Cultural And Educational Rights (Articles 29 and 30)
This is an important topic in polity and governance for the UPSC IAS Exam.
Under Article 29 and 30, certain cultural and educational rights are guaranteed. Section (1) of Article 29 guarantees the right of any section of the citizen residing in any part of the country having a distinct language, script or culture of its own, to conserve the same. Section (2) prohibits any discrimination based only on religion, race, caste, language or any of them in the matter of admission to State or State-aided educational institutions. Section (1) of Article 30 provides that “all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”. According to section (2) the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of minority community, whether based on religion or language.
Article 30 is a charter of educational rights. It guarantees in absolute terms the right of linguistic and religious minorities to establish and administer educational institutions of their choice and, at the same time, claim grants-in-aid without any discrimination based upon religion or language. The fact that the Constitution does not impose any express restriction in the scope of the enjoyment of this right, unlike most of the rights included in the chapter on Fundamental Rights, shows that the framers intended to make its scope unfettered. This does not, however, mean that the State cannot impose reasonable restrictions of the regulatory character for maintaining standards of education. This point has been made abundantly clear in judicial pronouncements.
Taking the right guaranteed under religious, educational and cultural fields as a whole, it will be noted that these are couched in the most comprehensive language, and the maximum possible freedom is guaranteed to the minorities, religious and linguistic. The special significance of these provisions is that while the impact of other rights in Part-Ill of the Constitution is on the people of India as a whole, irrespective of religion, caste, race, or language, that of these rights is only on the minorities. The democratic basis of the Constitution would be lost if the minorities were not given adequate protection to preserve their religious beliefs, and institutions of education and culture, the Constitution may then be branded as an instrument for the furtherance of the majority community and the language of the majority. Naturally, resentment against such a position would manifest all over the country, as religious minorities total not less than 500 million. Moreover, such a position would have discredited the foundation of the national movement against foreign rule, in which every religious and linguistic minority in India was represented and solemn promises had been made by representative of the majority community to safeguard the legitimate interests of the minorities against all forms of tyranny in a free India.
The Right to Property
(Articles 31,31-a,31-b,31-c, and 31-d)
One of the Article that experienced the greatest difficulty in getting into the Constitutional Assembly was that which dealt with the right to property under Article 31. But the form in which it was originally adopted and included in the Constitution was not destined to last long enough to justify the prolonged and even protracted discussions that preceded its adoption. That is why, of all the rights included in the chapter on Fundamental Rights and indeed of all provisions of the Constitution, the right to property has been the one which was subjected to the largest number of Amendments. The first Amendment, Fourth Amendment, Seventeenth Amendment, Twenty fifth Amendment, Forty-fourth Amendment have all tried to modify the right in some form or other.
It shows on the one hand the complex nature of the right itself and on the other difficulty of the State to find a satisfactory balance between the individual’s right to property and its social control under laws made by the State. The result has been the latest Amendment which proved to be an anti-climax by removing the right to property from the status which it enjoyed as a Fundamental Rights.
31-A Saving of Laws Providing for Acquisition of Estates Etc.
- the acquisition by the State of any estate or of any right therein or the extinguishment
or modification of any such rights, or.
- the taking over the management of any property by the State for a limited period
either in the public interest or in order to secure the proper management of the
- the amalgamation of two or more corporations either in the public interest or in order
to secure the proper management of any of the corporations, or
- the extinguishment or modification of any right of managing agents, secretaries and
treasures, managing directors, directors or managers of corporations, or of any voting
rights of share holders thereof, or
- the extinguishment or modification of any rights accruing by virtue of any agreement,
lease or licence for the purpose of searching for, or mining any such mineral oil, or
the premature termination or cancellation of any such agreement, 1 lease or licence
shall be deemed to be void on the ground that it is consistent with, or takes away or
abridges any of the rights conferred by Article 14 or Article 19.
Provided that where such law is a law made by the legislature of a state, the provisions of this Article shall not apply there to unless such law, having been reserved for the consideration of the President, has received this assent. Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprise therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provided for payment of compensation at a rate which shall not be less than the market value thereof.
2.In this article,
- a) the expression ‘estate’, shall, in relation to any local area, have the same meaning as
that expression or its local equivalent has in the existing law relating to land tenures
in force in that area and shall also include.
(i) any jagir, inam, or muafi or other similar grant and in the State of Tamil Nadu and Kerala, any janman right.
