Article 14 of Indian constitution || Right to Equality || Article 14 in English ||Article 14 case law||

 RIGHT TO EQUALITY (ART. 14-18)

The Constitution says that the government shall not deny to any person in India equality before the law or the equal protection of the laws. It means that the laws apply in the same manner to all, regardless of a person’s status. This is called the rule of law. Rule of law is the foundation of any
democracy. It means that no person is above the law. There cannot be any distinction between a political leader, government official and an ordinary citizen.

These are deemed as an essential part of the constitution as they protect the rights and liberties of the citizens of the country against any misuse or intrusion by the government with the power delegated to them in a democracy. These are the negative obligations of the state and citizens. These rights try to achieve the goals set out in the Preamble, of justice, liberty, equality, fraternity, and dignity.

Article 14 (Equality Before Law)

Article 14 of the Constitution of India 1950 was not a standalone provision in the Draft Constitution 1948. It was initially included in Draft Article 15 (Article 21) which read:

‘Protection of life and liberty and equality before law – No person shall be deprived of his life or liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the law within the territory of India.’

Article 14 of the Constitution of India reads as under:-
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

“As long as poverty, injustice and gross inequality persist in the world, none of us can truly rest” – Nelson Mandela

“The law should be equal and should be equally administered, that like should be treated alike.” - Dr. Jennings

Meaning of Equality

The word “Equality” means that every person, who lives within territory of India, has the equal right before the law. There is no discrimination based on religion, race, caste, sex and place of birth. It means that all will be treated as equality among equal and there will be no discrimination based on religion, race, caste, sex and place of birth.

Prof. Dicey, explaining the concept of legal equality as it operated in England and said: “with us every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without any legal justification as any other citizen.”

This Article is clearly note down in two parts – while it commands the State not to deny to any person ‘equality before law’, it also commands the State not to deny the ‘equal protection of the laws’. Equality before law prohibits discrimination. It is a negative concept. The concept of ‘equal protection of the laws’ requires the State to give special treatment to persons in different situations in order to establish
equality amongst all. It is positive in character. The first expression ' Equality before law ' is of English origin and the second expression has been taken from the American Constitution.

Equality before law: -

Equality before law is taken from English Common law, states that the people living in India can claim the basic rights of this country equally regardless of being poor or rich, low-ranked or high-ranked officials, creed or caste differences or other gender discriminations.

Equality Before the Law is a negative concept as it implies the absence of any special privilege in favour of individuals. Implies no discrimination before the law on inapposite grounds whether rich or poor, high or low, official or non-official.

Equal protection of the laws: -

“Equal protection of law” has been given in article 14 of our Indian constitution which has been taken from section 1 of the 14th amendment act of the constitution of the united state. It only means that all persons similarly circumstance shall be treated alike, both the privileges conferred and liabilities imposed by the laws.

The words ' any person ' in Article 14 of the constitution denotes that the guarantee of the equal protection of laws is available to any person which includes any company or association or body of individuals, The protection Article 14 extents to both citizen and non - citizen and to natural persons as well as legal persons.

Equal protection of law is a positive obligation under which the state brings about necessary social and economic changes, to ensure every person enjoys equal protection. This implies that such protection should be without any favour and discrimination. This implies equal treatment in similar circumstances, both in the privileges and liabilities imposed by the law. 

Rule of law-

The Judiciary, the Legislature, and the Executive are not only bound by the provisions of the Constitution but also must behave in accordance with them, making all three government institutions subject to it.

The State constitution recognizes the concept of judicial review, and citizens may ask the High Court and the Supreme Court to safeguard their constitutional rights. Ordinary courts of law have the authority to invalidate the Executive or the government if they abuse their authority or engage in dishonest behaviour.

The Supreme Court of India stated in Chief Settlement Commissioner Punjab v. Om Prakash that the notion of the rule of law is the crucial and most distinctive aspect of our constitutional system, which in this case refers to the capacity of the legal system to judge all administrative action according to the legality standard.

