PUJA HALDER
LL . B - A (SEMESTER - I)
CONSTITUTIONAL LAW OF INDIA - I
“WHO CAN CLAIM FUNDAMENTAL RIGHTS:
AGAINST WHOM FUNDAMENTAL RIGHTS
ARE AVAILABLE? SUSPENTION OF
FUNDAMENTAL RIGHTS”
TEACHER: DR. SMRITI RATURI SHARMA
CONTENTS
✓ Introduction _____________________________________________________________________________________ 1
✓ Importance of fundamental rights and landmark cases ___________________________________ 2-5
✓ Who can claim fundamental rights? Against whom fundamental rights are available ?6-10
✓ Resorting fundamental rights after suspension : procedures & challenges __________ 11-15
✓ Conclusion ______________________________________________________________________________________ 16
Introduction
The Constitution of India has very well been described as the “Magna Carta” of India. As early as
1215 the English people exacted an assurance from King John for respect of the then ancient
liberties. The Magna Carta is the evidence of their success which is a written document. This is
the first written document relating to the fundamental rights of citizens.
In France Declaration of Rights of Man and the Citizen (1789) declared the natural, inalienable
and sacred rights of Man.
Following the spirit of the “Magna Carta” of the British and the Declaration of the Rights of Man
and the Citizen of France, the Americans incorporated the Bill of Rights in their Constitution. The
Americans were first to give Bill of Rights a Constitutional status.
Thus, when the Constitution of India was being framed the background for the incorporation of
Bill of Rights was already present.
The aim of having a declaration of fundamental rights is that certain elementary rights, such as,
right to life, liberty, freedom of speech, freedom of faith and so on, should be regarded as
inviolable under all conditions and that the shifting majority in Legislature of the country should
not have a free hand in interfering with these fundamental rights.
In West Virginia State Board of Education v Barnet Jackson, J. explaining the nature and the
purpose of the Bill of Rights observed "The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied by the Courts.
List of fundamental rights: -
The following are the six fundamental rights of the Indian Constitution, as well as the
constitutional provisions that connect to them: -
➢ Right to Equality (Article 14-18).
➢ Right to Freedom (Article 19-22).
➢ Right against Exploitation (Article 23-24).
➢ Right to Freedom of Religion (Article 25-28).
➢ Cultural and Educational Rights (Article 29-30).
➢ Right to Constitutional Remedies (Article 32-35).
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The 44th amendment has abolished the right to property as a fundamental right as guaranteed by
article 19(1)(f) and article 31 of the constitution, and hence article 19(1)(f) and article 31 has
omitted.
Importance
Fundamental Rights were deemed essential to protect the rights and liberties of the people
against the encroachment of the power delegated by them to their government. They are
limitations upon all the powers of the Government, legislative as well as executive and they are
essential for the preservation of public and private rights, notwithstanding the representative
character of political instruments.
These rights are regarded as fundamental because they are most essential for the attainment by
the individual or his full intellectual, moral and spiritual status.
The negation of these rights will keep the moral and spiritual life stunted and his potentialities
undeveloped. The declaration of fundamental rights in the Constitution serves as reminder to the
Government in power that certain liberties, assured to the people by the Constitution are to be
respected.
The danger of encroachment on citizen's liberties is particularly great in parliamentary system in
which those who form the Government are leaders of the majority party in the Legislature and
can get laws made according to their wishes.
The advocates of inclusion of these rights in the Indian Constitution emphasis that their
incorporation in the Constitution vests them with a sanctity which the legislators dare not to
violate so easily.
‘A government of law and not of man’ a governmental system where the tyranny of majority does
not oppress the minority. In short, the object is to establish Rule of Law and it would not be
wrong to say that the Indian Constitution in this respect goes much ahead than any other
Constitutions of the world.
The object is not merely to provide security and equality of citizenship of the people living in this
land and thereby helping the process of nation building, but also and not Jess important to
provide certain standards of conduct, citizenship, justice and fair play.
They were intended to make all citizens and persons appreciate that the paramount law of the
land has swept away privileges and has laid down the paramount perfect equality between one
section of the community and another in the matter of all those rights which are essential for the
material and more perfection of man.