- ii) any land held under ryotwari set lament;
iii) any land held or let for purposes of agriculture or for purpose ancillary there to, including waste land, forest land, land for pasture or sites or buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
- b) the expression ‘right’ in relation to an estate, shall include any right vested in a
proprietor, sub-proprietor, under proprietor, tenure-holder, ryot, under -ryot or other
intermediary and any rights or privileges in respect of land revenue.
31-B Validation of Certain Acts and Regulations:
Without prejudice to the generality of the provisions contained in Article 31-A, none of the Acts and Regulations specified in the Ninth Schedule, nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgement, decree or order of any court or tribunal to the country each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force.
31 -C Saving of Laws Giving Effect to Certain Directive Principles
Notwithstanding anything contained in Article 13, no law giving effect to the policy of State towards securing all or any of the principles laid down in part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.
“Provided that where such law is made by the legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
Right to Constitutional Remedies (Articles 32 & 32A)
A right without a remedy is but a worthless declaration. A right becomes valuable when there is an effective means to implement it. The existence of a right is felt only through the pronouncements of a court. Dr. Ambedkar regarded Art. 32 as the most important article of the Constitution without which this Constitution would be a nullity… It is the very soul of the Constitution and the very heart of it.
The right to move the Supreme Court where a fundamental right has been infringed is itself a fundamental right. It is a constitutional remedy which has been guaranteed by the Constitution. What is guaranteed is the right to move the Supreme Court by appropriate proceedings. Let us now consider the various notings related with this article.
The Supreme Court has to be moved by appropriate proceedings. It means proceedings which may be appropriate having regard to the nature of order, direction or writ which the petitioner seeks to obtain from the court. The Court has been extremely liberal and favourable to the petitioner who approaches it. When it relates to the enforcement of fundamental rights of the poor, disabled or ignorant even a letter addressed by him to the Court can legitimately be regarded as an appropriate proceeding. The letter need not be in any particular form. It may not be addressed to the Court or the Chief Justice. Postcards addressed to any judge have been entertained as appropriate proceedings. It has come to be known as epistolatory proceedings. Appropriate proceedings may not be adversary proceedings which are aimed at or against a particular person. They may be inquisitorial where the court will make general inquiries to find out whether a fundamental right is being trammeled.
Effect of Guarantee
The effect of the use of the word guaranteed in Cl. (1) of Art. 32 is that the right to move the Supreme Court where a fundamental right has been infringed is itself a fundamental right. The following consequences flow from this guarantee: –
- The right cannot be suspended except as provided in Art. 359.
- Supreme Court is the guarantor of fundamental rights and it is the duty of the Supreme Court to grant relief under Art. 32 where a fundamental right has been violated.
III. An aggrieved person may approach the Supreme Court in the first instance. He need not move a High Court.
- Available of alternate remedy is no bar to relief under Art. 32.
- There is no territorial limitation to the powers of the Supreme Court.
- The grant of a writ is not discriminatory but as a matter of right.
VII. The right cannot be abridged or taken away by legislation.
The principles of res judicata apply to a writ petition under Art. 32. But the rule of res judicata is not applicable to the writ of Habeas Corpus. Where a petitioner is refused a writ by a High Court he can file a petition in Supreme Court.
It may generally be said that any person whose fundamental rights have been infringed has the right to approach the Supreme Court. The power given to the Supreme Court by Art. 32 is only for the enforcement of fundamental rights. For violation of other rights the remedy is to be sought from appropriate courts.
Public Interest Litigation
The traditional rule stated above called the requirement of locus standi has been relaxed by the Supreme Court. The rule of standing which confined access to the court only to those to whom a wrong has been done has been broken. There had been a feeling that legal procedure is a strait-jacket which restricts all but the rich. The law courts like the Taj hotel are open to all. The person whose pocket allows enter the portals. The Court has opened its doors for the poor and the have-nots by relaxing or sometimes even throwing overboard the rule of locus standi. The Supreme Court allows a public spirited citizen or a social organisation to move the Court for the enforcement of Constitutional and other legal rights of any person or group of persons who because of their poverty or disadvantaged position are themselves unable to approach the Court. It was this opening the doors by permitting Public Interest Litigation (also called Social Interest Litigation) that the Asiad Workers realized their dues, the bonded labourers secured their freedom, the children and the women get special consideration and protection, the pavement dwellers secured shelters, the hawkers got the right to carry on their trade, Mussoorie and Alwar
The above writs were known in England as prerogative writs and also High Prerogative Writs. The writs of right e.g. writ of summons could be obtained by a litigant by paying the prescribed fees. They could be had as a matter of right. A prerogative writ was issued only when the court was satisfied that a probable cause existed and the court should exercise its extraordinary power to assist the petitioner. These writs were issued in the exercise of the King’s prerogative. We shall now proceed to consider the various writs.
were protected from dangerous mining, and even the prisoners in jail got a right to be treated as a human being.
