Fundamental rights Course-LL.B

Subject-Constitutional law of India-II

Unit-1

1

DEFINITION

Fundamental Rights are essential human rights that are offered to every citizen irrespective of caste, race, creed, place of birth, religion or gender. These are equal to freedoms and these rights are essential for personal good and the society at large.

STATE

The Government and parliament of India i.e executive and Legislature of the Union

The Government and the Legislature of each State i.e. Executive and Legislature

All local and other authorities within the territory of India.

All local and other authorities under the control of the Government of India.

Authorities-power to make laws,orders,regulations,bye-laws,Notification etc.Local authorities- Municipalities , District boards ,Panchayats, improvement trust and mining settlement Boards.

OTHER AUTHORITIES

In University of Madras v Santa bai

In electricity board ,Rajstan v Mohan lal

Sukhdev singh v. Bhagatram

DOCTRINE OF SEVERABILITY

Article 13 of the Constitution of India provides for Doctrine of severability which states that-All laws in force in India before the commencement of Constitution shall be void in so far they are inconsistent with the provisions of the Constitution.

The State shall not make any law which takes away/ shortens the rights conferred in Part III of the Constitution. (i.e. Fundamental Rights)

Any law made in contravention of the provisions of the Constitution shall be void and invalid.

The invalid part shall be severed and declared invalid if it is really severable. (That is, if the part which is not severed can meaningfully exist without the severed part.)

Sometimes the valid and invalid parts of the Act are so mixed up that they cannot be separated from each other. In such cases, the entire Act will be invalid.

DOCTRINE OF ECLIPSE

All laws in force in India before the commencement of the Constitution shall be void in so far they are inconsistent with the provisions of the Constitution.

Any law existing before the commencement of the Constitution and inconsistent with the provision of Constitution becomes inoperative on commencement of Constitution.

But the law does not become dead.

list][*]It is overshadowed by Fundamental Rights.[/list] The law remains a valid law in order to determine any question of law

incurred before commencement of the Constitution.

An existing law only becomes eclipsed to the extend it comes under the shadow of the FR.

DOCTRINE OF WAIVER

Waiver means a document that records the waiving of a legal right.

Article 14 provides that the FR cannot be waived by any person.

The Supreme Court shall see that the FR are enforced evenif one might have waived it.

In the case of Basheshar Nath Vs CIT, it was held that the FR cannot be waived.

Distinction Between pre constitutinallaws and post constitutinal laws

• The laws which were in force before the commencement of the Constitution are Pre-Constitutional Laws and the laws enacted by the State after the commencement of the Constitution are called as Post-Constitutional laws. The above referred Doctrine of Lapse is applicable only in terms of the Pre-Constitutional Laws.

Article 13(1) of the Constitution states that, “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void”. While sub-clause (2) of the Article 13 states that “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”. Article 13(1) deals with the pre-constitutional laws and Article 13(2) deals with Post-Constitutional Laws.Both the definitions highlight the importance of the Fundamental Rights and their overshadowing nature in pursuant to Pre-Constitutional Law and their consideration to be taken while creating Post-Constitutional Laws.

SIX FUNDAMENTAL RIGHTS

The Right to EQUALITY

The Right to FREEDOM

The Right to Freedom from EXPLOITATION

The Right to FREEDOM OF RELIGION

CULTURAl and EDUCATIONAL Rights

The Right to CONSTITUTIONAL REMEDIES

Right to equality

Right to equality

(i) Equality before Law :- Article 14 of the constitution guarantees

that all citizens shall be equally protected by the laws of the country

(ii) Social equality and equal access to public areas:- Article 15 of

the constitution states that no person shall be discriminated on the

basis of caste, colour, language etc. Every person shall have equal

access to public places like public parks, museums, wells, bathing

ghats and temples etc. However, the State may make any special

provision for women and children.

Right to equality

(iii) Equality in matters of public employment:- Article 16 of the

constitution lays down that the State cannot discriminate against

anyone in the matters of employment. All citizens can apply for

government jobs.

(iv) Abolition of untouchability :- Article 17 of the constitution

abolishes the practice of untouchability. Practice of untouchability is

an offense and anyone doing so is punishable by law.

(v) Abolition of Titles:- Article 18 of the constitution prohibits the

State from conferring any titles. Citizens of India cannot accept

titles from a foreign State.

Article 14 of Constitution of India & Doctrine of Reasonable Classification

• Article 14 says that State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality before law as provided in the Article 14 of our constitution provides that no one is above the law of the land. Rule of the Law is an inference derived from Article 14 of the constitution. The article 14 aims to establish the "Equality of Status and Opportunity" as embodied in the Preamble of the Constitution.

• Thus, there is a necessity of the "reasonable classification" for the society to progress. The Supreme Court has maintained that Article 14 permits reasonable classification of persons, objects, transactions by the State for the purpose of achieving specific ends that help in the development of the society. However, Article 14 forbids "class legislation". Class legislation makes an improper discrimination by conferring particular privileges upon a class of persons.

• However, some argue that the extensive use of device of "reasonable classification" by State and its approval by the Supreme Court has rendered the guarantee of 'fair and equitable" treatment under Article 14 illusory. Here comes the role of "Test of reasonable classification". The Test of Reasonable Classification says that the classification must be based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group. This differentia must have a rational relation to the object of classification. There should be a relation between the differentiations to the object of the classification. If there are no such relations, the reasonable classification would fail.

• For example denial of grant to a private college teaching law while giving grant to other private colleges teaching other subjects is not permissible. However, reduction of age from 58 years to 55 years is permissible.

• However, Article 14 does not mean that all laws must be general in character or that the same laws should apply to all persons or that every law must have universal application. This is because all persons are not, by nature, attainment or circumstances in the same positions.

• Thus, the State can treat different persons in differently if circumstances justify such treatment. Further, the identical treatment in unequal circumstances would amount to inequality.

Right to freedom

Right to freedom

(i) Freedom of Speech and expression, which enable an individual

to participate in public activities. The phrase, "freedom of press"

has not been used in Article 19, but freedom of expression includes

freedom of press.

(ii) Freedom to assemble peacefully without arms, on which the

State can impose reasonable restrictions in the interest of public

order and the sovereignty and integrity of India.

(iii) Freedom to form associations or unions on which the State can

impose reasonable restrictions on this freedom in the interest of

public order, morality and the sovereignty and integrity of India.

Right to freedom

(iv) Freedom to move freely throughout the territory of India though

reasonable restrictions can be imposed on this right in the interest of

the general public, for example, restrictions may be imposed on

movement and travelling, so as to control epidemics.

(v) Freedom to reside and settle in any part of the territory of India

which is also subject to reasonable restrictions by the State in the

interest of the general public or for the protection of the schedule

tribes because certain safeguards as are envisaged here seem to be

justified to protect indigenous and tribal peoples from exploitation and

coercion.

Right to freedom

(vi) Freedom to practice any profession or to carry on any

occupation, trade or business on which the State may impose

reasonable restrictions in the interest of the general public. Thus,

there is no right to carry on a business which is dangerous or

immoral.

Thank You

References

• 1.https://lh5.ggpht.com/HLnLMmZqbfbQirTFZ3eQjqzDnvnSbXYOs3zoqHvKuhXL25APHW0nFkWo4zFQGqMNbvQ7=s153

• http://www.slideshare.net/

• Pandey , J.N. Constitutional Law of India -Allahabad: Central Law Agency, 2003