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Fundamental Rights play a crucial role in the functioning of a democratic society and in
upholding the dignity, freedom, and well-being of individuals. Their importance lies in several
important aspects: -
▪ Protection of individual liberties:
Fundamental Rights ensure that individuals have the freedom to express themselves, practice
their religion, assemble peacefully, and engage in various activities without fear of government
interference or oppression. These rights provide a shield against arbitrary actions by the state
and promote individual autonomy.
▪ Preservation of human dignity:
Fundamental Rights recognize the inherent dignity of every human being. They prohibit
practices that degrade or violate an individual's dignity, such as torture, inhuman treatment, and
discrimination. By upholding these rights, societies affirm the intrinsic value of each person.
▪ Rule of law:
Fundamental Rights are usually enshrined in a country's constitution or legal framework. This
establishes a framework of laws that apply equally to all citizens, including those in positions of
power. The rule of law ensures that even the government must operate within defined limits and
cannot infringe upon citizens' rights without due process.
▪ Democracy and political participation:
Fundamental Rights empower citizens to participate in the democratic process by providing
them with the right to vote, stand for office, and freely express their opinions. These rights
promote a diverse range of voices and perspectives, essential for informed decision-making and
accountable governance.
▪ Social justice:
Fundamental Rights often include provisions aimed at promoting social justice. They guarantee
access to education, healthcare, housing, and other basic needs, helping to reduce inequalities
and improve the overall well-being of citizens.
▪ Prevention of abuse of power:
Fundamental Rights serve as a check on government power. They restrict the state from
arbitrarily depriving citizens of their rights and prevent abuses of authority. Citizens can
challenge government actions that violate their rights through legal means.
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▪ Cultural and individual identity:
Fundamental Rights protect an individual's right to their cultural, linguistic, and educational
identity. This fosters cultural diversity and encourages the preservation of unique traditions and
languages.
▪ Conflict resolution:
By establishing clear legal frameworks for addressing disputes and grievances, Fundamental
Rights contribute to maintaining social harmony and preventing conflicts that might arise from
violations of individual rights.
▪ Promotion of tolerance and inclusion:
Fundamental Rights encourage tolerance and inclusivity by preventing discrimination and
ensuring that all individuals are treated fairly and equitably, regardless of their background,
beliefs, or characteristics.
▪ Global human rights standards:
Fundamental Rights align with international human rights standards, promoting a global
consensus on the principles that should govern the treatment of individuals and the
responsibilities of governments.
Landmark cases: -
o Kesavananda Bharati v. State of Kerala (1973):
This case is often referred to as the "Basic Structure Doctrine" case. The Supreme Court of India
held that while the Parliament has the power to amend the Constitution, it cannot alter its basic
structure, which includes democracy, rule of law, secularism, and the independence of the
judiciary.
o Maneka Gandhi v. Union of India (1978):
This case expanded the scope of Article 21 (Protection of Life and Personal Liberty) by
interpreting that the right to life is not just physical survival, but also includes the right to live
with dignity. The case emphasized the importance of fair procedure and natural justice before
depriving someone of their personal liberty.
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o ADM Jabalpur v. Shivkant Shukla (1976):
Also known as the “Habeas Corpus case” during the Emergency, this case challenged the
suspension of the right to move to the court for the enforcement of the right to personal liberty
under Article 21. The Supreme Court ruled that during the Emergency, citizens cannot approach
the court for the enforcement of their rights, a decision that was widely criticized and later
overruled.
o S.R. Bommai v. Union of India (1994):
This case dealt with the misuse of Article 356 (President's Rule) by central governments to
dismiss state governments. The Supreme Court established that the power under Article 356 is
subject to judicial review and can only be exercised in exceptional circumstances.
o Indira Gandhi v. Raj Narain (1975):
In this case, the Supreme Court invalidated the election of then-Prime Minister Indira Gandhi due
to electoral malpractice. The case upheld the principle that no one, including the Prime Minister,
is above the law.
o Vishakha v. State of Rajasthan (1997):
This case played a pivotal role in recognizing and addressing sexual harassment in the
workplace. The Supreme Court formulated guidelines to prevent and redress sexual harassment,
laying the foundation for a safe working environment for women.
o Puttaswamy (Privacy) v. Union of India (2017):
Often referred to as the “Right to Privacy” case, this landmark judgment declared that the right to
privacy is a fundamental right guaranteed under Article 21 and other related articles. This case
significantly expanded the interpretation of Article 21.
