RIGHTS IN THE INDIAN CONSTITUTION

What is the meaning of Rights?

What do we need Rights?
Why Rights are Important?
Who grant us Rights?
What is Indian Constitution?
Rights in the Indian Constitution- History
Fundamental Rights in Brief- PART III
Directive Principles of State Policy in Brief- PART IV
Difference between FR’s and DPSP
Negative Rights v/s Positive Rights
Political and Civil v/s Socio-Economic Rights
Rights abide by Fundamental Duties- Part IV A
Important question: “Political Civil Rights are meaningless without Socio-
economic Rights”. Comment. Critically evaluate the Rights in Indian
Constitution.
 What are Rights?
• Right is essentially an entitlement or a justified claim.
• It denotes what we are entitled to as citizens, as individuals
and as human beings?
• Something due to us.
• But not everything we want and think is right.
• Example- uniform we wear in the school or a party at night
• Rights are those claims primarily, that are necessary along
with others to live a life of dignity and respect.
• For example- right to livelihood, right to express yourself,
right to live a healthy life, right to education.
 Famous Definition on Rights
• “everything has either a price or a dignity. What has a price
is such that something else can also be put in its place as its
equivalent; by contrast, that which is elevated above all price,
and admits of no equivalent, has a dignity”. - Kant
• Rights are god- given and can never be taken or even given
away.- Locke
• “We are entitled to rights because this enables us to fulfill our
moral agency, and thus, to contribute to the common good.”-
Bentham
• Actions are morally right if they tend to promote happiness or
pleasure. - Bentham
Why do we need Rights? Or Why Rights are
important?
• We need rights as they represents conditions that
seen as a source of collective dignity and respect.
Instance: Right to livelihood
• Rights protect our freedom of speech and
expression.
• It gives us opportunity to be creative and original.
• They necessary for our well being in the society.
Example- right to education and ban on drugs.
 Evolution of Rights
• In ancient and medieval period rights were
restricted to few but in modern periods rights
extended to all. They have been universalized
and democratized.
• There are not only political and civil rights but
social, economic, cultural and personal rights.
• All living in this world from new born baby to
animals are subjected to rights.
 Who grant us rights?
• Various theories on Rights
• In 17th century Locke said that rights are natural
• Bentham, no theory of natural rights is
nonsense as rights are the creation on state
based on Utility notion.
• Universal Human Rights notion that are natural
universal.
• Legal Rights granted by the state. In India it is
the Indian Constitution that given us certain
rights.
 What is Indian Constitution?
• Indian constitution is book of law that governs
the Indian Society.
• It provides a set of rules that allow minimal
coordination amongst its member.
• It specify who has power to make the decisions
in the society.
• It lists the rights of citizens and protect them
from the state arbitrary actions. These rights
are known as bill of rights.
 Rights in the Indian Constitution
FRs and DPSP
• Fundamental rights are separately listed in part III of the
constitution. The idea is taken from US constitution.
Fundamental rights are so important that there are special
provisions to protect them.
• Ordinary legal rights are enforced by ordinary law.
Fundamental Rights are guaranteed by Indian Constitution.
• Ordinary rights changed by ordinary process of law making
but fundamental rights changed by amending the
constitution itself.
• FRs are not absolute, it can be amended by the Parliament.
 6 Fundamental Rights
• Right to equality (article 14-17), it guarantees that everyone irrespective of their religion,
gender, caste, race and place of birth are equal. It ensures equal employment opportunities
irrespective of class, caste, class, creed etc.
• Right to freedom (article 19-22)it includes freedom of speech, freedom of expression,
freedom of association, freedom to practice any profession and reside in any part of the
country.
• Right against exploitation (article 23-24) prohibition of traffic in human beings, beggar and
other forms of forced labor. It also prohibits the employments of children under 14 years of
age in hazardous jobs.
• Right to Freedom of Religion (article 25-28)it indicates secular nature of Indian polity. There is
equal respect given to all religions. State itself has no religion, and it will not favor any
religion at the expense of other. There is freedom of conscience, profession, practice and
propagation of religion.
• Educational and Cultural Rights (article 29-30) these rights protect the rights of religious,
cultural and linguistic minorities by facilitating them to preserve their heritage and culture.
Educational rights are for ensuring education for everyone without discrimination.
• ARTCLE 31- RIGHT TO PRIVATE PROPERTY AND ARTICLE 19 (1) CEASED TO BE FRs by the 44
constitution amendment act, 1978. and REPLACED BY THE RIGHT TO ACQUIRE, HOLD OR
DISPOSE PROPERTY ARTICLE 300
• Constitutional remedies (article 32)- heart of the constitution by Dr. Br Ambedkar, can go to
the court for the restoration of fundamental rights
 Article 12 and 13
• Article 12 provide clarity to the term State:
• Action of whom challenge in the supreme court against violation of FRs? What is the
state? which agencies come under the state?
• It is important to describe or used state in wider context as fundamental rights provide
security to the citizens from state in relation with speech, expression, religion, against
exploitation, education, language, culture and constitutional remedies.
