HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

TRIMESTER: IV TRIMESTER
SESSION: 2019-2020
SUBJECT:
CONSTITUTIONAL LAW- II

A PROJECT REPORT ON

“Historical Background and Evolution of Fundamental Rights in India”

SUBMITTED TO: SUBMITTED BY:

PROF. Ms. Kuldeep Kaur Somya Yadav

Barrister-at-law from Lincoln’s Inn ROLL NO. - 2018BALLB37

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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

ACKNOWLEDGEMENT

My Vocabulary falls short on words to express my heartily gratitude towards my

Constitutional law professor Ms. Kuldeep Kaur who gave me such a wonderful project to
work upon which made me know more about Fundamental Rights and its history and
evolution.

Also I would like to thank the Prestigious Library of NLIU with the material of which I was
able to supplement this Project.

I would like to take out this moment lastly but certainly not the least to thank my parents and
the almighty under whose blessings I concluded this Project. I acknowledge the support of all
the aforesaid.

Thank You

SOMYA YADAV

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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

Statement of Problem

How has the role of judiciary evolved with respect to fundamental rights?

Hypothesis

That the judiciary has got empowered with the passage of time.

Objectives

· To analyze the history of Fundamental Rights.

· To understand the evolution of Fundamental Rights.

· To understand the role of judiciary with respect to Fundamental Rights.

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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

Introduction

Sixty eight years ago the constitution of India was framed. It all started from December 9 th
1946 when in the constituent assembly convened to embark on the endeavour of framing of
the Indian constitution that was acceptable to all sections of free India. The Constituent
Assembly drafted the Constitution over a course of three years. What emerged after thirty-six
months of protracted and animated deliberations was the longest constitution ever drafted in
the world.
The framers of this constitution etched to this constitution an impressive array of
Fundamental Rights. The framers also vested the Supreme Court with the power to declare
the law and quash as unconstitutional any law or order that transgresses any fundamental
right, a power otherwise known as “Judicial Review”.
This Project deals with the history and evolution of fundamental rights in India with special
reference to the judiciary.

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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

FUNDAMENTAL RIGHTS

India is credited with having one of the finest democratic constitutions in the world. Even
though the Indian Constitution has undergone many amendments and has been subjected to a
lot of criticism, it has stood the test of time and has emerged as the beacon of hope, ensuring
liberty, equality and justice to the citizens. The Indian Constitution grants the citizens of India
some rights that guarantee civil liberty to its citizens so that they can lead their lives in peace
and harmony. These rights are meant to protect the dignity of an individual and create
conditions in which every human being can develop his personality to the fullest extent. 1
These rights have been provided in the Part III of the Indian Constitution and comprise of
Articles 12 to 35.

The Indian Constitution, being a codified one, gives all the fundamental rights in the
constitution itself but the articles so provided in the constitution are skeleton articles and
hence are interpreted differently by the courts in different matters. The fundamental rights are
not a gift by the constitution whereas an individual possesses basic human right
independently of any constitution by reason of basic fact that they are members of human
race.2

Fundamental rights are those rights which are essential for intellectual, moral and spiritual
development of individuals. As these rights are fundamental or essential for existence and all-
round development of individuals, hence called as 'Fundamental' rights. These are enshrined
in Part III (Articles 12 to 35) of the Constitution of India. These include individual rights
common to most liberal democracies, such as equality before the law, freedom of
speech and expression, religious and cultural freedom, peaceful assembly, freedom to
practice religion, and the right to constitutional remedies for the protection of civil rights by
means of writs such as Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo
Warranto.

Fundamental rights apply universally to all citizens, irrespective of race, birthplace,

religion, caste or gender. The Indian Penal Code (I.P.C.) and other laws prescribe
punishments for the violation of these rights, subject to the discretion of the judiciary.
Though the rights conferred by the constitution other than fundamental rights are also valid
rights protected by the judiciary, in case of fundamental rights violations, the Supreme Court
of India can be approached directly for ultimate justice as per Article 32. The Rights have
their origins in many sources, including England's Bill of Rights, the United States Bill of
Rights and France's Declaration of the Rights of Man. There are six fundamental rights
recognised by the Indian constitution:

1. Right to equality(Articles. 14-18)

2. Right to freedom (Articles. 19-22)

1
Kaur K.; Constitutional Law Part II; NLIU Press; Page 71
2
M Nagraj v. Union of India AIR 2007 SC 71
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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

3. Right against exploitation (Articles. 23-24)

4. Right to freedom of religion (Articles. 25-28)

5. Cultural and Educational Rights (Articles. 29-30), and

6. Right to constitutional remedies (Articles. 32-35)

1. The right to equality includes equality before the law, the prohibition of discrimination on
grounds of religion, race, caste, gender or place of birth, equality of opportunity in matters of
employment, the abolition of untouchability and abolition of titles.

2. The right to freedom includes freedom of speech and expression, assembly, association or

union or cooperatives, movement, residence, and right to practice any profession or
occupation.