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Who can claim fundamental rights: Against whom
fundamental rights are available?
The Fundamental Rights (FR) are named so because they are guaranteed and protected by the
Indian Constitution (Article 12 to 35). These rights are ‘fundamental’ for the all-round
development of individuals.
• Fundamental Rights limits the power of the State
Fundamental Rights uphold the dignity of the individual. Fundamental Rights protects the
freedom of the people against the invasion by the state.
If any of your Fundamental Rights are violated, you can directly approach the Supreme Court of
India. Thus, these rights limit the tyranny of the executive (government) or abuse of power by
the legislature.
• Fundamental Rights: Citizen vs non-Citizen
India was a signatory to the Universal Declaration of Human Rights; therefore, great precaution
was taken so that Fundamental Rights mentioned in Part 3 of Indian Constitution is concurrent
with the provisions of the UN Declaration of Human Rights.
While most Fundamental Rights are available for citizens and foreigners alike (E.g.: Article 21),
certain rights are exclusive only for Indian Citizens (E.g.: Article 19).
• Fundamental rights available to both citizens and foreigners except enemy
aliens
i. Article 14 – Equality before the law and equal protection of laws.
ii. Article 20 – Protection in respect of conviction for offences.
iii. Article 21 – Protection of life and personal liberty.
iv. Article 21A – Right to elementary education.
v. Article 22 – Protection against arrest and detention in certain cases.
vi. Article 23 – Prohibition of traffic in human beings and forced labour.
vii. Article 24 – Prohibition of employment of children in factories etc.
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viii. Article 25 – Freedom of conscience and free profession, practice and propagation of
religion.
ix. Article 26 – Freedom to manage religious affairs.
x. Article 27 – Freedom from payment of taxes for promotion of any religion.
xi. Article 28 – Freedom from attending religious instruction or worship in certain
educational institutions.
• Fundamental Rights Available Only to Citizens of India
i. Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth.
ii. Article 16 – Equality of opportunity in matters of public employment.
iii. Article 19 – Protection of six rights related to freedom –
(a) of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) to practice any profession, or to carry on any occupation, trade or business.
iv. Article 29 – Protection of language, script and culture of minorities.
v. Article 30 – Right of minorities to establish and administer educational institutions.
• Regarding Citizenship of India
i. The conditions for Indian Citizenship at the commencement of the Indian Constitution is
provided directly in the Constitution of India itself – Article 5 to 11.
ii. The Citizenship Act of 1955 provides for the acquisition or loss of citizenship after the
commencement of the Indian Constitution (i.e. after 26th January 1950.
iii. The Citizenship Act has been amended multiple times, the latest amendment being the
controversial Citizenship Amendment Act 2019.
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• Fundamental rights available against State and not against private
individuals.
Individual needs constitutional protection against the State. The rights which are given to the
citizens by way of fundamental rights as included in Part III of the Constitution are a guarantee
against State action as distinguished form violation of such rights, from private parties.
In P.D. Shamdasam v. Central Bank of India, the petitioner, in an application under Article 32 of
the Constitution, sought the protection of the Court on the ground that his property right under
Articles 19 (1)(f) and 31 were infringed by the action of another private person the Central Bank
of India.
The Supreme Court dismissed the petition and held: "Neither Article 19(1) nor Article 31 (1) was
intended to prevent wrongful individual's acts or to provide protection against merely private
conduct.