The Court continued by asserting that the rule of law concept rejects the notion of a dual state, in which government behaviour is kept in a privileged position of immunity from parliamentary scrutiny.

Exceptions To Rule Of Law: -

1. Delegated Legislation: The grant of discretionary powers to government officials to enable them perform their duties effectively can be used against the citizens. Officials can make statutory regulations that when administered will abuse the rights and liberties of individuals.

2. Diplomatic Immunity: Ambassadors and diplomats cannot be sued and prosecuted in countries where they are serving as they are treated as above the law of the host country, rather they can be repatriated. This undermines the principle of equality of everybody before the law.

3. Existence of Administrative Tribunals or Special Courts: These courts and tribunals use special procedures that are not observed in civil courts. This makes justice obtained in such courts not to be in consonance with the rule of law. More so, most of the judgments of such tribunals forbids individual rights of appeal.

4. Special Privileges: There are some certain individuals that are immune against the law of the country. Such people include the President and the Vice President, Governors, members of the Parliament (National Assembly) and some other high ranking government officials. Judges are immune from law while adjudicating in the court. This is to make them to carry out their duty without fear or favour.

5. State of Emergency and War: During certain conditions that are critical which may make the government to declare a state of emergency or when there is war, government usually invoke certain discretionary powers. These powers when exercised by the government usually denies individuals part of their fundamental human rights as people may be confined to their homes or restricted from carrying out certain activities or individuals may be forced to go and fight war to defend their country even if it is against their wish.

6. Poverty, Illiteracy and Ignorance: Most people especially in developing countries are illiterates. They do not know how to read and write; hence, they cannot read and comprehend their rights as entrenched in the constitution. Sometimes, when they can read, they are ignorant of what constitutes their rights. While the level of poverty in the country do not allow them to pursue or sue anyone that infringed their rights.

The principle of ‘Rule of Law’ was propounded by the British jurist A.V. Dicey. His concept has the following three elements or aspects:

• No Arbitrary Power: There should be an absence of arbitrary power, that is, no man can be punished except for a breach of law. This is applicable in the Indian system.

• Equality Before Law: Equality before the law is the subjection of all citizens, regardless of class (i.e., rich or poor, high or low, official or not), to the common law of the state as applied by ordinary law courts.

• Source of Individual Rights: According to Dicey, courts should be the enforcing authority. It held that the court of law is the source of individual rights. This provision is not applicable in the Indian system as India has a written constitution, which is the source of individual rights.

In the case of Ramesh Prasad v. State of Bihar, AIR 1978, it is to be noted that aim of both the concept, ‘Equality before law’ and ‘Equal protection of the law’ is the equal Justice.

In the case of Indian Young Lawyer’s Association v. State of Kerala (2018) the Supreme Court by the majority of 4:1 ratio declared the custom of Sabrimala temple prohibiting females in their ‘menstruating years’ from entering the temple area.

In the case of Vishaka v. State of Rajasthan (1997) the landmark judgment where the court held that Sexual Harassment of women at the workplace violates their fundamental  rights guaranteed under Articles 14, 19 and 21. It led to the enactment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013.

In Maneka Gandhi v UOI, (1978), This is one of the most important judgements when it comes to cases related to Constitution. In this case a seven-judge bench discussed the question on violation of Articles 14, 19 and 21 all these articles have to be read together. Any law interfering with personal liberty of a person must satisfy the following three points: (i) it must prescribe a procedure; (ii) the prescribed procedure shall withstand the test of one or more rights guaranteed under Article 19 in a given situation and (iii) it must also be liable to be tested with reference to Article 14. As the law in question interfering with personal liberty of an individual must also be just and fair and it shall not be discriminatory or arbitrary.