It is now clearly and firmly established that any member of the public having sufficient interest can approach the court for enforcing the rights of other persons and redressal of a common grievance.
Locus Standi is not dead
The liberal view of permitting PIL (Public Interest Litigation) does not mean that locus standi is completely dead and buried. The court does not allow a person to abuse the legal process pretending to be a public spirited person. The court scrutinizes the proceeding to find out whether it will serve a public purpose. One Krishna Swami a member of Parliament filed a petition before the Supreme Court. He prayed that the motion supported by 108 members of parliament for removal of Justice V. Ramaswami of the Supreme Court be quashed. The court held that the petitioner had no locus standi to file the petition. There was no public purpose in filing the petition.
Effect of PIL
Some judges and jurists have sounded a note of caution against PIL. It increases the workload so that regular matters are delayed. PIL is a sort of interference by the courts in matters which strictly fall in the domain of the executive. This leads to friction between the different organs of the State. The court has no means to enforce its orders. But none of this has deterred the courts in their commitment to help the disadvantaged. PIL has generally been welcomed. It has been able to secure relief for those who did not even know that there is a law to protect them and look after their welfare. Public authorities are now more circumspect in exercising their powers. A measure of accountability has come to all those who wield power.
Clause (2) of Art. 32 empowers the Supreme Court to issue directions, orders or writs which may be appropriate. The writs enumerated are Habeas Corpus, mandamus, prohibition, quo warranto and certiorari. Parliament has the power to make law empowering any court to issue these writs. No such law has been made. So the Supreme Court and the High Courts (Under Art. 226) are alone authorised to issue such writs.
Habeas -corpus is a Latin term which literally means “You may have the body”. Under the law of England, as a result of long usage, the term came to signify a prerogative writ, a remedy with which a person unlawfully detained is sought to be set at liberty. It is mentioned as early as the fourteenth century in England and was formalized in the Habeas corpus Act of 1679. The privilege of the use of this writ was regarded as a foundation of human freedom and the British citizen insisted upon the privilege wherever he went whether for business or colonization. This is how it found a place in the Constitution of the United States when the British colonies in America won their independence and established a new State under that Constitution.
In India, under the Constitution, the power to issue writ of habeas corpus is vested only in the Supreme Court and High Court. The writ is a direction of the Court to a person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose.
The writ shall be issued where, –
(a) the detention is in violation of the prescribed rules of procedure, e.g. the detinue is not produced before a magistrate within the prescribed period.
(b) the order of arrest is in violation of any law e.g. an arbitrary order.
(c) a person has been detained by a private individual.
(d) a person is detained under a law which is unconstitutional.
(e) the order of detention is malafide.
A writ of habeas-corpus has only one purpose : to set at liberty a person who is confined without legal justification : to secure release from confinement of a person unlawfully detained. The writ does not punish the wrongdoer. If the detention is proved unlawful, the person who secures liberty through the writ may proceed against the wrongdoer in any appropriate manner. The writ is issued not only against authorities of the State but also to private individuals or organisations if necessary.
The latin word ‘mandamus’ means *we order’. The writ of ‘mandamus’ is an order of the High Court or the Supreme Court commanding a person or a body to do that which it is his, or its duty to so. Usually, it is an order directing the performance of ministerial acts. A ministerial act is one which a person or body is obliged by law to perform under given circumstances. For instance, a licensing officer is obliged to issue a licence to an applicant if the latter fulfills all the conditions laid down for the issue of such licence. Similarly, an appointing authority should issue a letter of appointment to a candidate if all the formalities of selection are over and if the candidate is declared fit for the appointment. But despite the fulfillment of such conditions, if the officer or the authority concerned refuses or fails to issue the appointment letter, the aggrieved person has a right to seek the remedy through a writ of ‘mandamus’.
There are three essential conditions for the issue of writ of ‘mandamus’. First, the applicant must show that he has a real and special interest in the subject matter and a specific legal right to enforce. Secondly, he must show that there resides in him a legal right to the performance sought, and finally, that there is no other equally effective, convenient and beneficial remedy.