The language and structure of Article 19 and its setting in Part III of the Constitution clearly show
that the Article was intended to protect those freedoms against the State action other than in the
legitimate exercise of its power to regulate private rights of property by individuals is not within
the purview of the Articles"
• Definition of State (Article 12)-
Article 12 defines the term 'State' as used in different Articles of Part III of the Constitution. It
says that unless the context otherwise requires the term 'State' includes the following: -
1. The Government and Parliament of India, i.e., Executive and Legislature of the Union.
2. The Government and the Legislature of each State, i.e. Executive and Legislature of States.
3. All local or other authorities within the territory of India.
4. All local and other authorities under the control of the Government of India.
The term 'State' thus includes executive as well as the legislative organs of the union and States.
It is, therefore, the actions of these bodies that can be challenged before the courts as violating
fundamental rights.
a. Authorities -
According to Webster's Dictionary: "Authority" means a person body exercising power to
command. In the context of Article 12. the word "authority" means the power to make laws,
orders, regulations, bye-laws, notification etc. which have force of law and power to enforce
those laws.
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b. Local authorities –
‘Local authorities’ as defined in Section 3 (31) of the General Clauses Act refers to authorities like
Municipalities, District Boards, panchayats, improvement Trust and Mining Settlement Boards.
c. Other authorities (Restricted Interpretation)-
In Article 12 the expression other authorities' is used after mentioning a few of them, such as, the
Government, Parliament of India, the Government and Legislature of each of the States and all
local authorities.
In University of Madras v. Santa Bai, the Madras High Court held that other authorities could only
indicate authorities of a like nature, i.e. ejusdem generis. So construed, it could only mean
authorities exercising governmental or sovereign functions. could not include persons, natural or
juristic, such as, a university unless 'maintained by the State’.
d. Authorities under the control of the Government of India-
By words 'authorities under control of the Government of India', it is meant to bring into the
definition of State all areas outside Indian territory but which are under or may come under the
control of the Government of India, such as, mandatory or trustee territories. Such a territory
may come under India's control by international agreement. Thus, even such areas will be the
subject to Part III and the inhabitants of such areas may also claim the benefit of Fundamental
Rights guaranteed in Part III.
• Unaided minority School-
Unaided minority schools over which the Government has no administrative control due to their
authority under Article 30 (1) the Constitution are not "State" within the meaning of Article 12 of
the Constitution.
The right to equality which is available against the State cannot be claimed again unaided
minority schools and in the absence of any statutory provision or administrative instruction
requiring private unaided schools to pay their teachers the same salary and allowances as are
being paid to the teachers of private recognized aided schools as being paid in the government
institutions, unaided minority institutions are under no obligation to pay equal pay for equal
work to their teachers.
• Private University-
S.R.M. University Madras, declared "Deemed University “by the Central Government under
Section 3 of the UGC Act, the Management of which was in the private trust was held to be an
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authority provided under Article 12 of the Constitution and amenable to the writ jurisdiction
because: -
i. it imparted education in higher studies to the students at large.
ii. it discharged public functions by way of imparting education.
iii. it was notified as a deemed university under Section 3 of the UGC Act,
iv. being a deemed university by the Central Government under Section 3 of UGC Act, all the
provisions of the UGC Act were made applicable to it which, inter alia, provided for
effective discharge of public function, namely education for benefit of public.
v. Once it was declared as "deemed university" whose all functions and activities were
governed by the UGC Act, like other universities, it was "other authority" within the
meaning of Article 12 of the Constitution.
vi. Once it was held to be an authority as provided in Article 12 then as a necessary
consequence, it was amenable to writ jurisdiction of high court under article 226 of the
constitution.
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Resorting fundamental rights after suspension: procedures
& challenges
Article 358 provides that when the proclamation of emergency is made by the President under
Article 352 the freedoms guaranteed by Article 19 are automatically suspended and would
continue to be so for the period of emergency.
The suspension of rights guaranteed by Article 19 thus removes restriction on the Legislative and
Executive powers of the State imposed by the Constitution. Any law, executive order made by the
State during this period cannot be challenged on the ground that they are inconsistent with the
rights guaranteed by Article 19.
Such laws shall, however, cease to have effect 15 soon as the proclamation ceases and then
Article 19 is automatically revived and begins to operate. Article 358, however, makes it clear
that things done or omitted to be done during the emergency cannot be challenged even after the
emergency is over.