In case of Air India v Nargesh Meerza, 1978, this case was brought forward when Air India rules were regulated and it was made mandatory that a female attendant need to retire under these circumstances: - (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first pregnancy. The same rules were not applicable to male attendants. When petition was brought before the Supreme Court regarding these rules the Supreme Court observed that the same rules were not applicable to male attendants. The Court held the rules down, holding that these requirements constituted official arbitrariness and hostile discrimination and it is a clear violation of Articles 14 and 21 of the Indian Constitution.

National Legal Service Authority [NALSA] v UOI, AIR 2014, this case was filed by the National Legal Services Authority of India (NALSA) which is an Indian statutory body to legally recognize persons who fall outside the male/female gender binary, including persons who identify as “third gender”.

While drawing attention to the fact that transgender person were subject to “extreme discrimination in all spheres of society”, the Court held that the right to equality (Article 14 of the Constitution) was framed in gender-neutral terms (“all persons”). Consequently, the right to equality would extend to transgender persons also.

In, Shayara Bano v. Union of India And Ors., 2017, (also called Triple Talaq judgement) the Hon’ble Supreme Court had an opportunity to observe the inclusion of personal laws in Article 13. But the Court believed that since Shariat law is a statutory law codified by the central legislative assembly, the rights with Muslim men to pronounce triple talaq and get divorced is arbitrary and unreasonable.

Conclusion: -

Right to equality is a one of the most important part of the Indian constitution, which gives strengthen to all those people who belongs to Indian nationality. It is necessity of the upcoming generation to secure their right & change our developing India in to developed India. Article 14 to18 is the fundamental right which is says about the equality of status, community and gender. This article is a give wings to all citizens to make anything in any place, that's why Article. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. This article save, The Human Rights Act makes it illegal to discriminate on a wide range of grounds including 'sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status'.

Reference :-

• Constitutional law of India - J.N. Pandey
• Constitution of India - M. Lakshmikant
• Https://indiankanoon.org
• www.constitutionofindia.net
• Https://blog.pleaders.in
• https://en.m.wikipedia.org

ARTICLE 21 IN HINDI || भारतीय संविधान का अनुच्छेद 21 हिंदी में || Article 21 of Indian Constitution ||

 

भारतीय संविधान का अनुच्छेद 21 जीवन और व्यक्तिगत स्वतंत्रता की सुरक्षा के मौलिक अधिकार की गारंटी देता है। भारतीय संविधान के अनुच्छेद 21 के अनुसार, "कानून द्वारा स्थापित प्रक्रिया के अलावा किसी भी व्यक्ति को उसके जीवन या व्यक्तिगत स्वतंत्रता से वंचित नहीं किया जाएगा।"

भारतीय संविधान का अनुच्छेद 21 सभी महत्वपूर्ण अनुच्छेदों में से एक महत्वपूर्ण अनुच्छेद माना जाता है। भारतीय न्यायपालिका ने कई महत्वपूर्ण मामलों में अनुच्छेद 21 को परिभाषित करते हुए बहुत ही विस्तृत व्याख्या की है। भारतीय संविधान के अनुच्छेद 21 में परिभाषित शब्द "जीवन का अधिकार (Right to Privacy)" अत्यंत व्यापक शब्द है। जिसमें मात्र केवल जीवित रहने का अधिकार ही नहीं शामिल है, अपितु इसके साथ कई अधिकार भी शामिल होते हैं जैसे व्यक्ति की व्यक्तिगत स्वतंत्रता, गरिमा की रक्षा, उपचार का अधिकार इत्यादि अधिकार भी इस प्रावधान में शामिल होते हैं। जिनकी व्याख्या भारतीय न्यायपालिका द्वारा विभिन्न मामलों में विभिन्न प्रकार से की गई है। यह अनुच्छेद ना केवल व्यक्ति के भौतिक अस्तित्व की रक्षा करता है अब तो मानसिक रूप से भी व्यक्ति की रक्षा करता है।

भारतीय न्यायपालिका ने संविधान के अनुच्छेद 21 "जीवन का अधिकार(Right to Privacy)" की व्याख्या अलग-अलग मामलों में अलग-अलग प्रकार से की है। कुछ प्रमुख मामले जिनमें न्यायपालिका ने अनुच्छेद 21 की व्याख्या में महत्वपूर्ण बिंदुओं को रखा वह निम्नलिखित हैं:-

