CHAPTER- 7

FUNDAMENTAL RIGHTS
Fundamental Rights
Fundamental Rights
 Fundamental Rights

1. Enforceable and Justifiable

2. Negative Obligation on state

3. Not absolute but restricted

Nature of Fundamental Rights
 Fundamental Rights that are Absolute

1. Article 17: Right against Untouchability

2. Article 21 (A): Right to Education

3. Article (24): Not to Employ children below 14 in hazardous work

4. Article 25 (1): Right to freedom of conscience

 Fundamental Rights
• These are enshrined in Part III of the Indian Constitution under Articles 12 to
35.
• According to Dr. B R Ambedkar it is the most criticized part of the Constitution.
• The fundamental rights are justifiable.
• In the original Constitution 7 Fundamental Rights are mentioned.
• Right to property (31) (Deleted through the 44th Amendment) .
• 3 GENERATION OF RIGHTS- (In November 1977, Karel Vasak, UNESCOs legal
advisor)
1) 1ST GENERATION-”Civil and political rights”. Example Right to life, personal
liberty and speech
2) 2ND GENERATION-”Social and Economic Rights”. Example Right to livlihood,
food, Shelter
3) 3RD GENERATION-”idea of collective Rights”. Example rights of consumer,
minority
 Original Constitution 7 Fundamental Rights
Right to Equality (14-18)

Right to Freedom (19-22)

Right Against Exploitation (23-24)

Right to Freedom of Religion (25-28)

Cultural and Educational Rights (29-30)

Right to property (31) (Deleted through the 44th amendment)

Right to Constitutional Remedies (32).

 Fundamental Rights
• In the year 1978, through 44th amendment act Right to property was deleted
from the list of Fundamental Rights.
• Now it is a legal right under Article 300 A in part XII of the constitution.
• The numbers of Fundamental Rights are 6 in the present day Constitution.
• The state can impose restrictions on Fundamental rights. (They are not absolute
but qualified).

• Except Fundamental rights Guaranteed under Articles 20 and 21 remaining

Fundamental rights can be suspended during operation of National Emergency.
• Article 19 can be suspended only when emergency is declared on the grounds of
war or external aggression and not on the grounds of armed rebellion.
 Amendability of FR
• 1st Amendment act, 1951: Added article 14 (4) which authorizes state to
make special provision for the socially and educationally backward classes (SC,
ST). It Resulted in Reservation System- case went to Supreme Court. Ninth
Schedule was inserted which protects any legislation inserted within the
schedule, from judicial review.
1. Sankari Prasad Vs Union of India Case, 1951: SC held that FR can be
amended by the government.
2. Sajjan Singh Vs state of Rajasthan case, 1965: SC again held that FR
can be amended by the government.
3. Golak nath Vs state of Punjab Case, 1967: SC held that FR can not be
amended by the government
 Amendability of FR
• 24th Constitutional Amendment act, 1971: Parliament added 13
(4), which added that amendment to the constitution will not be a new “Law”.
It also amended article 368.
368. Power of Parliament to amend the Constitution and Procedure therefor:
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal any provision of
this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of
a Bill for the purpose in either House of Parliament, and when the Bill is passed in
each House by a majority of the total membership of that House and by a majority
of not less than two-thirds of the members of that House present and voting, it
shall be presented to the President who shall give his assent to the Bill.
(3) Nothing in article 13 shall apply to any amendment made under this article.
 Amendability of FR
• Keshwa nand baharati case, 1973: Under this case Supreme Court of
India outlined the Basic Structure doctrine of the Constitution.
• Basic Structure Includes:

Supremacy of the Constitution • Unity and integrity of the nation

• Republican and democratic form of • Sovereignty of India
government • Democratic character of the polity
• Secular character of the Constitution • Unity of the country
• Separation of powers between the legislature, • Essential features of the individual freedoms
executive and the judiciary secured to the citizens
• Federal character of the Constitution • Mandate to build a welfare state
• The mandate to build a welfare state
 Doctrines
• Doctrine of Severability: A law becomes invalid only to the extent to which it is
inconsistent with the fundamental rights. So only that part of the law will be
declared invalid which is inconsistent, and the rest of the law will stand.

