Monday, 27 August 2012

Fundamental Rights

  • Part III of the constitution of Indian contains the fundamental rights.
  • The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity.
  • These fundamental rights help not only in protection but also the prevention of gross violations of human rights.
Article 12 Says "State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Under Article 13 power of judicial review is given to judiciary to prevent the encroachment of legislature on fundamental rights. It is adopted  from the Constitution of the United States of America .

Art. 13(1) Doctrine of Eclipse - All pre-constitutional laws, if in part or completely in conflict with the Constitution shall have all conflicting provisions deemed ineffective until an amendment to the Constitution ends the conflict.

Art. 13(2) provides, that State shall not make any law which can take away or abridges the fundamental rights, and any law made in contravention of fundamental rights shall to the extent of contravention can be declared null and  void by judiciary.
  • Fundamental rights are justiciable, i.e., any violation of these rights can be questioned in a court of law.
  •  Fundamental Rights are not absolute, and state can impose reasonable restrictions on their exercise. However, Rights under Art. 17 and Art.24 are absolute rights.
Rights against private individuals are mentioned under Articles 15(Right against discrimination), 17(Right against untouchability), and Right against Exploitation under Article 23 & 24.

Rights available to citizens of India only are under Articles 15, 16, 19, 30. 

Rights available to persons of any nationality upon Indian soil are under Articles 14, 20, 21, 25.

 In the Kesavananda Bharati v. State of Kerala case in 1973, the Supreme Court held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure of the Constitution.

Rights during emergency - President under Art. 359 can suspend Fundamental Rights, excluding Articles 20 and 21(44th Amendment). He suspend the right to constitutional remedies , thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency.

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