3. The right against exploitation prohibits all forms of forced labour, child labour and
trafficking of human beings.

4. The right to freedom of religion includes freedom of conscience and free profession,
practice, and propagation of religion, freedom to manage religious affairs, freedom from
certain taxes and freedom from religious instructions in certain educational institutes.

5. Cultural and educational rights preserve the right of any section of citizens to conserve
their culture, language or script, and right of minorities to establish and administer
educational institutions of their choice.

6. The right to constitutional remedies is present for enforcement of fundamental rights. The
right to privacy is an intrinsic part of Article 21 (the Right to Freedom) that protects the life
and liberty of the citizens.

Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-
independence social practices. Specifically, they have also been used to abolish
untouchability and thus prohibit discrimination on the grounds of religion, race, caste, sex, or
place of birth. They also forbid trafficking of human beings and forced labour (a crime). They
also protect cultural and educational rights of religious and linguistic minorities by allowing
them to preserve their languages and also establish and administer their own education
institutions. They are covered in Part III (Articles 12 to 35) of the Indian constitution.

Some features of the Indian Constitution:

1. It provides safeguard if any political leader misuses his power.

2. It also provides safeguard against discrimination.

3. It says "all people are equal before the law."

4. It provides fundamental rights

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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

History of Fundamental Rights

The development of Fundamental Rights in India was inspired by historical examples such as
England's Bill of Rights (1689), the United States Bill of Rights (approved on 17 September
1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man
(created during the revolution of 1789, and ratified on 26 August 1789).

There was a series of events which lead to the idea of Fundamental Rights in the minds of the
framers of the constitution. In 1919, the Rowlatt Act gave extensive powers to the British
government and police, and allowed indefinite arrest and detention of individuals, warrant-
less searches and seizures, restrictions on public gatherings, and intensive censorship of
media and publications. The public opposition to this act eventually led to mass campaigns of
non-violent civil disobedience throughout the country demanding guaranteed civil freedoms,
and limitations on government power. Indians, who were seeking independence and their
own government, were particularly influenced by the independence of Ireland and the
development of the Irish constitution.

Then in 1928, the Nehru Commission composing of representatives of Indian political parties
proposed constitutional reforms for India that apart from calling for dominion status for India
and elections under universal suffrage, would guarantee rights deemed fundamental,
representation for religious and ethnic minorities, and limit the powers of the government. In
1931, the Indian National Congress (the largest Indian political party of the time) adopted
resolutions committing itself to the defence of fundamental civil rights, as well as socio-
economic rights such as the minimum wage and the abolition of untouchability and serfdom.

Later the task of developing a constitution for the Constituent Assembly of India, composing
of, undertook the nation elected representatives. Constituent Assembly first met on December
9, 1946 under the presidency of Dr. Sachchidananda Sinha later Dr. Rajendra Prasad was
made its President. While members of Congress composed of a large majority, Congress
leaders appointed persons from diverse political backgrounds for responsibilities of
developing the constitution and national laws. Bhimrao Ramji Ambedkar became the
chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel
became chairpersons of committees and sub-committees responsible for different subjects. A
notable development during that period having significant effect on the Indian constitution
took place on 10 December 1948 when the United Nations General Assembly adopted the
Universal Declaration of Human Rights and called upon all member states to adopt these
rights in their respective constitutions.3

3
http://googleweblight.com/?lite_url=http://law.blogspot.com/2013/04/fundamental-
rights-vis-vis-fundamental.html?m%3D1&ei=F566dxom&lc=en-
last visited on 22-07-15 at 21:01:51
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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

The fundamental rights were included in the First Draft Constitution (February 1948), the
Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26
November 1949) prepared by the Drafting Committee.4

Then the fundamental rights were incorporated in the Constitution of India and till now have
been amended and had been subjected to criticism as well.

4
History and politics; NCERT
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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

Significance and characteristics

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. The writers of the constitution regarded democracy of no avail if civil liberties, like
freedom of speech and religion were not recognised and protected by the State. [4] According
to them, democracy is, in essence, a government by opinion and therefore, the means of
formulating public opinion should be secured to the people of a democratic nation. For this
purpose, the constitution guaranteed to all the citizens of India the freedom of speech and
expression and various other freedoms in the form of the fundamental rights.5
All people, irrespective of race, religion, caste or sex, have been given the right to petition
directly the Supreme Court or the High Courts for the enforcement of their fundamental
rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty-stricken
people may not have the means to do so and therefore, in the public interest, anyone can
commence litigation in the court on their behalf. This is known as "public interest
litigation".6 In some cases, High Court judges have acted suo moto on their own on the basis
of newspaper reports.
These fundamental rights help not only in protection but also the prevention of gross
violations of human rights. They emphasise on the fundamental unity of India by
guaranteeing to all citizens the access and use of the same facilities, irrespective of
background. Some fundamental rights apply for persons of any nationality whereas others are
available only to the citizens of India. The right to life and personal liberty is available to all
people and so is the right to freedom of religion. On the other hand, freedoms of speech and
expression and freedom to reside and settle in any part of the country are reserved to citizens
alone, including non-resident Indian citizens.7 The right to equality in matters of public
employment cannot be conferred to overseas citizens of India.8
Fundamental rights primarily protect individuals from any arbitrary state actions, but some
rights are enforceable against individuals.9 For instance, the Constitution abolishes
untouchability and also prohibits begar. These provisions act as a check both on state action
as well as the action of private individuals. However, these rights are not absolute or
uncontrolled and are subject to reasonable restrictions as necessary for the protection of
general welfare. They can also be selectively curtailed. The Supreme Court has ruled 10 that all
provisions of the Constitution, including fundamental rights can be amended. However,
5
Laski, Harold Joseph (1930). Liberty in the Modern State. New York and London: Harpers
and Brothers
6
"Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69". www.worldlii.org, World
Legal Information Institute. Retrieved 25 May 2006. This was the case where Public interest
litigation was introduced (date of ruling 15 December 1995).
7
Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-25
8
"Citizenship (Amendment) Bill, 2003" (PDF). rajyasabha.nic.in/, Rajya Sabha. p. 5.
9
Supra note 6
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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