Article 359 further empowers the President to suspend the right to move any court for the
enforcement of rights conferred by Part II of the Constitution (except Articles 20 and 21) during
the continuance of emergency.
The suspension of the right to move the courts for the enforcement of the fundamental rights can
be done by an order of the President. He may mention in his order the rights whose enforcement
is to be suspended.
The order of the President may extend to the whole or any part of the territory of India. It is to be
noted that while under Article 358 of the rights conferred by Article 19 are automatically
suspended, the suspension under Article 359 can only be brought about by an order
of the President.
• Meaning of National Emergency in India: -
In India, a National Emergency (Article 352) refers to a period when the security of the nation is
severely threatened.
It is a period when the constitutional rights and freedoms of individuals may be curtailed, and the
powers of the central government are significantly enhanced to address perceived threats to the
nation.
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The expression ‘Proclamation of Emergency’ is used in the Indian Constitution to denote the
National Emergency. A National Emergency empowers the Central government to take swift and
decisive action to safeguard the security, integrity, and sovereignty of the country.
• Constitutional Provisions Related to National Emergency: -
Article 352 to Article 354 in Part XVIII of the Indian Constitution deal with the National
Emergency. These articles and their subject matters can be seen in the table below.
• Grounds of Declaration of National Emergency: -
The President can declare a National Emergency in India under Article 352 when the security of
India or a part of it is threatened by: -
i. war,
ii. external aggression, or
iii. armed rebellion.
Originally, the Constitution mentioned ‘Internal Disturbance ‘as the third ground for the
proclamation of a National Emergency.
However, because of the vagueness and ambiguity of the phrase ‘Internal Disturbance’, it was
replaced by the phrase ‘Armed Rebellion’ by the 44th Constitutional Amendment Act of 1978.
The President can declare a National Emergency even before the actual occurrence of war or
external aggression or armed rebellion if he is satisfied that there is an imminent danger to the
country.
The President can also issue different proclamations, whether or not there is a proclamation
already issued by him and such proclamation is in operation.
This provision was added by the 38th Constitutional Amendment Act of 1975.
Based on the grounds of the declaration, the National Emergency is called by any one of the
following 2 names:
• External Emergency –
It refers to a National Emergency that is declared on the grounds of War or External Aggression.
• Internal Emergency –
It refers to a National Emergency that is declared on the grounds of Armed Rebellion.
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• Applicability of National Emergency-
A proclamation of National Emergency may apply to the entire country or only a part of it. The
42nd Constitutional Amendment Act of 1976 enabled the President to limit the operation of a
National Emergency to a specified part of India.
• Judicial Review of Proclamation of National Emergency-
The position regarding the possibility of judicial review of the proclamation of National
Emergency has evolved over a period of time. The same can be seen as follows: -
1. 38th Constitutional Amendment Act of 1975 –
The 38th Constitutional Amendment Act, 1975 made the declaration of a National Emergency
immune from judicial review.
2. 44th Constitutional Amendment Act of 1978 –
The 44th Constitutional Amendment Act, 1978 deleted the above provision of 38th
Constitutional Amendment Act, 1975. Thus, it reversed the position and restored the ability of
the judiciary to review the decision of the declaration of a National Emergency.
3. Minerva Mills Case of 1980 –
In Minerva Mills Case, 1980, the Supreme Court held that the proclamation of National
Emergency can be challenged in a court on grounds of malafide or when the declaration was
based on extraneous or irrelevant facts.
4. Parliamentary Approval of National Emergency –
The proclamation of a National Emergency must be approved by both Houses of Parliament
within one month from the date of its issue.
Originally, the period allowed for approval of a National Emergency by the Parliament was two
months.
It was reduced to one month by the 44th Constitutional Amendment Act of 1978.
If the proclamation of National Emergency is issued at a time when the Lok Sabha had been
dissolved or the dissolution of Lok Sabha takes place during one month without approving the
proclamation, then the proclamation survives until 30 days from the first sitting of new
constituted Lok Sabha, provided the Rajya Sabha has in the meantime approved it.