संविधान के अनुच्छेद 21 की व्याख्या पर अगर हम प्रमुख मामलों की चर्चा करते हैं तो सबसे पहले मेनका गांधी बनाम भारत संघ (1978) का मामला सामने आता है जोकि भारतीय न्यायपालिका का अति महत्वपूर्ण एवं ऐतिहासिक मामला है इस मामले में उच्चतम न्यायालय ने कहा कि "व्यक्तिगत स्वतंत्रता में विदेश यात्रा भी शामिल है" और आगे उच्चतम न्यायालय ने यह भी उल्लेख किया कि किसी व्यक्ति को उसके जीवन एवं व्यक्तिगत स्वतंत्रता से वंचित करने के लिए कानून द्वारा स्थापित प्रक्रिया न्यायसंगत होनी चाहिए। इस मामले ने संविधान के अनुच्छेद 21 में वर्णित "जीवन के अधिकार" को विस्तृत करने का प्रयास किया।

सुनील बत्रा बनाम भारत संघ 1978, इस मामले के निर्णय द्वारा सर्वोच्च न्यायालय ने भारतीय कैदियों की रक्षा करने का सफल प्रयास किया। सुप्रीम कोर्ट ने यह अभिनिर्धारित किया कि भले ही वह व्यक्ति जेल में है परंतु उसे भी अपनी व्यक्तिगत स्वतंत्रता एवं मौलिक अधिकारों के संरक्षण का अधिकार है।

संविधान के अनुच्छेद 21 की व्याख्या से संबंधित एक अन्य महत्वपूर्ण मामला ओलगा टेलिस बनाम मुंबई नगर निगम 1985, इस मामले में सर्वोच्च न्यायालय ने यह अभिनिर्धारित किया कि आजीविका का अधिकार जीवन की स्वतंत्रता के अधिकार से अलग नहीं है और आगे यह भी कहा कि कोई भी राज्य बिना किसी निष्पक्ष जांच व प्रक्रिया के किसी व्यक्ति को उसकी व्यक्तिगत स्वतंत्रता से वंचित नहीं कर सकता। यह मामला स्ट्रीट वेंडर्स एवं फुटपाथ पर रहने व कमाने वालों से संबंधित था एवं सर्वोच्च न्यायालय ने अपने इस मामले के आदेश द्वारा उनके अधिकारों की रक्षा करने का एक सफल प्रयास किया।

एक अन्य प्रमुख मामला परमानंद कटारा बनाम भारत संघ 1989, इसमें सर्वोच्च न्यायालय ने चिकित्सा उपचार के अधिकार को भी संविधान के अनुच्छेद 21 के अंतर्गत परिभाषित किया है और यह भी निर्णय दिया कि प्रत्येक घायल व्यक्ति को कानूनी औपचारिकताओं की प्रतीक्षा किए बिना चिकित्सा का अधिकार है।

अभी कुछ वर्षों पहले भारतीय न्यायपालिका ने पर्यावरण संरक्षण को शामिल करने के लिए संविधान के अनुच्छेद 21 की व्याख्या को और भी विस्तृत कर दिया है। सुभाष कुमार बनाम बिहार राज्य 1991, के मामले में उच्चतम न्यायालय ने यह आदेश पारित किया कि स्वच्छ पर्यावरण का अधिकार भी संविधान के अनुच्छेद 21 में निहित है।

विशाखा बनाम राजस्थान राज्य 1997, यह मामला कार्यस्थल पर यौन उत्पीड़न से संबंधित है। इस वाद में यह कहा गया कि एक महिला को ससम्मान के साथ कार्य करने का अधिकार है। अगर कोई व्यक्ति उसके सम्मान  का उल्लंघन करता है तो यह माना जाएगा कि उसने उस महिला के जीवन की व्यक्तिगत स्वतंत्रता का उल्लंघन किया गया है एवं वह दोषी ठहराया जाएगा। यह मामला कार्यस्थल पर महिला के साथ यौन उत्पीड़न से संबंधित है।

