Retrospective Application Of Fundamental Rights: An Overview

TABLE OF CONTENTS

• Key Takeaways
• Introduction
• Article 13 of the Indian Constitution
• Doctrines under Article 13

1. Doctrine of Severability
2. Doctrine of Eclipse

• Landmark cases

Key Takeaways

• Fundamental rights are the key parts of the Indian Constitution.
• Article 13 is about the validity of laws against fundamental rights.
• Laws inconsistent with fundamental rights guaranteed under Part III of the Constitution shall be void.
• Article 13(1) is prospective and not retrospective.
• Case laws have been enumerated relating to amendments and laws contradicting fundamental rights.

Introduction

Fundamental rights are the basic foundation of the Constitution. Article 13 of the Constitutionupholds that fundamental rights are the chief law that shall prevail over any other law. Thus laws that are inconsistent with fundamental rights shall be void. The Constitution provisions do not have any retrospective effect and any existing laws that are contradictory to fundamental rights shall also be deemed void after the commencement of the Constitution.

Article 13 of the Indian Constitution

Article 13 of the Indian Constitution reads as follows:

“Laws inconsistent with or in derogation of the fundamental rights

(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

(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

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye-law, rule, regulation, notification, custom, or usages having in the territory of India the force of law; laws in force include laws passed or made by 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality”

Article 13 of the Constitution states that any law that is inconsistent with fundamental rights shall cease to be valid. The supremacy of fundamental rights was expressed in this provision. It can be interpreted from this section that the pre-Constitutional laws become invalid if they are not in line with the “law in force.” However, uncodified personal laws are exempted from this.

Article 13 purports to remove only the contradictory provisions and not the whole Act or statute as such. Retrospective effect of law or retrospective operation of law means the application of the law against actions or inactions that existed before the enactment of the law. The retrospective effect applies only to substantial laws and not to procedural laws. The right and obligations of parties assume effect from an early date. Such retrospective laws impose new aspects on a past event and thus operate backward. So, any existing laws that are inconsistent with the Constitution shall become void after the commencement of the Constitution.

Article 13 (1) has a prospective effect. Say, A has committed an offence in 1940 which was not punishable then, but upon commencement of the Constitution, the same act was an offence. This was inconsistent with fundamental rights. A can be punished for the offence he committed, though it was not punishable before the commencement of the Constitution. Pre-Constitutional laws do not apply and A shall be prosecuted as per the Constitution.

Part III of the Constitution also called as “Magna Carta” of the Indian Constitution has six fundamental rights enshrined under Articles 14 to 30 and Article 32:

1. Right to Equality (Articles 14 to 18)
2. Right to Freedom (Articles 19 to 22)
3. Right against Exploitation (Articles 23 and 24)
4. Right to Freedom of Religion (Articles 25 to 28)
5. Cultural and Educational Rights (Articles 29 and 30)
6. Right to Constitutional Remedies (Article 32)

Doctrines under Article 13

i) Doctrine of Severability

Article 13 severs the part of the act that is found to be inconsistent with the fundamental rights and renders them inoperative. It does not make the whole act void for a violation of fundamental rights by merely just one provision.

If a section or a provision in an act is found to be inconsistent or ultra-vires to the Constitution on the ground that it had violated fundamental rights, the act will stand valid but the violating provisions will cease to operate.

ii) Doctrine of eclipse

In this case, when any existing law is found to be inconsistent with the fundamental rights, it does not cease or become dead but is just inoperative during the commencement of the Constitution. They are overshadowed by their fundamental rights and stay dormant just like how the eclipse works by masking other celestial bodies.

Article 13(2) deals with future laws or laws formulated after the commencement of the Constitution. There is a strict prohibition on making lawsthat are against the fundamental rights mentioned in Part III of the Constitution, which would otherwise be void. In this case, relatively void or partially invalid was taken. Court decides prospectively.

LANDMARK CASES

In the Bank Nationalisation Case (Rustom Cavasjee Cooper/R. C. Cooper Vs Union of India AIR 1970 SC 564; 1970 SCR (3) 530),a conflicting fact was that if any object or its form determines the protection the aggrieved may claim against the state was not in congruence with Constitutional scheme offering fullprotection of basic rights. The state action must be adjudged in the light of operation upon individual rights and of the group. As per the Constitution, the failure to guarantee right under Part III of the Constitutionwill be determined by nature of rights, aggrieved party interest, and degree of harm inflicted by the state. The precedents have merely laid out that the case shall be judged concerning protected rights. If any state made a prohibition on an act that is not a fundamental right, then the effect caused thereupon against the fundamental right is indirect.

In the case of Basheshar Nath Vs CTIAIR 2018 SC 357, the ambiguity regarding waiving fundamental rights was decided. The facts of the case were such that the petitioner suppressed large amounts of his income. To evade his liability, the petitioner settled the issue under Section 8 A of the Income Tax Act, to pay just INR 3 lakhs as arrears of tax in monthly installments. When it was found that the Income Tax Act was inconsistent with Article 14 of the Constitution, and thus was not supposed to pay tax. The court held that rights under Article 14 cannot be waived and hence the rule that fundamental rules cannot be waived was upheld.

Keshavan Madhavan Menon Vs State of Bombay 1951 AIR 128, 1951 SCR 228, case decision stated that fundamental rights under Part III of the Constitutionhave no retrospective effect and the invalidity of laws with respect to Article 13 (1) has the prospective operation of pre-Constitution laws that are inconsistent with the fundamental rights. It was held that the future operation of fundamental rights under Part III of theConstitutionunder Article 20 may also result from the pre-Constitution period.

In the case of Shankari Prasad Singh Deo Vs UOI1951 AIR 458, 1952 SCR 89, the first Constitutional amendment in 1951 was challenged for violating the fundamental rights under Article 13 (2). The amendment made changes to the fundamental rights and the Supreme Court held that the interpretation of the term “law” does not include a law made by Parliament by amending Constitution under Article 368. “Law” only includes “the rules and regulations enacted by legislatures” and not the “Constitutional amendments made in exercise of constituent powers.” This judgment was subsequently upheld in the case of Sajjan Singh Vs State of Rajasthan 1965 AIR 845, 1965 SCR (1) 933but was struck down in Golak Nath Vs State of Punjab1967 AIR 1643, 1967 SCR (2) 762. In the Golkanath case, the Supreme Court held in a 6:5 majority judgment that the word “law” under Article 13 (2) includes an amendment of the Constitution and if any such amendment violates the fundamental rights under Part III then the amending act becomes ultra-vires and void.

Finally, in Kesavanandha Bharati Vs State of Kerala(1973) 4 SCC 225; AIR 1973 SC 1461, the apex court reversed the judgment in the Golak Nath case and unanimously held that the insertion of clause (4) under Article 13 and clause (3) under Article 368 by the Constitution (24th amendment) Act, 1971 was valid. It was upheld that amendments to Article 368 and provisions enshrined with fundamental rights under Part III of the Constitution can be amended. The Supreme Court held that Parliament can amend the Constitution including fundamental rights but only subject to the Doctrine of Basic Structure. Amendments can be made without changing the basic features.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE