Friday, 3 June 2022

Fundamental Rights Justiciability

 Fundamental Rights Justiciability

By: Anjali Tiwari

Fundamental rights justiciability refers to the ability to enforce the rights set forth in Part III of

the Indian Constitution. In the event that one of one's fundamental rights is violated, one might

file a complaint with the High Court or Supreme Court.

Fundamental rights are crucial because they protect people's interests, and as a result, they are

regarded as the country's backbone. Article 13 discusses the justiciability of fundamental rights;

any law that violates a fundamental right can be declared unconstitutional. "Article 13 provides

for judicial scrutiny" of all Indian laws, both current and future. It does not only discuss laws, but

also ordinances, orders, rules, notifications, and so on.

The Indian constitution is the most powerful in the world. It means 'Supreme of the Constitution,'

which means that all legislation must be in conformity with the constitution's requirements.

Parliament must act in exact accordance with the constitution's stated mandates while passing

legislation. In other words, Article 13 of the constitution establishes the constitution's supremacy.

Fundamental rights are the fundamental human rights guaranteed by the Indian Constitution,

which no one can change. The supremacy of the Indian Constitution is upheld by Article 13 of

the Indian Constitution, which also serves as a model for judicial review.

Meaning and Applicability

Article 13 states that no state legislature or parliament can pass legislation that violates basic

rights. Laws that infringe on fundamental rights are null and void. Discuss pre-constitutional and

post-constitutional laws as well.

Article 13(1) refers to pre-constitutional laws, stating that all laws in existence in India

immediately prior to the start of the constitution are void to the extent that they are incompatible

with Fundamental Rights under Part III of the Indian Constitution.

Article 13(2) discusses post-constitutional legislation.

Article 13(2) of the Indian constitution forbids the state from enacting any law that abridges the

rights provided by Part III. If a state passes such a law, it is null and void.

Article 13: Introduction


"Laws inconsistent of Fundamental Rights are void," says Article 13 of the Indian constitution.

13(1) – Insofar as they are inconsistent with the provisions of this article, all laws in force in the

territory of India immediately before the commencement of this constitution will be void to the

extent of such contradiction.

13(20) – The state shall not pass any law that deprives or restricts the rights granted by this Part,

and any law passed in violation of this clause shall be void to the degree of the violation.

13(3) – Unless the context dictates differently, in this article-

1. "Laws" refers to any ordinance, order, bye-laws, rule, regulation, notification, custom, or

usage that has legal force in India.

2. Laws passed or made by the legislature in the territory of India prior to the commencement of

this constitution that have not been replaced are included in "laws in force,".

13(4) – This article does not apply to any change to the constitution adopted pursuant to Article

368.

Because the term "law" is so broad, it also covers subordinate legislation, rules, regulations, and

orders issued by the government. A simple executive or administrative order, on the other hand,

would not be covered by the legislation. Similarly, legislative notices are enforceable, whereas

executive notifications are not. As a result, any ordinance, order, by-law, rule, regulation,

notification, custom, or usage, not only enacted law or legislation, but also any ordinance, order,

by-law, rule, regulation, notification, custom, or usage, may be used.

Bhau Ram VS. Baij Nath (AIR 1962 SC 1476)

The Supreme Court held that personal laws such as Hindu, Muslim, and Christian law are

excluded from the definition of 'law' for the purposes of Article 13 because the term 'personal

law' is not used in Article 13 despite being included in item 5 of the concurrent List-List III of

Schedule VII of the constitution. It has been decided that personal laws are not covered by

Article 13(1).

Edward Mills VS. Ajmer (AIR 1955 SC 25)

The Supreme Court declared that the terms "law in force" and "exciting law" had the same

meaning.


Reference:

1) Bhau Ram VS. Baij Nath, AIR 1962 SC 1476

2) Edward Mills VS. Ajmer (AIR 1955 SC 25)

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