एक अन्य महत्वपूर्ण मामला पीपुल यूनियन फॉर सिविल लिबर्टीज (पीयूसीएल) बनाम भारत संघ 2000, इस मामले में सुप्रीम कोर्ट द्वारा यह अभिनिर्धारित किया गया कि हिरासत में हुई मौतों की पुलिस या कानून प्रवर्तन एजेंसियों द्वारा पूरी तरह निष्पक्ष रुप से जांच की जानी चाहिए और न्यायालय ने विशेष रूप से पुलिस सुधारों एवं मानवाधिकारों के संरक्षण की आवश्यकता पर भी बल दिया।

सर्वोच्च न्यायालय ने पुत्तास्वामी बनाम भारत सरकार 2017 में यह निर्णय दिया की निजता का अधिकार भी व्यक्तिगत स्वतंत्रता का ही एक अभिन्न अंग है। इस मामले में पहली बार निजता के अधिकार को एक मौलिक अधिकार के रूप में इतनी महत्ता प्रदान की गई।

उपर्युक्त कुछ प्रमुख मामले संविधान के अनुच्छेद 21 की विस्तृत व्याख्या एवं प्रकृति को दर्शाते हैं। उपर्युक्त मामलों में न्यायपालिका द्वारा अनुच्छेद 21 की व्याख्या ने व्यक्तियों के व्यक्तिगत जीवन से संबंधित स्वतंत्रता को विस्तृत एवं उनके अधिकारों को संरक्षित करने का अथक प्रयास किया। अतः यह अनुच्छेद भारतीय संविधान के सभी महत्वपूर्ण अनुच्छेदों में से एक महत्वपूर्ण अनुच्छेद माना जाता है जो कि व्यक्ति की व्यक्तिगत स्वतंत्रता से संबंधित है।

अतः उपर्युक्त व्याख्या से हम इस निष्कर्ष पर पहुंचते हैं कि भारतीय संविधान के अनुच्छेद 21 ने व्यक्तियों के निजी जीवन एवं व्यक्तिगत स्वतंत्रता की सुरक्षा में एक महत्वपूर्ण भूमिका निभाई है।

और अधिक जानकारी के लिये नीचे दिये हुये लिंक पर क्लिक करें:-

Article 12 of the Indian Constitution

Motivational thoughts and poetry

FIRST FIVE YEAR PLAN (1951-56) || Education system in India || education system after independence

        The First Five Year Plan had its beginning in 1951. The aim of the plan was to utilize fully the basic sources for rapid economic development in the future. 

        In the sphere of education, its various objectives were the following:-

1. Reorganization of the educational system.
2. Expansion in the various spheres of education, particularly basic and social education. 
3. Modification of the form of professional and technical education.
4. Organizing the secondary education.
5. Expansion of women's education.
6. Making provisions for the training of teachers in basic schools. 
7. Providing aid through grants to backward states and areas.
8. Providing the necessary facilities for social education. 
9. Experiment and Research.
10. Creation of literature for children.

 

 

The achievements of the First Five Year Plan can be stated thus:

(1) Pre-school Education- In the First Year Plan period, responsibility was fulfilled. Pre-school Education means training of teachers, giving aid to private institutions, giving grants to local bodies for establishing  spheres and pre-school institutions etc.

(2) Primary and Basic Education- In the First Five Year Plan, primary and basic education mean the national scheme for education.

(3) Secondary Education- A Secondary Education Commission was appointed for the reorganization of secondary education, and on the basis of its report, text-books were produced and organizations established for the guidance of education.

(4) Social Education - In the sphere of social education, established and training given to social educators and workers.

