FACULTY OF LAW THE CONSTITUTION OF INDIA FUNDAMENTAL RIGHTS

SUBMITTED BY: SUBMITTED TO:ANAMIKABISHNOI MS. PARUL PAREEK

Fundamental rights

a. Fundamental : basic, primary, vital, majorb. Right : interest recognized & protected by law c. Fundamental right – basic rightd. Enforced by statee. Derived from natural law

Origin of fundamental rights

• Magna carta

• Bill of rights

• France declaration of man and the citizen (1789)

• West Virginia state board of education v. barnet (319 US 624 : 87 LED 1928)

Need for fundamental rights

• Basic rights to be regarded as inviolable in all conditions

• Protection of rights and liberties • Limitation upon government• Potential development of man• Protection of moral and spiritual life• “a government of law and not of man”• Fair play and nation building

Case law

• Maneka Gandhi v. union of India (AIR 1978 SC 597 at p. 619)

a.Representation of basic values cherished by people since Vedic times

b.Protection of dignity of individualc.Balance between state power and individual

liberty

Balance between individual liberty and social need

• Absolute individual rights cannot exist in modern state

• Unrestricted liberty- license to chaos

• Reasonable restrictions required to main public order

• A.K. Gopalan v. state of madras (AIR 1950 SC 27)

Classification of fundamental rights

• Right to equality (articles 14-18).• Right to freedom (articles 19-22)• Right against exploitation (articles 23-24)• Right to freedom of religion (articles 25-28)• Cultural and educational rights (articles 29-

30)• Right to constitutional remedies (articles 32-

35)

Suspension of fundamental rights

• Article 358a.During emergency (article 352) article 19

suspended

b.Suspension removes restriction on the legislative and executive

c.State cant be challenged

Fundamental rights available against state

• Not available against private individuals

• Private action protected by the ordinary law of land

• Sham Dasani v. central bank of India (AIR 1952 SC 59)

Doctrine of eclipse• Based on the principle: law which violates

fundamental rights is not nullity or void ab initio• It is only unenforceable• Exist for a.all past transactionsb.enforcement of rights and liabilities acquired

before commencement of constitution(pre-constitutional law)

c.Determination of rights of persons who have not been given fundamental rights by constitution

• Bhikaji v. state of M.P. (AIR 1993 SC 412)a. Clause 6 of article 19 amended by the

constitution (1st Amendment) Act

• Deep Chand v. State of U.P. (AIR 1959 SC648)a.post-constitutional law contravening a fundamental

right – a nullity from its inceptionb.Doctrine doesn’t apply to post constitutional law

• Mahendra Lal Jain v. State of U.P. (AIR 1963 SC1019)

a.Agreed with judgment in deep Chand's caseb.Voidness of pre-constitutional law not from

inception unlike post-constitutional law

• State of Gujarat v. Ambica mills (AIR 1974 SC 1300)a.Modified its view b.Held post constitutional law as not void ab initio in

all cases c.Such law will become void and null only against

citizens and not non-citizens

Doctrine of waiver

• Waive means to relinquish• Doctrine of waiver means to waive a

fundamental right• One has no right to waive his constitutional right• Beshahser nath v. income tax-commissioner

(AIR 1959 SC 149)• Doctrine cannot be applied in interpreting Indian

constitution • Fundamentals rights are for the benefit of

general public not merely for individual benefit• Its an obligation upon state, hence, no person

can relieve the state of this obligation

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