Before Mandamus is issued the following conditions must be satisfied.
(1) The petitioner must show that he has a legal right and that the person against whom the mandamus is sought has a legal duty.
(2) The duty must be imposed by law (Constitution, Act, subordinate legislation etc.)
(3) The petitioner moved the authority for performing the legal duty but the authority has either not acted or
refused to act. This is in short called demand and refusal.
(4) The public authority is acting under a law which is unconstitutional.
Mandamus will not lie, –
(1) where there is a discretion to act or not to act as distinguished from a duty the authority cannot be ordered to exercise the discretion.
(2) against a private individual or organisation unless they are entrusted with a public duty.
(3) to enforce a contract against the government, but may in appropriate cases issue as promissory estoppel to enforce a promise made by the government relying on which the petitioner has altered his position to his prejudice.
(4) against a company even though it may be a government company.
Mandamus will not issue against, –
(a) The President or the Governor of a State for the exercise or performance of the duties of his office.
(b) The High Court or its chief justice or a judge acting in judicial capacity but may lie in its administrative capacity to question appointments, or disciplinary orders etc.
A writ of prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction or acting contrary to the rule of natural justice, for example, to restrain a judge from hearing a case in which he is personally interested. The term ‘inferior courts’ comprehends special tribunals, commissions, magistrates and officers who exercise judicial powers, affecting the property or right of the citizen and act in a summary way or in a new course different from the common law. It is well established that the writ lies only against a body exercising public functions of a judicial or quasi -judicial character and cannot in the nature of things be utilised to restrain legislative powers.
The court readily grants prohibition where, –
(a) the defect of jurisdiction is apparent on the face of the record i.e. it is patent and does not need much argument to make it clear.
(b) a fundamental right is infringed.
(c) an inferior court or tribunal has entertained an appeal where no appeal lies under an Act.
(d) the inferior tribunal is biased.
(e) an authority is acting under a law which is unconstitutional or ultra vires.
Certiorari is an ancient prerogative writ which order the removal of a suit from an inferior court to a superior court. It may be used before a trial to prevent an excess or abuse of jurisdiction and to remove the case for trial to a higher court. It is invoked also after trial to quash an order which has been without jurisdiction or in defiance of the rules of natural justice.
Often a writ of Certiorari is sought along with prohibition, so that not merely may an invalid act be reviewed by a superior court (certiorari), but its operation may also be restrained (prohibition). While prohibition and certiorari are so intimately related to each other, prohibition is the converse of mandamus. The former is invoked to prevent a court or other authority form doing something which it has not the power to do, while the latter is called in aid to require it to do something which it is bound to do.
Certiorari lies against an authority which is acting within its jurisdiction but has violated the principles of natural justice. Natural Justice comprises of several rules. They are—
- The authority must give reasonable notice to the party likely to be affected to meet the case or allegation against him.
- Such party must be afforded a reasonable opportunity of being heard. What is reasonable will depend on the circumstances of the case. Generally it is agreed that the affected party must be given full opportunity to adduce evidence on which it relies. The evidence of the other party must be recorded in its presence. No evidence should be taken behind the back of any party. Documents should not be withheld from any party. Opportunity must be given to cross examine witnesses of the opposite party. This is called audi alteram party.
- The authority must give its decision on the material before it and on merits. It is against the principles of natural justice to decide according to the instructions of a superior officer or in conformity to a predetermined policy.
- The person who hears must decide the case.
- No person can be a judge in his own cause.
Difference between Prohibition and Certiorari
There are similarities between the two writs Prohibition and Certiorari. They are issued against judicial or quasi-judicial authorities. They are meant to confine the authorities within the limits of their jurisdiction. The grounds on which they are issued are similar. But there are material differences in the scope of these two writs.They are issued at different stages of proceedings. If an inferior court having no jurisdiction in a matter takes it up for hearing the aggrieved person can petition for Prohibition. If such a court hears the matters and gives a decision the proper remedy is Certiorari quashes the decision on the ground of excess or want of jurisdiction. Prohibition issues where the court has not reached and passed the stage of giving a decision. Prohibition lies where the matter is pending and there is something to be prevented. After decision the matter is disposed of so the proper remedy is Certiorari.
