Fundamental Rights

Articles 12- 35
Fundamental Rights
•Introduction of Fundamental Rights
•Origin and development of fundamental
rights
Part III Fundamental rights, Magna carta
of India, 1214 English people assurance
from king john, Magna carta is the
evidence of written document
1689 Bill of Rights
1789 Declaration of rights of man and the
citizen
America first introduced bill of right in
the constitution
 Contd..
It is modern democratic thought
Free society
Elementary rights
Right to life, liberty, freedom of speech, freedom of
faith
West virginia state board of education v. Barnet nature
and purpose of bill of rights
Need for fundamental Rights: limitations on powers,
legislative, executive
Menaka Gandhi v. Union of India basic values since
from vadic period, pattern of guarantee, basic
structure of human rights
 Contd..
• Object: a government of law and not of
man
Nagaraj v. Union of India Importance of
fundamental rights are not gift from the
state to citizens
• Striking a balance between individual
liberty and social need:-
• A.K.Gopalan v. State of Madras –
Reasonable restrictions on liberties of
the country essential to the safety,
health, peace, general order, morals of
the community
 New judicial trend on Part III
• Menaka Gandhi
• Sunil Batra
• Haskot
• Hussainnara Khatoon’s
1. Widest interpretation of provisions of part III
Menaka Gandhi’s case s/c is given widest interpretation
‘court should be to expand the reach and ambit of
the fundamental rights rather than to attenuate their
meaning and content
Gopalan’s case:- they were mutually exclusive
2. Natural justice and due process:- Menaka Gandhi’s
case life, personal liberty must be just, fair,
reasonable
 Contd..
3. Prisoners rights and prison reforms:- solitary
confinement, hand-cuffing, harsh labour, degrading
jobs, punishment in jail, speedy trail, legal aid
4. Expanding role of writ of Habeas corpus:- Sunil
Batra case, Menaka Gandhi’s case
A.B.S.K. Sangh(Rly) v. Union of India Article, 32 not
only to protect individual rights also ‘access to justice
through, class actions, PIL, Representative litigations,
representative proceedings.
5. Human Rights Jurisprudence:- Sunil Batra’s case
human rights jurisprudence in India has constitutional
status.
1979 India ICCPR party
 Contd..
UDHR Art. 5 ‘No person shall be subject to torture or to
crueal inhuman or degrading treatment or punishment
Prem Shankar v. Delhi Administration courts must not
forget the core principles of Art. 5 of the UDHR 1948
American Constitution:- Bill of rights
Suspension of fundamental rights:- Art. 358
proclamation of emergency
Classification of fundamental rights
a. Right to equality Art. 14-18
b. Right to freedom Art. 19-22
c. Right to exploitation Art. 23-24
d. Right to freedom of religion Art. 25-28
 Contd..
• Cultural and educational rights Art. 29-30
• Right to constitutional remedies Art. 32-35
Fundamental rights available against state and not
against private individuals:-
P.D.Shamdasani v. Central Bank of India
 Article 12 definition of state
• Introduction
• The state:- government, Parliament of India,
Government and the legislature, of each states, all
local or other authorities within the territory of India
or under the control of the government of India
1. The government and parliament of India- executive,
legislature of the union
2. The government and the legislature of each state-
executive, legislature of states
3. All local or other authorities within the territory of
India
4. All local and other authorities under the control of
the government of India
 Contd..
• Authority- a person or a body exercising power to
command
• Authority- the power to make laws, orders,
regulations, by-laws, notifications
Local authorities- sec, 3(31) of General clauses Act,
Muncipalities, district boards, Panchayats,
improvement trusts, mining settlement boards
Other authorities- Art. 12 Government, Parliament,
legislatures of each states, all local authorities
University of Madras v. Santa Bai Madras High Court
other authorities exercising governmental or
sovereign functions.
 Contd..
Ujjammbai v. State of UP the court rejected this
restrictive interpretation of other authorities given by
Madaras High Court and held that the ejusdem
generis, bodies, named government of union and the
state.
Electricity Board, Rajastan v. Mohan Lal other
authorities means created by the constitution or
statute on whom powers conferred by law.
UP Whearing House Corporation v. Vijai Narain,
whearing housing corporation comes within the
meaning of the state
Ajay Hasia v. Khalid Mujib, society rigistered under the
societies Act, 1898 considered state or not yes state
 Contd..
