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FUNDAMENTAL RIGHTS – BASIC

STRUCTURE
 Right to Constitutional Remedies
2

 Art 32. Remedies for enforcement of rights conferred by this Part.—

 (1) The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part is guaranteed
 (2) The Supreme Court shall have power to issue directions or orders
or writs, including writs in the nature of habeas corpus, mandamus,
prohibition,quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this
Part
3

 Habeas Corpus
 Tohave the body of
 Against State as well as private individuals

 Writ not issued if

 Detention is legal
 Contempt

 Detention by competent court

 Outside Jurisdiction
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 Mandamus
 We command – Demanding a particular action from a State position or
lower court
 Writ not issued
 Against private individuals
 Prohibition
 To forbid – Issued to forbid a lower court from passing an order
5

 Certiorari
 To be certified – Issues to quash an already passed order, similar to appeal
against lower court order
 Till 1991only against Courts. After that administrative acts also

 Quo Warranto
 To be issued to remove an ineligible person from holding public office.
6

 (3) Without prejudice to the powers conferred on the Supreme Court

by clauses (1) and (2), Parliament may by law empower any other
court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2).
7

 Art 33. Power of Parliament to

modify the rights conferred by this
Part in their application to Forces,
etc.—Parliament may, by law,
determine to what extent any of
the rights conferred by this Part
shall, in their application to,—
 (a) the members of the Armed
Forces; or
 (b) the members of the Forces
charged with the maintenance of
public order; or
8

 (c) persons employed in any bureau or other organisation established

by the State for purposes of intelligence or counter intelligence; or
 (d) person employed in, or in connection with, the telecommunication
systems set up for the purposes of any Force, bureau or organisation
referred to in clauses (a) to (c),be restricted or abrogated so as to
ensure the proper discharge of their duties and the maintenance of
discipline among them.
9

Art 35A is not longer applicable after abrogation of Art 370

 Art 35A passed by a Presidential order in 1954 and not through an
amendment under Art 368
 Art 35A Notwithstanding anything contained in this Constitution, no

existing law in force in the State of Jammu and Kashmir, and no law
hereafter enacted by the Legislature of the State:
(a) defining the classes of persons who are, or shall be, permanent
residents of the State of Jammu and Kashmir;
10

(b) conferring on such permanent residents any special rights and

privileges or imposing upon other persons any restrictions as respects
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or

(iv) right to scholarships and such other forms of aid as the State
Government may provide,
shall be void on the ground that it is inconsistent with or takes away
or abridges any rights conferred on the other citizens of India by
any provision of this part."
 Criticisms of FRs
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 Excessive limitations
 No Social and Economic rights
 No clarity
 Public order, public interest etc
 No permanency
 Right to property
 However after Kesavananda
Bharti case Basic structure cannot
be amended
12

 Suspension during Emergency

 Now Art 20 and 21 cannot be suspended even during emergency after 44th
amendment
 Expensive
 Preventive detention by Art 22
 No consistent philosophy
 Importance of FRs
13

 Secular
 Justice
 Liberty
 Equality
 Individual versus powerful state
 Protect minorities
 Establish Rule of Law
 Makes India an unified nation
 Weaker sections
 Speedy remedy
 Rights outside Part III
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 Art 301. Freedom of trade, commerce and intercourse.—Subject to the

other provisions of this Part, trade, commerce and intercourse
throughout the territory of India shall be free.
 Art 300A. Persons not to be deprived of property save by authority of
law.— No person shall be deprived of his property save by authority
of law.
15

 Art 265. Taxes not to be imposed save by authority of law.—No tax

shall be levied or collected except by authority of law
 Art 325. No person to be ineligible for inclusion in, or to claim to be
included in a special, electoral roll on grounds of religion, race, caste
or sex
 Art 326.Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage.— The
elections to the House of the People and to the Legislative Assembly of
every State shall be on the basis of adult suffrage
 Amendability of Fundamental Rights
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 1st Amendment Act 1951

 Art 31A. Saving of laws providing for acquisition of estates, etc.-(1)
Notwithstanding anything in the foregoing provisions of this Part, no law
providing for the acquisition by the State of any estate or of any rights
therein or for the extinguishment or modification of any such rights shall be
deemed to be void on the ground that it is inconsistent with, or takes away
or abridges any of the rights conferred by, any provisions of this Part
 Art 31B. None of the Acts and Regulations specified in the Ninth Schedule
nor any of the provisions thereof shall be deemed to be void, on the
ground that such Act, Regulation or provision is inconsistent with, or takes
away or abridges any of the rights conferred by, any provisions of this
Part
 Amendability of Fundamental Rights
17

 Curtailed right to property

 Shankari Prasad Vs Union of India(1951)
 Whether FRs can be amended under Art 368
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 Art 13 (2) 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
 (3) In this article, unless the context otherwise requires,—
 (a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force
of law;
 SC judgement : Law mentions only about ordinary law and not
Constituent Law
19

