Fundamental rights can be regarded as an improvised form of natural rights,
which derived their origins from philosophers like John Locke and Thomas Hobbes,
who established the framework for the concept of "social contract theory,"
stating that man is born "with a title to perfect freedom and an uncontrolled
enjoyment of all the rights and privileges of the Law of Nature" and has a
right to protect his life, estate, and liberty from other individuals.
documents are vital for both individual and community evolution. A delicate
balance between individual liberties and the good of the group is essential when
exploring how basic rights connect to societal concerns. This blog tries to
justify and critically analyse the significant value of fundamental rights with
reference to the Article 13 of Constitution of India.
Weighing the Validity: Fundamental Rights and Their Justifiability in the Indian
Fundamental rights, enshrined in Part III of the Indian Constitution, play a
pivotal role in upholding individual freedoms and fostering democracy and
societal equity. It forms the foundation upon which the nation is built. Justice
P.N. Bhagwati stated, "Fundamental rights in India reflect the values treasured
by the people for centuries, dating back to Vedic times. They exist to protect
individual dignity and enable each person to develop their personality to the
Article 13 of the Indian Constitution is pivotal in empowering the judiciary
to review and invalidate laws or actions infringing upon these sacrosanct
rights, mandating both pre-constitutional & post-constitutional laws to align
with the provisions of the Constitution. Its principal objective is to reinforce
the Constitution's supremacy, particularly in matters relating to fundamental
rights. Additionally, Article 13 facilitates the judicial review of all
legislation in India, encompassing both historical and future enactments. This
power is conferred to the high courts under Article 226 and to the Supreme
Court under Article 32.
Key Provisions of Article 13Article 13(1):
Pre-Constitutional Laws: It stipulates that any law prevailing
within India's geographical boundaries before the Constitution's commencement if
in contradiction with the Part III, it shall be rendered invalid to the extent
of that contradiction. In Keshava Madhav Menon V. State of Bombay, the
supreme court held that the fundamental right protecting individuals from
prosecution and the operative effect of punishment for offences committed before
the Constitution's enactment was nullified, as the Constitution was not in force
at the time of the occurrence.
Post-Constitutional Laws: It prevents the state from enacting
laws that infringe upon the fundamental rights adhered in our Indian
Constitution. Any such law is considered void if it contravenes fundamental
Definition of 'law� and 'law in force�: Clause (a) broadly
defines 'law� as "any ordinance, order, bye-law, rule, regulation, notification,
custom or usage that have the force of law in the Territory of India". It
also covers the administrative orders by any executive officer. Personal laws
are not covered within the ambit of law under this article.
Clause (b) defines 'law in force� as having the extended scope to encompass
legislations and regulations enacted by competent authorities in India before
the Constitution's commencement, provided they have not been repealed earlier.
Article 13(4): Regarding Amendment:
It states that "nothing in this article
shall apply to any amendment of this Constitution made under Article 368".
Art. 368 holds the power of constitutional amendment. The court in Sajjan Singh
V. State of Rajasthan
, held that the amendment of the constitution refers to
amendment of all the provisions. But in Kesavananda Bharati V. State of
, the courts laid the basic structure doctrine thus stating that the
basic structure can�t be amended.
Interpretations and Doctrines
Doctrine of Severability: The doctrine of severability asserts that when a
statute contains provisions inconsistent with fundamental rights, only those
particular clauses are declared void, leaving the rest of the law intact. In A.K.
Gopalan�s case, the Court rendered Section 14 of the Preventive Detention
Act, 1950, ineffective due to a breach of the fundamental right protected under
Article 22 of the Constitution, while the rest of the act remained applicable.
There is also an exception which states that if the act loses its essence after
severing the unconstitutional part, then the whole act must be declared
Doctrine of Eclipse:
This doctrine suggests that a law inconsistent with
fundamental rights is not entirely void but remains dormant until it is
rectified or amended by the legislature (only for pre-constitutional laws). It
is said to be over-shadowed by the fundamental rights while remaining
Doctrine of Waiver:
While individuals cannot waive their fundamental rights,
this doctrine emphasizes that constitutional rights cannot be voluntarily
relinquished. In a case it was held that an accused person can�t voluntarily
gave up his constitutional rights and get convicted.
Constitutional Amendment and Article 13(2)
The authority for amending the Indian Constitution resides with Parliament as
per Article 368. Initially, there was dispute over whether amendments to the
constitution fell within the ambit of Article 13(2). This problem was resolved
in the landmark case of Kesavananda Bharati v. State of Kerala, where the
Supreme Court recognized the legitimacy of the Constitution (24th Amendment)
Act, 1971, and established that constitutional changes do not qualify as 'law'
under Article 13(2).
Striking the Balance: Individual Rights and the Common Good
The key element in assessing the justifiability of fundamental rights lies in
striking a proper equilibrium between individual rights and the welfare of
society as a whole. In numerous instances, the Indian Judiciary has strongly
highlighted the importance of maintaining this equilibrium. In A.K. Gopalan V.
State of Madras
, it is stated that "humans have many desires since they are
However, because of the coexistence of other people in a civil
society, these desires must be regulated", this statement highlights the
importance of the balance between the two aspects. It is crucial to recognise
that unchecked and absolute power can lead to corruption, and unrestrained
rights can disrupt societal order
The justifiability of fundamental rights in the Indian Constitution is integral
to upholding democracy, individual freedoms, and societal harmony. Enshrined in
Part III of the Constitution, these rights are the foundation of the nation's
identity. Article 13 acts as a guardian with its interpretative doctrines,
ensuring that no law can infringe upon them without scrutiny.
individual rights with the welfare of society is essential to prevent unchecked
power and maintain societal order. Ultimately, fundamental rights are justified
by their role in preserving personal dignity, fostering individual growth, and
facilitating harmonious coexistence, reaffirming their enduring significance in
India's democratic framework.
- Priyanka Sinha, The Fundamental Rights in England, USA and India, 24 SUPREMO AMICUS 1106, (2021).
- Constitution of India, 1950, � 13, No. 1, Acts of Parliament, 1950 (India).
- Renu V. District and Session judge, Tis Hazari, AIR 2014 SC 2175.
- Constitution of India, 1950, � 226, No. 1, Acts of Parliament, 1950 (India).
- Constitution of India, 1950, � 32, No. 1, Acts of Parliament, 1950 (India).
- AIR 1951 SC 128.
- Constitution of India, 1950, � 13(3)(a), No. 1, Acts of Parliament, 1950 (India).
- Jesingbai V. Emperor, AIR 1950 Bom 363.
- Bhan Ram V. Baijnath, AIR 1962 SC 1476.
- Constitution of India, 1950, � 368, No. 1, Acts of Parliament, 1950 (India).
- AIR 1965 SC 845.
- AIR 1973 SC 1461.
- A.K. Gopalan V. State of Madras, AIR 1951 SC 21.
- R.M.D.C. V. UoI, AIR 1957 SC 628.
- Bhikaji Narayan V. State of MP, AIR 1955 SC 781.
- Behram V. State of Bombay, AIR 1955 SC 146.
- AIR 1973 SC 1461.
- AIR 1951 SC 21.