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DAILY
CLASS NOTES
Indian Polity

Lecture - 13
Fundamental Rights (Part-III)
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Fundamental Rights (Part-III)

Amendability of Fundamental Rights:
❖ Article 13 (2) says that the State shall not make any “law” which takes away or abridges one or more
Fundamental Rights, such a law shall be unconstitutional and void to the extent of such infringement.

First Constitutional Amendment Act:

❖ The First Constitutional Amendment Act, of 1951 has amended a few fundamental rights. Its Constitutionality
was challenged before the Supreme Court in the Shankari Prasad Case of 1951.

Shankari Prasad vs Union of India Case (1951):

❖ In this case the Supreme Court while upholding its Constitutional validity held that the Parliament enjoys
two types of legislative power:
1. Constituent Legislative Power under Article 368.
2. Ordinary Legislative Power
❖ Any enactment made by the Parliament in the exercise of its power under Article 368 is called a
‘Constitutional Amendment Act’ which does not comes under the meaning of the ‘law’ found under Article
13 (2).
❖ Whereas, any act passed in the exercise of its ordinary legislative power is called ‘law’ and comes within
the meaning of Article 13 (2). Therefore, the Parliament can amend any part of the Constitution including
the fundamental rights by virtue of its power under Article 368.
❖ The court consistently held this view in a number of cases leading to the Sajjan Singh vs State of Rajasthan
Case in 1965.

Golaknath vs State of Punjab Case (1967):

❖ In this case the Supreme Court overruled its earlier decisions and held that Article 368 did not confer the power
on the Parliament to amend the Constitution and it merely contained the procedure to amend the Constitution.
❖ Therefore, the Parliament enjoyed only one type of legislative power called ordinary legislative power. Thus,
the Court held that the Constitution was unamendable.
❖ Further, the court also declared that the fundamental rights had given a transcendental position or overriding
position under the Constitution and no authority functioning under the Constitution including the
Parliament can amend the fundamental rights.

24th Constitutional Amendment Act of 1972:

❖ The Parliament responded by enacting the 24th Constitutional Amendment Act 1971 which amended the title
of Article 368, which now reads as the power of the Parliament to amend the Constitution and the procedure
therefore.
❖ It also introduced Article 368 (3) which states that nothing under Article 13 shall apply to any amendment
made under Article 368.
❖ It also introduced Article 13 (4) which states that nothing in this Article shall apply to any amendment made
to the Constitution under Article 368.
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Keshavananda Bharati Case (1973):

❖ In the Keshavananda Bharati vs State of Kerala Case (1973), the Supreme Court held that the 24th
Amendment Act was Constitutionally valid. The Court also classified that; the Parliament can amend any
part of the Constitution including the fundamental rights by virtue of its constituent legislative power
given under Article 368.
❖ However, such an amending power of the Parliament is not unlimited and it is limited to the extent of not
violating the basic structure of the Constitution. For this purpose, the Supreme Court innovated the
doctrine of basic structure but the court has not defined what is the basic structure of the Constitution.
❖ In a number of cases the Court has only indicated what aspects of the Constitution form part of the basic
structure of the Constitution. This includes:
⮚ The sovereignty of India
⮚ Mandate to build a welfare state (Socialism)
⮚ Secularism
⮚ Democratic and Republican form of government
⮚ Parliamentary form of government
⮚ Judicial Review
⮚ Separation of Power
⮚ Free and fair election
⮚ Rule of law
⮚ Balance among the three organs of State
⮚ Balance between Part III and Part IV of the Constitution.

42nd Constitutional Amendment (1976):

❖ The Parliament enacted the 42nd Amendment Act, 1976, which among other things introduced Article 368
(4), which states no amendment of the Constitution made under Article 368 shall be called in question in any
court on any ground.
❖ It also introduced Article 368 (3) which states for the removal of any doubt it is hereby declared that there is
no limitation whatsoever on the constituent power of the Parliament to amend any provision of the Constitution
under Article 368. These two clauses were challenged before the Supreme Court in the Minerva Mill Case.

Minerva Mill Case 1980:

❖ In the Minerva Mills vs Union of India Case 1980, the Supreme Court struck down these two clauses as
unconstitutional and void as it took away the power of Judicial review of the Court which is a part of the basic
structure of the Constitution.
❖ The present position, therefore, is that the Parliament can amend any part of the Constitution including the
fundamental rights but in the process the Parliament cannot destroy the basic structure of the Constitution.

Benefits of Basic Structure:

❖ It has helped in maintaining the supremacy of the Constitution.
❖ It has helped in maintaining the balance among the three organs of the State.
❖ It helped in maintaining the balance between Part III and PART IV of the Constitution.
❖ It provides dynamism to the Constitution.
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❖ It has helped in providing the foundation for the further evolution of the Constitution.

Article 14: Right to Equality:

❖ It says that the State shall not deny any individual the right to equality before the law and the right to equal
protection of laws.

Equality before Law:

❖ The concept of Equality before the law was originated in England and is regarded as a negative concept
because it means the absence of privileges for any individuals in the eyes of the law.
❖ In other words, the law treats all persons equally without any distinction based on rank and position in society.
❖ Therefore, if two persons commit the same act without legal justification the law will treat them equally
regardless of their position in society.
❖ This principle means all individuals are subject to the ordinary jurisdiction of force and the person can sue or
be sued before a court of law. However, it guarantees juridic equality and not other types of equality but there
are a few exceptions to equality before the law:
1. The President of India or Governor of State is not subject to the jurisdiction of the court or discharging
its executive function. This principle is based on the presumption in England that the King can do no
wrong.
2. No Criminal proceeds whatsoever can be instituted or continued against the President or the Governor
of State during his term of office even if the President does the criminal act, he won’t be answerable to
any court of law unless he is impeached.
3. No Civil proceeds in which relief i.e., compensation can be filed against the President or Governor of the
State in the Court of Law except after the expiry of two months’ notice i.e., serve on the President or
Governor.
4. Under international law foreign diplomats are not subject to the jurisdiction of local courts while
discharging their official function. The best the local government can do is to declare the person i.e.,
diplomats as Persona Nongrata i.e., the person is not wanted in the country.

Rule of Law:
❖ It originated in England. It is found under Article 14 i.e., the principle of equality of law.
❖ It means the absolute supremacy of regular law has opposed the influence of arbitrary powers. It means the
predominance of legal spirit in the administration of the country and the government shall be subjected to the
law and not the other way i.e., the law is not subjected to the government.
❖ It means Lex Supremes, i.e., the law is supreme, or in other words, the law is the highest authority in the
country. It means be you ever so high the law is always above you. It is the adoption of the law that changed
the concept of administration from Rex – Lex, i.e., King is law to Lex – Rex, i.e., Law is King.
❖ The rule of law is essential for maintaining order in society and without this administration cannot function
smoothly. The rule of law is essential for the healthy functioning of democracy.
❖ The Supreme Court and High Courts under Article 32 and 226 respectively have been empowered to
implement the rule of law or empower to maintain the rule of law even though it is considered to be a part of
the right to equality under Article 14.
❖ According to Supreme Court the rule of law prevails in the entire constitution. It is one of the basic values on
which the Constitution is built. Therefore, the Supreme Court has held the Rule of Law as a part of the
basic structure of the Constitution, which is applicable under all circumstances except the three exceptions
given to the President and Governor of State.
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❖ So, it was AV Dicey, an English legal commentator through his book ‘Law and the Constitution’, who
popularized the principle of the Rule of Law.
⮚ According to him, the rule of Law means three things:
1. No man shall be punished or made to suffer in body or goods except for the violation of the law.
Such a violation of the law shall be established in an ordinary court of the land in an ordinary legal
manner.
2. All persons are subject to the ordinary law of the land without any distinction of land or position
and are subject to the jurisdiction of land or position and are subject to the jurisdiction of the
ordinary court.
3. The Constitution is the result of the ordinary law of the land these restrictions imply in England
but the third principle does not imply in the case of India only the first two principles imply in
the case of India.
✓ The third principle stands modified in its implication where it reaches that the Constitution is
the supreme law of the land and all law passed by the legislature must be in consistent with the
provisions of the Constitution.

Equal Protection of the Laws:

❖ The concept of equal protection of the laws originated in the USA and is regarded as a positive concept.
❖ It means equality of treatment in equal circumstances among equal law should equal and equally
administered. Alike should be treated alike. All people who are placed similarly should be treated similarly.
❖ Therefore, it ensures equality among equals, it does not ensure equality among unequal, nor inequality among
equals.
❖ The State to imply law differently after taking into consideration the situational variation in which people are
placed.
❖ Therefore, the State is justified in classifying people into different categories on an original basis. It is for the
judiciary to classify whether such classification is reasonable or not. It is the least concept which is justified
for the positive or protected discrimination on the part of the State and the application of reservation policy for
the backward class of citizens.

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