(5) Others- Among the other activities were the establishment of training centers for the provision of higher education in rural areas, creation of social and child welfare centers, and the establishment of national society of drama, and a fundamental education institution.

Overview of five year plans

Development of education in India after Independence

Education after Independence

        The education is the most important element of whole of the world. The development of education is a consistency process. The progress of the country is also depends upon its educational approach. The Five Year Plans is one way to reduce the poverty, illiteracy, unemployment etc. by the way of literacy.  Education is a common need of the citizens or non-citizens. Thus, the main function of education is to grant him the greatest possible opportunities for the growth of all his powers.

       At the present time, a world which is founded by science and technology. The success and reputation of the country depends upon the qualities of the students, schools and mode of education system. A literacy rate of 18% in 1951, we have moved up to 73% as of 2011.

         In 1950, the Government of India appointed a Planning Commission to prepare five year plans for the development of country in various factors.

        In 1948, the Central Advisory Board of India establish two education commission name as first is University Education Commission, 1948 and second is Mudaliar Commission 1952-53.

        National Council of Educational Research and Training (NCERT) at National level and State Council of Educational Research and Training (SCERT) at State level were established to maintain the education standard. University Grants Commission (UGC) was instituted to determine the standard of higher education.

        Female education was not given importance at the time of Independence. after the passes of time female literacy was increased time to time.

Development of education after Independence in India in following sectors:-

• Development of Primary Education- Primary Education and Midday meal are both free and Midday meal is started from the year of 1995.
• Development of Higher Education 
• Development of Technical Education
• Medical Education
• Agricultural Education

ARTICLE 13 of the Constitution of India

 

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Article-13: Laws inconsistent with or in derogation of the Fundamental Rights:

CLAUSE (1):-

All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

In Keshavan Madhava Menon Vs The State Of Bombay On 22 January, 1951, a seven-judge Bench heard the appeal of a petitioner prosecuted under the Indian Press (Emergency Powers) Act. Part of the appeal posed if Article 13 (1) of the Indian Constitution could ‘declare all laws inconsistent with the fundamental rights to be void as if they had never been passed and existed’ or void ab initio.

In other hand, the Supreme Court observed that “There is no Fundamental Rights that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So for as Acts are concerned the law exists notwithstanding that it does not exist with respect to the future exercise of the Fundamental Rights.”

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Doctrine of separability

Shall be declared void to that extent of such inconsistency:-

If some parts of the statue/Act are inconsistent with that of the fundamental rights, then the whole statue would not be declared to be void but that particular clause would be treated to be void by the court of law. all the pre-existing constitutional laws are to be filtered out.

In A.K. Gopalan Vs The State Of Madras, Air 1950, Section 14 of Preventive detention Act,1950 was challenged according to this section if any person is being detained under this act then he may not disclose the grounds of his or her detention in court of law. Thus, if we do apply the doctrine of severability here so the whole act of (Preventive detention Act,1950) would not be declared as void but only section 14 of the act would be declared as void as it is inconsistent with the fundamental rights.

In The State Of Bombay And Another Vs F.N. Balsara On 25 May, 1951, the Court was held that the provision of the Bombay Prohibition Act, 1949 where the entire act was declared as void and it did not affected the rest of the part and there was no need to declare the whole statute as void.

In case of Kihoto Hollohan vs Zachillhu And Others on 18 February, 1992 this case is also known as the “defection case”. In this case the paragraph 7 of the Tenth Schedule which was first inserted by the 52^nd Amendment Act of 1985 was challenged and declared as unconstitutional because it had violated the provisions under Article 368 (2). But, the whole part was not declared unconstitutional. So, the rest of the Tenth Schedule excluding paragraph 7 was upheld by the Constitution.

Doctrine of ECLIPSE

The doctrine of Eclipse is on the principle that a laws which violating fundamental rights, is not nullity or void ab-initio but becomes only enforceable.

