Fundamental Rights : Article 12 & 13 [Concept]

In this article, we will do an introductory study of Fundamental Rights and discuss the two initial articles ( Articles 12 and 13 ) under Part 3 of the Constitution in a simple and easy way.

So for the basic understanding of Fundamental Rights, read this article till the end, and also read other articles related to this topic. [Articles on Fundamental Rights]

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| Basic understanding of fundamental rights

In the view of the 18th century German philosopher Immanuel Kant, “everything has either a price or a dignity”. Any other equivalent may be substituted for the one which has a price but which has no value other than it or which is above all prices; That is the dignity of a person.

This dignity of a person rests on some fundamental rights and obligations. Kant introduced an ethical concept of authority through these ideas. First, we should not become so selfish in the pursuit of rights that we harm others. Second, we should treat others the way we expect ourselves to be from others.

Human beings are reflective creatures and over time they have developed such a complex social structure where people have certain rights to live according to their wants and needs.

In society, someone has too many rights, some have very few, but everyone has some rights. Actually this sense of authority naturally exists in us.

| What is the right?

Rights are those demands or claims that we get, either from the state, from the society, from the family, from ourselves or from nature.

Political thinkers of the 17th and 18th centuries used to argue about authority that it is nature or God-given and no person or ruler can take it away from us. At that time three such natural rights were identified – right to life, right to liberty and right to property.

This concept of that time has become popular in recent years as Human Rights . As rational consciousness began to take hold in people, they started shifting from God-centered to self-centred and in this way human beings discovered many such rights over time which were suitable for them.

| What is Human Rights?

The basic logic behind human rights is that, just by being human, we are entitled to some things. Its second meaning is that all human beings are equal internally, so they must be given equal opportunity to be free and realize their full potential.

So in sum, all those rights which we as human beings must have at least, are human rights. For example- the right to live, it can include many related rights such as the right to eat, the right to wear clothes, the right to live in the house, etc.

That is why human rights are not bound by the boundaries of any state, but it is for the entire human race. This idea is used to eliminate or challenge existing inequalities based on race, caste, religion and gender in society.

The Universal Declaration of Human Rights (UDHR) is a landmark document in the history of human rights. It was accepted and implemented by the General Assembly of the United Nations on 10 December 1948.

Many countries and organizations advocating for human rights still draw inspiration from this document. See for yourself what is written in it.

| Universal Declaration of Human Rights (UDHR)

Since, the acceptance of innate dignity and respect and inalienable rights of all members of the human family is the foundation of world peace, justice and liberty,

Since the disregard for and hatred of human rights has resulted in such barbaric acts which have oppressed the soul of man, it is imperative that a world be established in which all human beings enjoy freedom of speech and belief and freedom from fear and deprivation. which is the most important desire of the human community.

Since it is necessary that man should not revolt as the last weapon against tyranny and oppression, therefore human rights should be protected by the rule of law,

Since, it is necessary to encourage the establishment of friendly relations among nations,
As the countries of the United Nations reaffirmed their faith in the Declaration of Fundamental Human Rights, the dignity and importance of man and the equal rights of men and women, and resolved to promote a better standard of living and social development for the achievement of universal freedom Is,
Whereas, Member States, in cooperation with the United Nations, have resolved to promote the respect and observance of human rights and fundamental freedoms at the global level,

Since, the universal concept of these rights and freedoms is most important for the full achievement of the above resolutions.
Therefore, today the United Nations General Assembly, hereby declares the Universal Declaration of Human Rights as a universally recognized criterion of achievement for all civilizations and countries, that every individual and every part of society, keeping always in view of this Declaration, these rights and freedoms, shall promote the dignity of freedoms through the medium of teaching and education and establish their universal and strong acceptance and compliance by development-oriented national and international means among themselves, among the peoples of the member countries and among the peoples of the territories under their jurisdiction.

UDHR Hindi Pdf^↗️ English Booklet^↗️

So you can see here that a lot of talk has been done here regarding rights, such as freedom of speech and belief, rule of law, dignity of man and equal rights of women etc. It is important to understand this so that when you understand about the fundamental rights given by the Indian Constitution, then you can understand that the Indian Constitution has included all these things in itself. Although a separate article on the human rights situation in India related to this is available on the site, definitely read it.

By talking about rights, it will not be implemented, it also has to be given proper constitutional protection. The Constitution of India is at the fore in this regard as it provides a long and comprehensive list of justifiable Fundamental Rights which are also legally enforceable. Mainly two terms come here – Constitutional Rights and Fundamental Rights.

| What is a constitutional right?

