Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the Constitution either directly or through officers subordinate to him. The legislative powers of the Union are divided between the Parliament and Legislatures of the States. The ambit and limitations on their respective powers are found in article 246 read with article 245, Schedule VII, Lists 1,2 and 3 of the Constitution.
For the Union of India, the Supreme Court is established and its powers and jurisdiction are set out in articles 124 to 147. This follows the pattern of the Government of India Act, 1935, which was the previous Constitution of the Government of India. The material points substantially altering the edifice are first in the Preamble which declares India a Sovereign Democratic Republic to secure to all its citizens justice, liberty and equality and to promote among them all, fraternity.
Part III of the Constitution is an important innovation. It is headed “Fundamental Rights.” In that Part the word “State” includes both the Government of the Union and the Government of the States. By article 13 it is expressly provided that all laws in force in the territory of India, immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of this Part, to the extent of such inconsistency, are void. Therefore, all laws in operation in India on the day the Constitution came into force, unless otherwise saved, to the extent they are inconsistent with this Chapter on Fundamental Rights, become automatically void.
Under article 13(2) provision is made for legislation after the Constitution comes into operation. It is there provided that 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. Therefore, as regards future legislation also the Fundamental Rights in Part III have to be respected and, unless otherwise saved by the provisions of the Constitution, they will be void to the extent they contravene the provisions of Part III.
Under article 245 (1) the legislative powers conferred under article 246 are also made “subject to the provisions of this Constitution,” which of course includes Part III dealing with the Fundamental Rights. The term law in article 13, is expressed to be wide enough to include Acts, Ordinances, Orders, Bye-laws, Rules, Regulations and even custom or usage having, in the territory of India, the force of law. The rest of this Part is divided in six divisions.
- “Right to Equality” is found in articles 14-18,
- “Eight to Freedom” in articles 19-22,
- “Right against Exploitation” in articles 23 and 24,
- “Right to Freedom of Religion” in articles 25-28,
- “Cultural and Educational Rights” in articles 29 and 30,
- and “Right to Constitutional Remedies” in articles 32-35.
It is obvious that by the insertion of this Part the powers of the Legislature and the Executive, both of the Union and the States, are further curtailed and the right to enforce the Fundamental Rights found in Part III by a direct application to the Supreme Court is removed from the legislative control. The wording of article 32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned in article 32 (2), only in respect of the Funda- mental Rights mentioned in Part III of the Constitution.