• Doctrine Of Eclipse: The Doctrine of Eclipse is based on the Principle that a law
which violates Fundamental Rights is not nullity or void ab initio but becomes
only unenforceable. It is Overshadowed by the Fundamental Rights and remains
dormant, but it is not dead.
 The state is As Per Supreme court
It is

If body is created by a statute or executive order

If financed by state

If it is used as Instrument by the state (PSU/PSE)

If body performs soveriegn functions of the state

 Case of BCCI
• Argument against Court intervention:
1. BCCI is NOT state even as per court`s own judgement.
2. It is governed by TN Cooperative Societies Act
• Courts Argument:
1. There is Pervasive (All over) Corruption
2. BCCI`s Functioning affects the sentiments of the millions of the people.
Thus it is performing public functions.
 Article 12 explains the state
• The state includes

The government and the parliament of India

The government and the state legislature

All local authorities (municipalities, Panchayat Raj, District boards, etc)

Other statutory and non statutory authorities (LIC, ONGC etc).

 Article 12(State)
• In Union of India v/s R.C.Jain , SC said to be considered a “local authority”, an
authority must fulfill the following tests-
1) Separate legal existence.
2) Function in a defined area.
3) Has power to raise funds,
4) Enjoys autonomy.
5) Entrusted by a statute with functions which are usually entrusted to municipalities
 Article 12(State)
• In the case of R.D.Shetty v/s International Airport Authority the SC laid down five
tests to be considered “other authority”
1) Entire share capital is owned or managed by State.
2) Department of Government is transferred to Corporation.
3) Functional character governmental in essence.
4) Deep and pervasive State control.
5) Object of Authority.
• In The University of Madras V Shanta Bai, in 1951, term Ejusdem Generis could
be used for defining different bodies as the state only if they performed activities
that could be termed as synonymous with government functions but this term
was completely rejected afterwards.
 Fundamental Rights
• The actions of the state (all the above said) can be challenged in the courts as the
violation of Fundamental Rights.

• Article 13: All laws that are inconsistent with or in derogation of any of the
Fundamental Rights shall be void.

• This article expressively provides for the doctrine of judicial review.

• This power is conferred to SC (Article 32) and High Courts (Article 226) that can
declare a law unconstitutional and invalid on the grounds of contravention of any
of the fundamental Rights.
• Note: The words ―Judicial Review are not mentioned in the Constitution.
 Fundamental Rights
• Judicial review is a type of court proceeding in which a judge reviews the
lawfulness of a decision or action made by a public body. In other words, judicial
reviews are a challenge to the way in which a decision has been made, rather than
the rights and wrongs of the conclusion reached.
• In India the Judicial Review Power Rest with the SC and HC and Not with
Subordinate court.
 Questions
Q. Who drafted the resolution on fundamental rights for the Karachi session of
Congress in 1931 ? [2005]
(a) Dr. B.R. Ambedkar
(b) Pandit Jawaharlal Nehru
(c) Dr. Rajendra Prasad
(d) Sardar Vallabhbhai Patel
 Questions
Q. Prohibition of discrimination on grounds of religion etc. (Article 15 of the
Constitution of India) is a Fundamental Rights classifiable under: [1995]
(a) the Right to Freedom of Religion
(b) the Right against Exploitation
(c) the Cultural and Educational Rights
(d) the Right to Equality
 Questions
Q. A British citizen staying in India cannot claim the right to: [1999]
(a) Freedom of trade and profession
(b) Equality before the Law
(c) Protection of life and personal liberty
(d) Freedom of religion
 Questions
Q. Which one of the following rights was described by Dr. B.R. Ambedkar as the
heart and soul of the Constitution? [2002]
(a) Right to Freedom of Religion
(b) Right to Property
(c) Right to Equality
(d) Right to Constitutional Remedies
 Questions
Q. What are the Fundamental Rights? Critically Examine its
Significance (200w)
Q. What is Judicial Review? Do you it makes Legislature and
Executive More Accountable. (200 w)
Q. What are the Rights within the Ambit of the Article 21 of
the Indian Constitution? (200 w) (2012).