property save by authority of law. And if the State takes away the property of an individual for public welfare, then that person is entitled to a reasonable compensation by the State.
Constitutional Provisions for Laws Inconsistent with Fundamental Rights
Article 13 of the Indian Constitution declares that all the laws that are inconsistent with or derogation of any of the fundamental rights shall be void. This law, though expressively, provides for the ‘Doctrine of Judicial Review.’ This power of judicial review is conferred upon the Supreme Court under Article 32 and on High Courts under Article 226. Through the power of Judicial Review, the Supreme Court and High Courts can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.
And the term ‘Law’ has been expansively defined in the Article as-
- Permanent laws enacted by the Parliament or the state legislatures.
- Temporary laws like ordinances issued by the president or the state governors.
- Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation, or notification.
- Non-legislative sources of law, that is, custom or usage having the force of law.
So, along with legislation passed by the Legislatures (Central and State), all the ordinances and other orders mentioned above can be challenged in the Supreme Court and High Courts on grounds of being violative of the Fundamental Rights.
However, there was a serious problem with the provisions regarding the definition of ‘law’ as mentioned in Article 13. Because surprisingly, Article 13(3) did not mention ‘Constitutional Amendment.’ So, this was a serious loophole, which was very well exploited by the Government, as they passed several amendments which were inconsistent with the fundamental rights. And this was indeed a serious problem that affected citizens’ fundamental rights.
But then came the ‘Sage who saved democracy‘, as the Supreme Court, in Keshwananda Bharati v. State of Kerela, 1973, held that a Constitutional Amendment can also be challenged in the Supreme and High Courts, on grounds that it violates a fundamental right that forms a part of the ‘Basic Structure’ of the Indian Constitution, and hence, can be declared void.
Click here to know more about the Keshwananda Bharati Case and the Basic Structure of the Constitution.
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