• State is legislative and executive organs of the union government
• Legislative and executive organs of the state government
• All local authorities- municipalities- municipal corporations, nagar palika and nagar
panchayats
• Panchayats – zila, mandal and gram
• District boards
• Improvement trusts
• Statutory (NHRC, NATIONAL LAW COMMISSION FOR WOMEN, NATIONAL GREEN
TRIBUNAL, NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION , ARMED
FORCES TRIBUNAL) and
• non- statutory- (CENTRAL BUREAU OF INVESTIGATION, CENTRAL VIGILANCE
COMMISSION, Lokpal and Lokyuktas)
• Article 13-
Article 14-18
ARTICLE 18
ARTICLE 19-22
ARTICLE 23 AND 24
ARTICLE 25-28
ARTICLE 29 AND30
ARTICLE 32
 Facts related to Fundamental
Rights
1. Fundamental rights are justiciable that means they are different from ordinary legal
rights that in case of violation of fundamental rights you can directly approach to the
Supreme court.
2. Some fundamental rights are available to all citizens while rest are for all persons.
3. Fundamental rights can be amended by the parliament by a constitutional
amendment only if it does not alter the basic structure of the constitution.
4. They are not absolute rights, they are reasonable restrictions which means they are
subjected to state security, public morality and friendly relation with other countries.
5. Fundamental rights can be suspended during a national emergency. But even
then article 20(Right of accused– convicted for an offence when the violation of law
is in the force at the time of commission of an act, no person punished for the same
offence more than once ) and 21 (Right to life and personal liberty) Article 21 A
inserted with 86th amendment to the Indian constitution, 2002 cannot be suspended.
(article 21- A provide free and compulsory education to children between age of 6-14)
6. Also, application of fundamental rights in military rule area is also restricted.
 Basic structure of the constitution
The amendment bill should be passed by the both houses of parliament with special
majority.
BASIC STRUCTURES ARE:
Supremacy of the constitution
Unity and Sovereignty of India
Democratic and republican form of government
Federal character of the constitution
Secular character of the constitution
Separation of power
Individual freedom
Rule of law
Judicial Review
Parliamentary system
Rule of equality
Free and fair election
Harmony between FRs and DPSP
Limited power to parliament to amend the constitution
Power of Supreme court under article 32, 136, 142 and 147
Power of the High court under article 226 and 227
 Landmark Case in defining the basic structure of Fundamental Rights are
1. Shankari Prasad case- 1951, SC contend the parliament power of amend the constitution under article 368
2. Sajjan Case- 1965, FRs could become a plaything
3. Golaknath case- 1967Frs are not amendable stated in article 13 , article 368 gives the procedure to amend the
constitution but not give power to the parliament to amend it, sees FRs as transcendental position.
4. Keshavnanda Bharti Case, April 24th 1973
It passed a judgment that parliament can only amend the constitution and not rewrite it. That means, it is the basis in Indian
law in which the judiciary can strike down any amendment that is in conflict with the basic structure of the constitution. FOR
THE FIRST TIME USED THE IDEA OF BASIC SRUCTURE
5. Indira Nehru gandhi vs Raj Narain Case- 1975
SC struck down clause 4 of 329-A inserted by 39th amendment in 1975 that held that election of President, VP and speaker
of LS beyond the scrutiny of the judiciary.
6. Minerva Mills Case 1980
Struck down two changes made to the constitution under 42nd amendment act, 1976, the constitution and not the
parliament is supreme, added two basic features to the constitution- JUDICIAL REVIEW AND HARMONY BETWEEN FRs and
DPSP
7. Waman Rao Case 1981- in keshavnanda Bharti case petitioner challenged the constitution 29th amendment act,
1972which place Kerala land reforms act 1963and its amending act into 9 th schedule of the Indian constitution. 9th schedule
and article 31-B added by first amendment to the constitution in 1951and provide a protective umbrella to land
reforms laws. Article 13 (2) holds that no law shall be made against FRs or any law made in contradiction of fundamental
rights shall be void .
Now article 31 B and laws in 9 schedule can be challenged in a court, if they go against the FRs . Wamam Rao case held
that amendment to 9th schedule until keshavnanda Bharti case are valid and those passed after that are not valid. ‘
8. Indra sawhney and Union of India 1992- extend the scope of article; 16 (4) provides 27% reservation to OBC, RULE
OF LAW ADDED TO BASIC FEATURES OF INDIAN CONSTITUTION.
.
 Waman Rao v/s Union of India-
1981
9th schedule – first amendment constitution in 1951
ARTICLE 31- RIGHT TO PRIVATE OWNERSHIP
Article 31-A, 1951, government can acquire any personal property, and decide its
compensation, cannot be challenged in SC as violation of FRs under article 14 and 19
Article 31-B provide protection to all laws in 9th schedule and cannot be challenged by
judicial review
Article 31-C 25th constitutional amendment in 1971, state government can encroach FRs to
implement DPSP
Dattaraya Govind and Waman Rao- filed against 31-A and 31-B as these are violation of
basic features.
Waman Rao challanged article 31- A,B,C, and 40 constitutional amendment, 1976
Verdict of SC- 31A is upheld constitutional
31-B all acts before keshavnanda bharti case were held immune and acts after that can be
subject to judicial review.
Here doctrine of prospective overruling used meaning that law will be applicable for future
cases only and not in retrospective way.
Article 31-C it supported the basic features of the constitution, but subject to judicial review
 9. S.R. BOMMAI CASE 1994