As the name suggests, this is the right that the constitution gives us. A question comes here that even fundamental rights are given by the Constitution itself.

Yes, but one thing is to be remembered that Fundamental Rights are only those which have been given under Fundamental Rights whereas Constitutional Rights are all those which are mentioned in the entire Constitution.

That is, all fundamental rights are constitutional rights but not all constitutional rights are fundamental rights. For example, if we take the right to property, it is a constitutional right but not a fundamental right.

| What is a fundamental right?

Fundamental Rights are those minimum rights which are required for all round development of an individual i.e. intellectual, moral, physical, and spiritual development. The term ” political rights ” is also used for this.

Fundamental Rights have been discussed from Article 12 to 35 under Part 3 of the Indian Constitution . And we will understand Article 12 and Article 13 in this article.

Part 3 of the Constitution is called the Magna Carta of India. It is called the Magna Carta because a document was first made in England in 1215, in which some fundamental rights were guaranteed to the public, which was called the Magna Carta. Since Part 3 of the Constitution of India also guarantees fundamental rights, it is called the Magna Carta of India .

| 7 Fundamental Rights of the Original Constitution

Originally 7 Fundamental Rights were given in the Constitution as you can see below. But here one thing is to be remembered that the right to property has been removed by the 44th Constitutional Amendment 1978 . That is why now there are only 6 fundamental rights .

Fundamental Rights

1. Right to equality, Article 14 – 18
2. Right to freedom , Article 19 – 22
3. Right against exploitation, Article 23 – 24
4. Right to freedom of religion, Article 25 – 28
5. Right to education and culture, Article 29 – 30
6. Right to Property – Article 31 x
6. Right to Constitutional Remedies, Article 32

| Article 12 – Definition

In fact, except for some provisions of the Fundamental Rights, all the provisions are against the arbitrary attitude of the State, that means if your Fundamental Rights are violated by the State, then you can directly go to the Supreme or High Court because Fundamental Rights The Supreme Court is ultimately responsible for its protection and enforcement.

Now a question comes here that who should we consider as a state because here the state is also called the state and the country is also called the State.

This state has been defined in Article 12 . So let’s see what is the state according to the constitution?

| What is the state?

According to this, The government executing the executive and legislative organs in the central government and the parliament of India is the state.

Similarly, the government and the state legislature, which execute the executive and legislative organs in the state, are the states.

️ All local bodies such as municipality, panchayat, district board etc., are states.

️ All local and other authorities within the territory of India or under the control of the Government of India, such as LIC, ONGC etc. are also states.

It means, if any of these fundamental rights are violated, then anyone can go to the Supreme Court. Remember here that this definition of a state is only for Part III and Part IV of the Constitution. It may also have different meanings for other parts of the Constitution.

| Article 13 – Laws inconsistent with or in derogation of Fundamental Rights

This article is very important, since the creation of the constitution, in all the disputes regarding fundamental rights, Article 13 has been there directly or indirectly in it.

You will understand this when you learn about cases like Golaknath case, Kesavanand Bharati etc. Well, we will discuss it further, now let us know what Article 13 says?

Article 13 – (1) All laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extent they are inconsistent with the provisions of this Part.

This means to say that all the laws that were going on before the implementation of our constitution, after the implementation of the constitution, that part of it will be repealed which violates the fundamental rights mentioned in part 3 of the constitution.

(2) The State cannot make any law which takes away or abridges the Fundamental Rights mentioned in this Part of the Constitution. But if the state does so, those laws will be void to the extent that it is violating the fundamental rights.

If the Supreme Court or the High Court finds that the fundamental rights are being violated by any law, then the Supreme Court or High Court can also declare that law unconstitutional. A lot of questions arise in this regard, read the below FAQs to understand the answers.

Now here also there is a question that what is the method or who should we follow. The answer is given under point (3) of this article –

| What is law?

According to Article 13, the following things shall be deemed to be law.

1. Laws passed by Parliament or State Legislature.
2. Ordinance issued by Governor and President.
3. Delegated statement such as – (Order, Bye law, Rule, Regulation or Notification.
4. Non-legislative sources of law such as custom or practice having force of any law.

Note – Whether the Constitutional Amendment is a law or not has not been discussed here, so for a long time it was believed that since the Constitutional Amendment is not a law, it cannot be challenged in the court.