The writ of quo warranto is a common law process of great antiquity. According to this, the High Courts or the Supreme Court may grant an injunction to restrain a person from acting in a office to which he is not entitled and may also declare the office to be vacant. What the court has to consider in an application for a writ of quo warranto is whether there has been usurpation of an office of a public nature and office is substantive in character, i.e., office independent in title. It is a remedy given by law at the discretion of the Court and is not issued as a matter of course.
An application for the issue of a writ of quo warranto is maintainable only in respect of offices of public nature which are the creation of statute and not against private institutions.
The writ of Quo Warranto will issue if the following conditions are satisfied.
- The office must be a public office, an office of public nature. An office in which the public are interested. The treasurer of a society or a charitable trust is not a public office. The office of advocate-general is a public office and so is a judge of the High Court.
- The office must be a substantive office. It means an office independently entitled. A ministerial post where a person has to discharge the functions of a deputy or servant at the pleasure of another is not a substantive office.
- The petitioner in case of Quo Warranto does not seek to enforce any right of his. The petitioner is not required to be a claimant to that office or to have any personal interest in it. Quo Warranto proceeding is an exception to the rule that only a person who is aggrieved may apply for a writ. Any public minded person can move the court.
Various Writs Distinguished From Each Other
- Mandamus commands activity Prohibition orders inactivity. Prohibition stops an authority in the middle of a proceedings. It prevents usurpation of jurisdiction.
- Mandamus is generally addressed to administrative authorities. Certiorari and Prohibition generally control the courts and tribunals.
- Certiorari and Prohibition are instruments to control an inferior tribunal which has exceeded its jurisdiction or wrongly exercised its jurisdiction. Mandamus is issued against an inferior tribunal which has declined to exercise its jurisdiction.
- Mandamus may direct a tribunal to proceed according to law. Certiorari quashes the proceedings or removes the proceedings to itself on the ground of lack of jurisdiction or error apparent on the face of the record etc.
- The grounds for issue of Certiorari and Prohibition are the same Prohibition is issued at an earlier stage when the matter has not come to a close, to prevent the tribunal from going ahead. Certiorari lies where a tribunal after exercising jurisdiction where it had none or exceeding its jurisdiction where it had some, handed over a final decision.
- The object of Prohibition is prevention. The object of Certiorari is prevention and cure both.
- Mandamus commands a person to perform a function which it is under a legal duty to perform. Quo warranto is an enquiry to ascertain whether a person holding an office has legal authority to do so. When he is not able to support his claim he may be ordered to vacate.
Articles 32 and 226
The Supreme Court has been empowered by Art. 32 to issue directions, orders or writs for the enforcement of fundamental rights. A High Court has under Art.226 such powers not only in relation to fundamental rights but also for any other purpose. Thus the power of a High Court is wider. It can be invoked for any other purpose while access to Supreme Court under Art. 32 is only for the purpose of enforcement of a fundamental right.
Article 32 is a basic feature of the Constitution. It cannot be omitted by amending the Constitution. Article 32 being a fundamental right an aggrieved person may access the Supreme Court directly, that is, without first resorting to the High Court.
When martial law has been in force in any area, Parliament may, by law, indemnify any person in the service of the Union or a State for any act done by him in connection with the maintenance or restoration of order in such area or validate any sentence passed or act done while martial law was in force [Art. 34].
Affecting Certain Fundamental Rights
Article 35 lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures. This provision ensures that there is uniformity throughout India with regard to the nature of those fundamental rights and punishment for their infringement. In this direction, Article 35 contains the following provisions:
- The Parliament shall have (and the legislature of a state shall not have) power to make laws with respect to the following matters:
- Prescribing residence as a condition for certain employment’s or appointments in a state or union territory or local authority or other authority (Article 16).
- Empowering courts other than the Supreme Court and the high courts to issue directions, orders and writs of all kinds for the enforcement of fundamental rights (Article 32).
- Restricting or abrogating the application of Fundamental Rights to members of armed forces, police forces, etc. (Article 33).
- Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34).
- Parliament shall have (and the legislature of a state shall not have) powers to make laws for prescribing punishment for those acts that are declared to be offences under the fundamental rights. These include the Untouchability (Article 17) and Traffic in human beings and forced labour (Article 23). Further, the Parliament shall, after the commencement of the Constitution, make laws for prescribing punishment for the above acts, thus making it obligatory on the part of the Parliament to enact such laws.
- Any law in force at the commencement of the Constitution with respect to any of the matters specified above is to continue in force until altered or repealed or amended by the Parliament.