SC tried to curb the blatant misuse of article 356,

(presidential rule )

THAT POWER OF 356 IS NOT ABSOLUTE, PRESIDENT CAN SUSPEND THE

LEGISLATIVE ASSEMBLY AND NOT DISSOLVED, ARTICLE 356 IS SUBJECT TO
JUDICIAL REVIEW, AS FEDERALISM IS BASIC STRUCTURE OF THE
CONSTITUTION.

LOCAL GOVERNMENT HAS SAFEGUARDS NOW .

IF STATE POLICY IS BREACHING THE BASIC FEATURES OF INDIAN

CONSTITUTION, THEN ARTICLE 356 CAN BE USED ON THIS GROUND
 Directive Principle of State Policy
• Articles 36-51 under part IV of the constitution deal with Directive Principle
of State Policy.
• They are borrowed from Ireland constitution.
• Aim is to providing social and economic justice and set the path towards
the welfare state.
• These are the goals and objectives that we as a society should adopt.
• Certain rights that individuals should adopt apart from Fundamental
rights.
• Certain policies that government should adopt, these are moral force and
government expected to implement these policies.
• Article 39- right to adequate means of livelihood for all citizens
• Equal pay for equal work for men and women.
• Article 39A- promote equal justice and free legal aid to the poor.
• Article 43- secure a decent standard of living and social and cultural
opportunities for all workers.
• Article 47- raise the level of nutrition.
Difference between Fundamental Rights and Directive Principle of State Policy

Fundamental Rights are justiciable and DPSP are not

justiciable that means they are not legally
enforceable.
Fundamental rights restrain government from doing
certain things while DPSP exhort the government
to do certain things.
FRs protect the individual rights while DPSP ensures
the well being of entire society. For example
Right to work and against economic exploitation.
Thus, complementary to each other.
 Contradiction between FRs and
DPSP
At times implementing DPSP come in conflict with FRs
For example- when the government tried to pass laws to
abolish zamindari system, it opposed on the ground that it
violates Fundamental Right that is Right to Property.
But in keeping societal needs greater than individual interest,
government amend the constitution to give effect to DPSP. As
result in 1978, the 44th amendment to the constitution
removed the right to property from the list of Fundamental
Rights. That started further debates between judiciary and
parliament about how much power parliament has to amend
the constitution
 Negative v/s Positive Rights
Negative rights are those right that entail non-
interference from the society at large. For example
Right to life, it prevents others from killing me. But it
doesn’t oblige others to do something positive to
assist in well being.
Whereas positive rights impose obligations on other
people and state for the fuller enjoyment of the
rights. For example basic necessities like health
facilities, education facilities etc.
 Civil and Political v/s Social and Economic Rights

Civil and Political Rights are like Right to vote, right to

education without discrimination based on class,
caste, sex etc.
Social and economic rights are equal pay for equal
work.
Both types of rights are important and supplement
and compliment each other.
 Fundamental Duties
• With rights it comes duties
• Listed in Part IV-A of Indian Constitution
• It reminds Indian citizen their duties towards Indian society, it warns
citizens against anti national and anti social activities and inspire to
promote discipline and commitment among them.
• Duties like cherish and follow the ideals of Indian constitution, ideals
that inspire national freedom movement, protect the unity, integrity and
sovereignty of India.
• Also, it helps in determining constitutional validity of a law. That it helps
in promoting the harmony.
• Originally there were 9 duties with the 42 nd amendment in 1976 we have
10th fundamental duties that deals with enhancing excellence of
individual in all spheres promoting collective activities that helps in rise
of Endeavour and achievement and with 86 th amendment act in 2002
added 11th fundamental duties that deals with providing education
facilities to the children between the age of 6 and 14.
 Important Question
• “Political Civil Rights are meaningless without Socio-
economic Rights”. Comment. Critically evaluate the Rights
in Indian Constitution.