But in the Kesavananda Bharati case of 1973, the Supreme Court held that the constitutional amendment can also be challenged on the ground of violation of fundamental rights and if found inconsistent with the fundamental rights, it can be declared invalid by the Supreme Court.

| importance of fundamental right

Fundamental rights are the root of democratic system. These rights entrust the state with a statutory obligation to act in certain ways. Each authority dictates what is doable and what is not for the state. For example, if someone damages my right to life, then it becomes the duty of the state to make such laws so that no one can harm my right to life.

It creates the necessary conditions for the physical and moral security of the individual and maintains personal dignity.

It brings total control over government and promotes individual and collective rights. That is why it is called the protector of personal liberty.

It provides an opportunity to the people to participate in the political and administrative system while protecting the interests of minorities and weaker sections of the society.

It preserves the rule of law in the country and strengthens social equality and collective justice.

| Rights and Duties

Whenever we exercise our rights, we should assume that the sense of duty is also inherent in it. This is not only for the states but for every individual. As if we have got the right to do business, then we started running such business due to which water, land, air are all getting polluted. In such a situation, it becomes our responsibility or duty to ensure our role in maintaining ecological balance by planting new trees, preventing deforestation, preventing water from being polluted.

By the way, through the 42nd Constitutional Amendment 1976, Fundamental duties have been ensured for every citizen by adding a new Part 4A in the Constitution.

| Features of Fundamental Rights

Some of the fundamental rights discussed under Part 3 are available only to Indian citizens such as Article 15, Article 16, Article 19, Article 29 and 30. The latter is also available to all other individuals. We have also discussed this in the article on Citizenship .

These rights are not unlimited, that is, the state can impose reasonable restriction on it. For example, under the freedom of expression, anyone has the freedom to take pictures, but if he takes a picture of someone taking a bath, then it will be a violation of his right to privacy, and such a right cannot be given to anyone.

This right is not permanent, that is, Parliament can cut or add something to it. Yes, but the condition is that such an amendment should not harm the basic structure of the Constitution . For example, if the Parliament wants that the right to life should be removed from the list of fundamental rights, then they cannot do so.

Although the Right to Property was removed from the list of Fundamental Rights through the 44th Constitutional Amendment , but since it was not the basic structure of the Constitution in the eyes of the Supreme Court, its removal did not make any difference.

They are enforceable and they are guaranteed and protected by the Supreme Court. In case of violation of Fundamental Rights, a person can directly approach the Supreme Court and the Supreme Court is bound to ensure the same.

That’s all, in this article, an attempt has been made to cover all the important aspects in a nutshell, hope you will understand. In the next article, we will discuss the Right to Equality i.e. from Article 14 to Article 18, click to read it. For now hindi quiz is available on this topic, if you wish you can try..!

Right to Equality

Right to Freedom

FAQs

Q. Will the Supreme Court nullify the entire law if it is inconsistent with the Fundamental Right?

Generally the court adopts the principle of separation. That is, the Supreme Court finds that if any provision of any law is inconsistent with the fundamental rights which can be taken away from that law/act, then only that provision will be declared void and not the whole law. If the law is made in such a way that it is impossible to exclude such inconsistent provision from it, then the court considers the whole law to be void.

Q. What are the rights and duties of the Supreme Court in the case of violation of Fundamental Rights?

The Supreme Court respects Acts made by the Legislature and generally assumes that the Legislature has made it, it must have been done right. But once the Supreme Court finds that the fundamental rights of a petitioner have been violated by the laws of the state, then it is the duty of the Supreme Court to intervene in that matter, and enforce the fundamental rights. .

Q. When does the Supreme Court consider the constitutionality of a law?

The Supreme Court generally looks at two things before considering the constitutionality of a law. The first is whether the law has been made by following the procedure of ordinary law making and second whether that law or any part thereof violates the fundamental rights.

Remember – the court assumes that the law is constitutional and the burden of proving that the law violates the Fundamental Rights rests on the person who has appealed.

Also remember that if a law is being used in a wrong way, then the court does not consider its constitutionality.

Q. Who can question the constitutionality of the law and who cannot?

on which that method has a direct effect. He has to show before the court the damage caused to him by that law. If a person does not come under the category of Fundamental Rights, then he cannot object to the validity of any law.

Q. Can Fundamental Rights be relinquished?

The general opinion in this matter is that a citizen cannot do this, because these fundamental rights have been created for the benefit of that person.

Q. Can Parliament or Legislature pass the same law again if it is declared unconstitutional or void by the Supreme Court?

No, Legislature or Parliament can again make a new law which is free from unconstitutional elements.