 7th(A)Act,1956
 9th Schedule for certain State Acts
 Golak Nath Vs State of Punjab, 1967
 Constitutional (A) Act also a law within Art
13
 FRs are given a transcendental and
immutable position
 24th(A)Act,1971
 Art 13(4) Nothing in this article shall
apply to any amendment of this
Constitution made under article 368.
 Original Article 368
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 368. [(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 and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:
 Provided that if such amendment seeks to make any change in—
 (a) article 54, article 55, article 73, article 162 or article 241, or(b) IV of Part V, Chapter V of Part VI,
or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of
States in Parliament, or (e) the provisions of this article,
 the amendment shall also require to be ratified by the Legislatures of not less than one-half of the
States by resolutions to that effect passed by those Legislatures before the Bill making provision for
such amendment is presented to the President for assent.
21

 Art 368(3) Nothing in Article 13 shall

apply to any amendment made under
this article
 Kesavananda Bharti Vs State of
Kerala 1973
 Over ruled its judgment on Golak Nath
case
 Upheld 24th(A) Act
 However decided that Basic structure
cannot be amended
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 42nd(A)Act 1976
 Art 368[(4) No amendment of this Constitution (including the provisions
of Part III) made or purporting to have been made under this article
whether before or after the commencement of section 55 of the
Constitution (Forty-second Amendment) Act, 1976] shall be called in
question in any court on any ground
 (5) For the removal of doubts, it is hereby declared that there shall be
no limitation whatever on the constituent power of Parliament to
amend by way of addition, variation or repeal the provisions of this
Constitution under this article.]
23

 Minerva Mills Vs Union of India(1980)

 Struck Art 368(4) and (5) as invalid
 Judicial review is basic feature
 Basic Structure/Basic Features
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 Supremacy of Constitution
 Sovereign, Democratic, Republican
 Secular
 Separation of Powers
 Judicial review
 Unity and Integrity of nation
 Rule of law
 Parliamentary system
 Principle of equality
 Independence of Judiciary
 Free and fair elections
25

 Coelho case in 2007

 The basic structure is the very essence of the Indian Constitution any law or
amendment found inconsistent with Part 3 of the Indian Constitution even if it
is in the Ninth Schedule would be struck down by the process of judicial
review
 The validity of the Ninth Schedule has already been upheld by this court
and it will not be open to challenges on the principles declared in the
judgment. However, any law added in the Ninth Schedule after 24th April
1973 violative of Article 21 read with Article 19 Article 14 and the
principles underlying thereunder can be challenged.
26

 Do you think that constitution of India does not accept principle of strict
separation of powers rather it is based on the principle of ‘checks and
balance’? Explain. (2019)
 “Parliament’s power to amend the Constitution is a limited power and it
cannot be enlarged into absolute power.” In the light of this statement
explain whether Parliament under Article 368 of the Constitution can
destroy the Basic Structure of the Constitution by expanding its
amending power? (2019)
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In the context of polity, which one of the following would

you accept as the most appropriate definition of liberty?
(a) Protection against the tyranny of political rulers
( b ) A b s e n c e o f r e s t r a i n t
( c ) O p p o r t u n i t y t o d o w h a t e v e r o n e l i ke s
(d) Opportunity to develop oneself fully
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Answer D

Statement of J S Mill in his book ‘On Liberty”

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The Ninth Schedule was introduced in the Constitution of

India during the prime ministership of
(a) Jawaharlal Nehru
(b) Lal Bahadur Shastri
(c) Indira Gandhi
(d) Morarji Desai
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Answer A

9th schedule was through first amendment in 1951

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A constitutional government by definition is a

(a) government by legislature
(b) popular government
(c) multi-party government
(d) limited government
32

Answer D

One of the functions of constitution is to limit the powers of Government with

respect to what it can do to its citizens. Hence answer is Option (d). Refer NCERT
first chapter under Indian constitution at work.
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DIRECTIVE PRINCIPLES OF STATE

POLICY
34

 The Directive Principles are

instructions to the State authorities
to secure to all citizens justice-
social, economic and political
 The makers of the Constitution of
India were influenced by the Irish
nationalist movement
 The concept of Directive Principles
of State Policy was borrowed
from the Irish Constitution (Ireland
borrowed from Spain)
35

 The Indian constitution was also influenced by the United Nations Universal
Declaration of Human Rights
 Ambedkar described these principles as novel features of the Indian
Constitution
 It is contained in Part IV of the Constitution of India
 It is between Art 36 and Art 51
 It mainly contains three things
 Goals and objectives, we as a society should adopt
 Certain rights that individuals should enjoy apart from fundamental rights
 Certain policies that Government should adopt
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 Art 36. Definition.—In this Part, unless the context otherwise requires,
“the State” has the same meaning as in Part III.
 Art 37. Application of the principles contained in this Part.—
 The provisions contained in this Part shall not be enforceable by any court,
 but the principles therein laid down are nevertheless fundamental in the
governance of the country
 and it shall be the duty of the State to apply these principles in making laws.