S.M.Iiyas v. ICAR, indian council of agricultural
research is state
Central Inland water transport corporation v. Brojo
Nath Ganguly considered meaning of state
Sheela Barse v. Secretary, Children Aid Society
considered state
M.C.Mehta v. Union of India Private corporation comes
under meaning of state
Tekraj Vasandi v. Union of India Constitutional and
Parliamentary Studies also state registered under the
society Act, 1860
 Article 13 laws inconsistent with fundamental
rights
• Art 13 (1) all laws in force in the territory of India
immediately before the commencement of this
constitition shall be void to the extent to which they
are inconsistent with the provisions of part III of the
constitution.
• Art 13(2) state shall not make any law which takes
away or abridges the fundamental rights conferred by
part III of the constitution. These laws contravention
of fundamental rights be void.
 Contd..
• Art 13 (3) the term ‘law’ ordinance, order, by-law,
rule, regulations, notification, custom, usage having
force of law.
• Power of judicial review:- all facts comes under the
subject of judicial review as past as future the power
vested with High Courts and Supreme court of India.
(Art 226, Art 32) those laws inconstitent with
fundamental rights such laws void.
• Meaning of Judicial Review:- power of the courts to
pronounce legislative acts constitutionality
Fundamental Rights case:- J. Krishna Iyear, judicial
review is a part of our constitutional system and a
power has been vested in the high courts and
Supreme court validity of the Acts.
 Contd..
• Montesquieu saperation of powers, he was obviously
moved by his disire to put a curb on absolute and
uncontrolled power in any one organ of the
government. A legislature an executive and a judicial
power comprehend the whole of what is meant and
understood by the government.
• Judicial review is thus imposition of judicial restraint
on legislative as well as executive organs of the
government. The theory of limited government.
• This doctrine first time introduced by the supreme
court of America US Constitution not have any
provisions of Judicial review provisions.
 Contd..
• First US Supreme court introduced judicial review in
Marbuary v. Madison federalist had lost the elections
in 1800 before leaving he creating judicial posts
among these were 42 justices peace, which retiring
federalists president john Adams appointed forty two
federalists
• Indian constitution having provions regarding judicial
review
• State of Madras v. V.G.Row our constitution having
express provision of judicial review of legislation as
to its confirmity with the constitution
• A.K.Gopalan v. State of Madras in India constitution
is supreme and that a statute law to be valid must be
in all confirmity with the constitutional requirements
 Contd..
• Kesavananda Bharati’s case judicial review is the
basic of the indian constitution it cannot be destroyed
or damaged by the amending the constitution.
• L. Chandra Kumar v. Union of India power of
judicial review of legislative action as vested in H/C,
226, S/C 32
• Pre-Constitutional laws:- Art 13(1) all pre
constitution or existing laws which were in force
immediately before the commencement of the
constitution shall be void to the exetnt which they are
inconsistent with the F/R
• Art 13 is not retrospective in effect:- Art 13(1)
prospective nature. all pre-constitutional laws
 Contd..
• Inconsistent with F/R will become void only after the
commencement of the constitution.
• Keshava Madhava Menon v. State of Bombay there is
no F/R that a person shall not be prosecuted and
punished for an offence committed before the
constitution came into force. So far as the past Acts
are concerned the law exists notwithstanding that it
does not exist with respect to the future exercise of of
F/R.
• Doctrine of Severability:- when a part of statute is
declared unconstitutional then a question arise
whether the whole of the statute is to be declared void
or only that part which unconstitutional should be
declared as such. To resolve this problem the S/C
 Contd..
• Has devised the doctrine of severability or
seperability this doctrine means that if an offending
provisions can be seperated from that which is
constitutional then only that part which is offending is
to be declared as void and not the entire statute. Art
13 constitution use ‘to the extent of such
inconsistency be void’
• A.K.Gopalan v. State of Madras Sec 14 of The
prevention of Detention Act, 1950 as ultra vires
• State of Bombay v. Balsara Bombay Prohibition Act,
1949 the provisions which have been declared as void
do not affect the entire statute, therefore there is no
necessity for declaring the statute as invalid.
 Contd..
