16th Apr 2021
Fundamental Rights
| Fundamental rights | Constitutional rights | Legal rights |
| Included in part 3 (magna carta of India) of constitution | Not in part 3 | Not in constitution |
| Can directly move supreme court for enforcement under article 32 | no | no |
| Parliament can abridge these rights only in very special circumstances | Can be abridged by constitutional amendment | By simple legal amendment |
| 6 Rights included in part 3 | No taxation with authority (278),Right to property (Art 300A), freedom to trade (art 301) | Right to employment under MGNREGA |
Amendability of Fundamental rights
| Article 13 | Laws inconsistent with part 3 (FRs) null and void |
| Shankari Prasad Case | Amendment under article 368 not law, can be amended |
| Golaknath case | Law, can not be amended |
| Kesavananda Bharati (24/04/73) | Not law, can be amended but basic structure can’t be amended |
| Minerva mills case | Basic structure can’t be amended to implement DPSP |
Special cases
| Fundamental rights not available to foreigners | Article 15, 16, 19, 29, 30 |
| Available against private citizens | Article 17 |
| Suspended automatically during an emergency on grounds of war or external aggression | Article 19 |
| Can’t be suspended even during emergency | Article 20,21 |
| Against exploitation | Article 23, 24 |
| Most fundamental of FRs/ Right to constitutional remedies | Article 32 |
Procedure Established by Law v/s Due Process
| Procedure Established | Due Process |
| British, Japanese | American constitution |
| Arbitrary Administrative actions | Arbitrary administrative as well as legislative |
| A. K. Gopalan case | Maneka Gandhi |
| Action according to procedure established by law | Law must also be just fair and reasonable |
Titbits:
- FRs are not absolute. Parliament can impose reasonable restrictions.
- Right to property (art 31) has been deleted from part 3 by 44th amendment and is now a constitutional right under art 300A
- Article 31B put acts include under 9th schedule (added by 1st CAA) outside judicial review
- But Matters added to 9th schedule after 24th April 1973 (Kesavananda Bharati Case) are not immune to judicial review (I.R. Coelho case)
DPSPs
| DPSP | FRs | |
| Taken from | Ireland | America |
| Part of constitution | Part 4 | Part 3 |
| Legal validity | Non-justiciable | Justiciable |
| Aim | Social and Economic Democracy (welfare state) | Political democracy
(limit state power) |
| Fundamental to governance of country (instrument of instructions under GOI act 1935) |
Titbits:
- DPSPs can be classified into socialist, Gandhian and liberal – intellectual categories
- 42nd, 44th, 86th and 97th amendment added new DPSPs
Fundamental duties: Learn by heart
Titbits:
- Right and duties are correlative yet the original constitution didn’t have FDs
- Part 4A, article 51A of the constitution by 42nd amendment
- 11th duty added by 86th amendment in 2002 (education of kids)
- Taken from USSR constitution based on Swaran Singh Committee report
- Applicable only to citizens not to foreigners
- Non-justiciable.