In Bhikaji Narain Dhakras and Ors v. State of Madhya Pradesh, air 1955, Berar Motor Vehicles Act 1947 challenged Authorized state government to monopolize motor business When enacted valid After 1950 became invalid Art. 19(1)(g) In 1951, art 19 amended and clause (6) and authorised monopoly of government.

CLAUSE (2):-

The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

The main objective of Article 13 is to secure the paramountcy of the Constitution specially will regard to Fundamental Rights. This clause talks about only post-constitutional law.

In Deep Chand vs The State Of Uttar Pradesh,15 January, 1959, the Court held that the doctrine of eclipse does not apply to post constitutional law, a subsequent constitutional amendment cannot revive it. Post constitutional law is nullity and void ab initio at the inception.

In Mahendra Jain vs The State Of Uttar Pradesh, 1963,  the Court held that the doctrine of eclipse applies only to pre-constitutional law, Article 13(1) and not to post-constitutional law Article 13(2). Thus, doctrine of eclipse does not apply to post constitutional laws.

In The State Of Gujarat And Another vs Shri Ambica Mills Ltd., 26 March, 1974, Certain labour welfare fund Act was challenged, as certain sections in it were against the fundamental rights. Since the fact that the laws made by the state after the constitution is framed would be declared void if those laws are against the fundamental rights, but here the question arose that fundamental rights are only granted to citizens but what will happen in the case of non-citizens or a company (company here is the respondent i.e Ambika mills). It was held by the apex court that since the fundamental rights are only granted to the citizens but not to the company or any non-citizen, therefore the labour welfare fund Act is valid.

With respect to Article 13 (2), the Court observed,

“Therefore, when Article 13(2) uses the expression ‘void’, it can only mean void as against persons whose fundamental rights are taken away or abridged by law. The law might be ‘still-born’ so far as the persons, entities, or denominations whose fundamental rights are taken away or abridged. Still, there is no reason why the law should be void or ‘still-born’ as against those who have no fundamental rights (meaning non-citizens).”

Doctrine of Waiver

The Doctrine of Waiver or the Waiver of Rights is a concept that is founded on the idea that a person is his own best judge and that he has the freedom to renounce the enjoyment of rights conferred on him by the state.

However, the individual must be aware of his or her rights, and the waiver must be voluntary. The obligation falls on the State to make sure that the Fundamental Rights of a person are not infringed and give maximum protection to these rights.

The term “waive” means “to give away” or “surrender”. In the Indian Constitution, there is no such Doctrine because these fundamental rights are a part of the Nation’s public policy, and the state is obligated to protect these rights at all costs.

In Behram Khurshed Pesikaka v. The State of Bombay, 1954, the court observed that the fundamental rights are based on such principles which are embodied in the preamble of the Indian Constitution. Fundamental rights are a matter of public policy and the same cannot be waived. The doctrine of waiver has no application on matters that are a part of constitutional policy.

In the case of Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors, the Court ruled that anybody has the right to waive a legal right or privilege that has been bestowed on him. In the event of a tenant-owner dispute, for example, if a notice is provided and no representation is made by the owner, tenant, or sub-tenant, it is a waiver of opportunity, and that party cannot be permitted to change their mind afterward.

CLAUSE (3):-

In this article, unless the context otherwise requires:

a)   Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom, or usage having in the territory of India the force of law;

But there are two exceptions to the same, firstly the administrative and the executive orders are being covered under article 13 but if their nature is just to give instructions or guidelines then they would not be covered under article 13. Second exception is the personal laws which are not being covered under article

·       Ordinances under 123 and 213

·       personal laws excluded

Law means law made by the legislature and includes intra virus statutory orders made in the exercise of powers conferred by statutory rules but not administrative orders.

b)   laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Laws passed or made by a Legislature or other competent authority in the territory of India Includes administrative orders by executive before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

In Indian Young Lawyers Association v. The State Of Kerala, is also known as “Sabarimala Case”, dealt with the same question. The Court, in this case, said that the individual is at the heart of the Indian Constitution, and as far as any law affected the individual, it could fall under Article 13(3).