• Doctrine of Eclips:- based on the principle that a law
which violates F/R is not fully or void ab initio but
becomes only unenforceable. Remains in maribund
conditions. ‘it is over-shadowed by the F/R and
remain document but it is not dead’ such laws are not
wiped out entirely from the statute book. They exits
for all tranctions. And for the enforcement of rights
acquired and liabilities incurred before the present
constitution came into force and for determination of
right of persons who have not been given F/R by the
Const..
Bhikaji v. state of M.P C.P and Berar Motor Vehicles (
Amendment) Act, 1947 State govet.. Having
authority business motor transport operators no
autrty..
 Contd..
• Post constitutional laws:- Art 13(2) prohibits state to
make any law which takes away or abridges rights
conferred by part III of the constitution if state makes
such a law then it will be ultra virus and void to the
extent of the contravention. It is still-born law and
cannot be revived by removal of the constitutional
prohibition by subsequent amendment of the
constitution. Though post constitutional laws
inconsistent with F/R are void from their very
inception yet a declaration by the court of their
invalidity necessary.
• Deep chand v. State of UP doctrine eclips apply to
post constitutional laws or not it is made under Art
13(2) contravenes a F/R is nullity from its inception
and still born laws void ab initio
 Contd..
• Doctrine of Waiver:- can citizen waive his F/R part
III of the constitution of india
• Bashesher Nath v. Income Tax-Commissioner
petitioner case was investigation commissioner under
Sec, 5(1) of the Act, found larg scale of amount he
agree settle 1954 to pay Rs. 3 lakh in monthly
instalments
• in 1955 S/C in Muthia v. I.T.Commissioner Sec 5 (1)
of the Taxiation Act was ultra virus of Art 14
 Article 14 Equality before the law
• Underlying principle
• Legislative classification
• Tests for valid classification
• Application of Art. 14
• Single person laws
• Classification without difference
• Special courts and proceedural inequality
• Procedural fairness
• Administrative discretion
• Basic classification
• Tax laws and equality
• Expanding horizons of equality
 Contd..
• Equality before the laws and equal protection of laws
expression on UDHR english origin and American
constitution inspiration- equal status it is in our
preamble of the constitution
• State of west Bengal v. Anwar Ali Sarkar both
equality before the laws and equal protection of laws
expression mean one and the same thing
• Equality before the law- not absolute equality it is not
possible to achieve
• Rule of law- equality before the law an aspect of rule
of law in England
1. Absence of Arbitrary Power or Supremacy of the
law
2. Equality before the law
 Contd..
3. The constitution is the result of the ordinary law of
the land
• Equal protection of laws- Art 14 of American
constitution to equal laws like should be treated alike
and not that unlike should be treated alike
• Rule of law Basic structure
• Any person citizens and non citizens, natural persons,
legal persons
• Exceptions of the Rule of Law-
1. Illegal acts committed by private persons
2. Rule of law does not prevent certain class of persons
The president of India, The Governors they are not
answerable to any court
 Contd..
3. Ministers and other executive bodies
4. Certain members of the society- lawyers, doctors, etc.
Article 14 permits classification but prohibits class
legislation- it is not all laws must be general in
character it dones not mean that the same laws should
apply to all persons. It does not mean every law must
applicable universal
• It should reasonable classification not arbitrary
• Reasonable classification:- Art 14 forbids class
legislation
1. The classification must be founded on an intelligible
differentia which distinguish persons or things that
are grouped together from others left out of the group
 Contd..
2. The differentia must have a rational relation to the
object sought to be achieved by the Act
Special court Bill case S/C held that real meaning of Art
14
Dalmia’s case still holds good governing a valid
classification
1. A law may be constitutional even though it relates to
a single individual if on account of some special
circumstances or reasons applicable to him and not
applicable to others
2. There is always presumption of constitutionality of a
statute
3. The presumption may be rebutted in certain cases by
showing that on fact of the statute
 Contd..
4. It must be presumed that the legislature understand
and correctly appreciates the need of its own people.
5. In order to sustain the presumption of
constitutionality the court may take into consideration
matters of common knowledge
6. Legislature is free to recognise degrees of harm and
may confine its restrictions to those where the need is
deemed to be the clearest
7. While good faith and knowledge of the existing
conditions on the part of a legislature are to be
presumed
8. The classification must be made on the different basis
ie,. Geographical, object, occupation
 Contd..
9. Classification made by a legislature need not be
scientifically perfect or logically complete
10. There can be discrimination both in the substantive
as well as the proceedural law Art 14 apply both.
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Article 12 definition of state