Exceptions to Fundamental Rights
Polity
1. Saving of Laws Providing for Acquisition of Estates (Article 31A)
- Article 31A protects certain categories of laws from being challenged for violating Article 14 and Article 19.
- Categories covered:
• Acquisition of estates and related rights by the State
• State takeover of management of properties
• Amalgamation of corporations
• Modification/extinguishment of rights of directors or shareholders
• Modification/extinguishment of mining leases
- A state law gets this protection only if it is reserved for the President’s consideration and receives his assent.
- Provides for compensation at market value when the State acquires land under personal cultivation within the ceiling limit.
2. Validation of Certain Acts and Regulations (Article 31B)
- Saves laws placed in the Ninth Schedule from being challenged for violating any Fundamental Right.
- Wider in scope than Article 31A.
- Provides immunity irrespective of whether the law fits into categories listed in Article 31A.
- Supreme Court in I.R. Coelho case:
• Judicial review is a basic structure.
• Laws added to Ninth Schedule after April 24, 1973, can be challenged if they violate Articles 14, 15, 19, 21 or basic structure.
3. Saving of Laws Giving Effect to Certain Directive Principles (Article 31C)
- Inserted by 25th Amendment Act, 1971.
- Protects laws implementing Article 39(b) and 39(c) from being challenged under Article 14 or 19.
- A law declaring that it gives effect to these principles cannot be questioned in court.
- Kesavananda Bharati case:
• Second provision (judicial review removal) declared unconstitutional.
- 42nd Amendment extended protection to all DPSPs, but this was struck down in Minerva Mills case.
4. Right to Constitutional Remedies (Article 32)
- Guarantees right to move Supreme Court for enforcement of Fundamental Rights.
- Considered itself a Fundamental Right.
- Supreme Court can issue directions, orders or writs for enforcement of rights.
- Parliament may empower other courts (except High Courts) to issue writs.
- The right under Article 32 cannot be suspended except as provided by Constitution.
- Supreme Court cannot decide matters not involving Fundamental Rights.
5. Power of Supreme Court Under Article 32
- Supreme Court acts as protector and guarantor of Fundamental Rights.
- Jurisdiction is original but not exclusive; High Courts also can enforce FRs under Article 226.
- A person may directly approach either SC or HC.
6. Writ Jurisdiction
Differences between SC and HC:
- SC writ jurisdiction is narrower; HC can issue writs for FRs and other purposes.
- SC writs extend throughout India.
- Remedy under Article 32 is a Fundamental Right; HC jurisdiction is discretionary.
7. Five Writs
a) Habeas Corpus (“to have the body of”)
- Court orders production of a detained person.
- Can be issued against public authorities and private individuals.
- Not issued when detention is lawful, for contempt, by competent court, or outside court jurisdiction.
b) Mandamus (“we command”)
- Command to public officials to perform duties.
- Can be issued to public bodies, corporations, tribunals, government.
- Not issued:
• Against private individuals
• For non-statutory duties
• For discretionary duties
• To enforce contracts
• Against President, Governors, Chief Justice acting judicially
c) Prohibition (“to forbid”)
- Issued by higher court to lower court/tribunal preventing excess jurisdiction.
- Applicable only to judicial/quasi-judicial bodies.
d) Certiorari (“to be certified/informed”)
- Removes a case from lower court/tribunal or quashes its order.
- For excess/lack of jurisdiction or error of law.
- Not issued against legislatures or private individuals.
e) Quo Warranto (“by what authority”)
- Challenges legality of claim to a public office.
- Applies only to substantive public offices created by law.
- Can be filed by any interested person.
8. Armed Forces & Fundamental Rights (Article 33)
- Parliament can restrict/modify FRs for:
• Armed forces
• Paramilitary forces
• Police forces
• Intelligence agencies
- Only Parliament has this power.
- Laws like Army Act 1950, Navy Act 1950 etc. enacted.
- Court-martial exempt from writ jurisdiction.
9. Martial Law & Fundamental Rights (Article 34)
- Allows restrictions on FRs in areas under martial law.
- Parliament can indemnify officials acting under martial law.
- Acts of indemnity cannot be challenged for violating FRs.
- Martial law applies in extraordinary situations: war, invasion, rebellion, riot, etc.
10. Effecting Certain Fundamental Rights (Article 35)
- Only Parliament can make laws relating to certain FRs.
- Ensures uniformity across India regarding these rights.
11. Criticism of Fundamental Rights
- Subject to many restrictions and exceptions.
- No explicit social/economic rights like right to work, social security, rest, leisure.
- Constitution criticized as “paradise for lawyers”.
- Parliament can amend, limit or abolish them.
- FRs can be suspended during emergency.
- Judicial process is expensive for common people.
- Preventive detention laws restrict liberty and give wide powers to the State.
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Subject: Polity
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