In, Shayara Bano v. Union of India and Ors., 2017, (also called Triple Talaq judgement) the Hon’ble Supreme Court had an opportunity to observe the inclusion of personal laws in Article 13. But the Court believed that since Shariat law is a statutory law codified by the central legislative assembly, the rights with Muslim men to pronounce triple talaq and get divorced is arbitrary and unreasonable.

Comprehensively and with a combined reading of both Clauses (2) and (3) (a) of Article 13, Clause (2) states that the State shall not make any law that violates the fundamental right of the individual. Clause (3) (a) states law includes custom and usage. The issue is custom and usage in a territory cannot be made by the legislature thereof.

CLAUSE (4):-

Nothing in this article shall apply to any amendment of this Constitution made  under article 368. Inserted by the Constiution(24th amendment) Act, 1971.

The Validity of the Twenty-Fourth Amendment was further challenged in Kesavananda Bharti v. State of Kerala, AIR 1973 . In which a majority Bench of 7 to 6 overruled the Golak Nath case. Gave birth to a landmark doctrine- “Basic structure doctrine”.

The Hon’ble Court held that the power to amend was prior to the Twenty-Fourth Amendment (Article 368). It further observed:-

“The Amendment just made it explicit and declaratory. The term “Amendment” per se postulates that the original Constitution must survive with its basic features”.

Hence, the basic features were enumerated by J. Sikhri, which, however, was not exhaustive. These Basic Features, if touched upon, will declare the law or the Act to be void and accordingly unconstitutional.

Considered for the first time in Shankari Prasad v U.O.I., 1951 and the court held that the word Law under Art. 13(2) does not include Constitutional amendments/law made by Parliament under Art. 368. and this judgment was followed in the case of Sajjan Singh vs State Of Rajasthan, 1964.

In case of I. C. Golaknath & Ors vs State Of Punjab & Anrs., 1967 the Supreme Court overruled the decision of the both cases Shankari Prasad v U.O.I. and  Sajjan Singh vs State Of Rajasthan, 1964  and held that law includes every branch of law- statutory, constitutional etc.-any amendment which takes away Fundamental Rights will be declared void. 24th Amendment 1971 new clause added in Art. 13 as 13(4).

Judicial review

First time propounded by the Supreme Court of America in the case of Marbury vs Madison. Judicial Review can be understood as a form of court proceeding, usually in the Administrative Court where the lawfulness of a decision or action is reviewed by the judge. Where there is no effective means of challenge, judicial review is available.

Judicial review plays an important role as a protector when the executive, judiciary and legislature harm the Constitutional values and deny the rights. The judicial assessment is considered as an indispensable feature in the country. In India, there is parliamentary form of democracy where every section of people is involved in decision making and policy making process. It is true that the primary duty of the court to apply rule of law and is the groundwork of social equality. By exercising new powers of Parliament, rule of law which is to be applied by the court cannot be modified.

If any person’s Fundamental right is violated he can approach the court under Article 32 or Article 226 of the constitution. Article 251 and 254 states that if there is any inconsistency between the union and state law, the law of union shall prevail and the state law shall be deemed void. Power of Judicial Review is vested in many articles such as 13, 32,131-136, 143, 226, 145, 246, 251, 254 and 372. 

In Mitthu v. State of Punjab The Supreme Court of India has struck down Section 303 of Indian Penal Code, 1860. This section had made death sentence mandatory. In case Article twenty-one of the Indian Constitution was illustrated by the S.C.I. complete its frequent pronouncement.

Fundamental Rights available against State and not against private individuals:-

Private rights being available only against the state and not against private individuals raises an issue, considering Article 15(2) which is discrimination, here if many people suffer from discrimination done by other individuals and taking up Article 17 which talks about untouchability is also done by private individuals. Article 23 which is for trafficking and Article 24 which prohibits the employment of children in hazardous industries should also be made available against a private individual.

If this is not made available against the private individual then the main purpose of the law to provide justice will get defeated.