• Duration of National Emergency –
If approved by both Houses of Parliament, the National Emergency continues for six months. It
can be extended to an indefinite period with the approval of Parliament every six months.
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This provision of periodic approval (every six months) was added by the 44th Constitutional
Amendment Act of 1978.
Prior to this amendment, National Emergency, once approved by the Parliament, could remain in
operation as along as the Executive desired.
If the dissolution of the Lok Sabha takes place during the period of six months without approving
the further continuation of the emergency, then the proclamation survives until 30 days from the
first sitting of the newly constituted Lok Sabha, provided the Rajya Sabha in the meantime
approves its continuation.
• Revocation of Proclamation of National Emergency-
A Proclamation of Emergency can be revoked by the President at any time by a subsequent
proclamation. Such a proclamation does not require parliamentary approval.
The 44th Constitutional Amendment Act of 1978 mandated that the President must revoke a
proclamation of National Emergency if the Lok Sabha passes a resolution disapproving its
continuation.
Prior to that, a proclamation could be revoked by the President on his own and Lok Sabha had no
control in this regard.
The 44th Constitutional Amendment Act of 1978 also provided that if 1/10th of the total
members of Lok Sabha give written notice to the Speaker or to the President (if the House is not
in session), a special sitting of the House should be held to consider a resolution disapproving the
continuation of the proclamation of National Emergency.
• Effects of National Emergency on Center-State Relations-
During the operation of a National Emergency, the normal dynamics of the Center–State relations
undergoes some changes. These changes can be studied under the following three heads: -
• Executive –
In normal times, the Center can give executive directions to a State only on certain specified
matters. However, during a National Emergency, the Center becomes entitled to give executive
directions to a State on any matter.
Thus, the State governments are brought under the complete control of the Center, though they
are not suspended.
The 42nd Amendment Act of 1976 provided that the above consequence applies not only to a
state where the National Emergency is in operation but also to any other state.
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• Legislature –
During a National Emergency, the normal distribution of the legislative powers between the
Centre and States is suspended, though the State Legislatures are not suspended.
• Financial –
During a National Emergency, the President can modify the constitutional distribution of
revenues between the Center and the States.
This means that the President can either reduce or cancel the transfer of finances from the Center
to the States. Such modification continues till the end of the financial year in which the
Emergency ceases to operate.
Every order of the President which seeks to make such modifications has to be laid before both
the Houses of Parliament.
• Effects of National Emergency on Life of Lok Sabha and State Assembly –
During a National Emergency in India, the life of Lok Sabha may be extended beyond its normal
term of 5 years by a law of Parliament for one year at a time, for any length of time. This
extension cannot continue beyond a period of six months after the emergency has ceased to
operate.
Similarly, the Parliament may extend the normal tenure of a State Legislative Assembly by one
year at a time, for any length of time. This extension cannot continue beyond a period of six
months after the emergency has ceased to operate.
• Effects of National Emergency on Fundamental Rights -
During a National Emergency in India, some of the Fundamental Rights get suspended. There are
two constitutional provisions (Article 358 and Article 359) regarding the same.
▪ Article 358 – Suspension of Fundamental Rights under Article 19
➢ As per Article 358, when a proclamation of National Emergency is made, the six
Fundamental Rights under Article 19 (Right to Freedom) are automatically suspended.
No separate order for their suspension is required.
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CONCLUSION
In India, fundamental rights are available to all people, including citizens, foreigners, and legal
entities like corporations. These rights can be claimed against the state and its instrumentalities,
but not against private individuals. However, the Supreme Court has ruled that some
fundamental rights, like freedom of speech and the right to life and personal liberty, can be
enforced against private individuals.
Fundamental rights can be suspended during a national emergency by the President, except for
those guaranteed under Articles 20 and 21. The President can suspend fundamental rights due to
war, external aggression, armed rebellion, and financial crisis. The state government can suspend
fundamental rights during war or external aggression.
The Supreme Court and High Courts can issue writs to enforce fundamental rights.
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