It should be noted that Article 35 extends the competence of the Parliament to make a law on the matters specified above, even though some of those matters may fall within the sphere of the state legislatures (i.e., State List).
Exceptions to Fundamental Rights
- Saving of Laws Providing for Acquisition of Estates, etc.
Article 31A saves five categories of laws from being challenged and invalidated on the ground 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.). They are related to agricultural land reforms, industry and commerce and include the following:
(a) Acquisition of estates and related rights by the State;
(b) Taking over the management of properties by the State;
(c) Amalgamation of corporations;
(d) Extinguishment or modification of rights of directors or shareholders of corporations; and
(e) Extinguishment or modification of mining leases.
This Article also provides for the payment of compensation at 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 saves the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights. Thus, the scope of Article 31B is wider than Article 31A. Article 31B immunises any law included in the Ninth Schedule from all the fundamental rights whether or not the law falls under any of the five categories specified in Article 31A.
However, in the Kesavananda Bharati case 19 (1973), the Supreme Court ruled that the acts and regulations that are included in the Ninth Schedule are open to challenge on the grounds of being violative of the basic structure of the Constitution.
- Saving of Laws Giving Effect to Certain Directive Principles
Article 31 C, as inserted by the 25th Amendment Act of 1971, contained the following two provisions:
(a) No law that seeks to implement the socialistic directive principles specified in Article 39(b) or (c) shall be void on the ground of contravention of the fundamental rights conferred by Article 14 (equality before law and equal protection of laws) or Article 19 (protection of six rights in respect of speech, assembly, movement, etc.)
(b) 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.
In the Kesavananda Bharati case (1973), the Supreme Court declared the above second provision of Article 31 C as unconstitutional and invalid on the ground that judicial review is a basic feature of the Constitution and hence, cannot be taken away. However, the above first provision of Article 31C was held to be constitutional and valid.
The 42nd Amendment Act (1976) extended the scope of the above first provision of Article 31 C by including within its protection any law to implement any of the directive principles specified in Part IV of the Constitution and not merely in Article 39 (b) or (c). However, this extension was declared as unconstitutional and invalid by the Supreme Court in the Minerva Mills case 24 (1980).
Criticism of Fundamental Right
The Fundamental Rights enshrined in Part ill of the Constitution have met with a wide and varied criticism. The arguments of the critics are:
- Rights are subject to Excessive Limitations: They are subjected to innumerable exceptions, restrictions, qualifications and explanations. Hence, the critics remarked that the Constitution grants Fundamental Rights with one hand and takes them away with the other.
- There are No Social and Economic Rights in the list: The list is not comprehensive as it mainly consists of political rights. It makes no provision for important social and economic rights like right to social security, right to work, right to employment, right to rest and leisure and so on. These rights are made available to the citizens of advanced democratic countries.
- It lacks in Clarity: They are stated in a vague, indefinite and ambiguous manner. The various phrases and words used in the chapter like ‘public order’, ‘minorities’, ‘reasonable restriction’, ‘public interest’ and so on are not clearly defined. The language used to describe them is very complicated and beyond the comprehension of the common man. Sir Ivor Jennings called the Constitution of India a ‘paradise for lawyers’.
- No Guarantee of Permanency: They are not sacrosanct or immutable as the Parliament can curtail or abolish them, as for example, the abolition of the fundamental right to property in 1978. Hence, they can become a play tool in the hands of politicians having majority support in the Parliament. The judicially innovated ‘doctrine of basic structure’ is the only limitation on the authority of Parliament to curtail or abolish the fundamental right.
- Suspension during Emergency: The suspension of their enforcement during the operation of National Emergency (except Articles 20 and 21) is another blot on the efficacy of these rights. This provision cuts at the roots of democratic system in the country by placing the rights of the millions of innocent people in continuous jeopardy.
- Provision of Preventive Detention: The critics assert that the provision for preventive detention (Article 22) takes away the spirit and substance of the chapter on fundamental rights. It confers arbitrary powers on the State and negates individual liberty. It justifies the criticism that the Constitution of India deals more with the rights of the State against the individual than with the rights of the individual against the State.
Sir Ivor Jennings expressed this view when he said that the Fundamental rights proclaimed by the Indian Constitution re based on no consistent philosophy.25 The critics say that this creates difficulty for the Supreme Court and the high courts in interpreting the fundamental rights.