the Parliament cannot alter the basic structure of the constitution. Since the fundamental
rights can be altered only by a constitutional amendment, their inclusion is a check not only
on the executive branch but also on the Parliament and state legislatures.11
A state of national emergency has an adverse effect on these rights. Under such a state, the
rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain
suspended. Hence, in such a situation, the legislature may make laws that go against the
rights given in Article 19. The President may by order suspend the right to move the court for
the enforcement of other rights as well.

Reasons for criticism of Fundamental Rights enshrined

in the Constitution of India.

The fundamental Rights enshrined in the Constitution of India have been subjected to
criticism of various political leaders and thinkers on several grounds. Some of those grounds
include:

1. Political groups have demanded that the right to work, the right to economic
assistance in case of unemployment, old age, and similar rights be enshrined as
constitutional guarantees to address issues of poverty and economic insecurity, though
these provisions have been enshrined in the Directive Principles of state policy.

2. The right to freedom and personal liberty has a number of limiting clauses, and thus
have been criticised for failing to check the sanctioning of powers often deemed
"excessive".

3. There is also the provision of preventive detention and suspension of fundamental

rights in times of Emergency. The provisions of acts like the Maintenance of Internal
Security Act (MISA) and the National Security Act (NSA) are a means of countering
the fundamental rights, because they sanction excessive powers with the aim of
fighting internal and cross-border terrorism and political violence, without safeguards
for civil rights.

4. The meaning of phrases like "reasonable restrictions" and "the interest of public
order" have not been explicitly stated in the constitution, and this ambiguity leads to
unnecessary litigation.

5. "Freedom of press" has not been included in the right to freedom, which is necessary
for formulating public opinion and to make freedom of expression more legitimate.

10
Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461, (1973) 4 SCC 225 – In
what became famously known as the "Fundamental Rights case", the Supreme Court decided
that the basic structure of the Constitution of India was unamendable.
11
Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-24
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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

6. Employment of child labour in hazardous job environments has been reduced, but
their employment even in non-hazardous jobs, including their prevalent employment
as domestic help violates the spirit and ideals of the constitution.

Aforesaid are “some” of the grounds under which the Fundamental Rights have to face
criticism.

Violation of Fundamental Rights

In the case of infringement of the Fundamental Rights in Part III of the constitution special
remedy has been provided. Articles 32 to 35 deal with right to Constitutional remedies in the
case of violation or infringement of fundamental rights guaranteed in Part III of the
constitution.

Thus, the judiciary comes into picture when there is an infringement or violation of
fundamental rights. Such a situation occurs when there is some law made which is
inconsistent with or in derogation of the fundamental rights; or someone has been denied of
his fundamental right. Herein, right to move to the court under Article 32 is also a
fundamental right.

Article 32

The title of this article says “remedies for enforcement of fundamental rights conferred by
this part12”. It describes the different types of writs i.e. habeas corpus, mandamus, certiorari,
prohibition and quo warranto. Unlike other fundamental rights it is remedial and not
substantive in nature. This article was called the “heart and soul” of the Indian Constitution
by Dr. B.R. Ambedkar. The Supreme Court is made the protector and guarantor of
the Fundamental Rights. It is not obligatory for the court to follow adversary system on cases
related to this Article and 'appropriate proceedings' are sufficient. The remedy sought must be
correlated to one of the fundamental rights sought to be enforced. As far as Locus Standi is
concerned this right could be availed by those whose fundamental rights are infringed. This
was later relaxed to allow Public Interest Litigation cases thus allowing any 'public spirited
citizen' to file the case.

This remedy is most sought by the people. Sometimes new laws are also made with respect to
the cases filed under this article. There is a special relationship between Clause (1) of
Article 32 and Sub-clause (a) of Clause (1) of Article 19, which guarantees citizens the
freedom of speech and expression. The very genesis, and the normative desirability of such a
freedom, lies in historical experiences of the entire humanity: unless accountable, the State
would turn tyrannical. A proceeding under Clause (1) of Article 32, and invocation of the
powers granted by Clause (2) of Article 32, is a primordial constitutional feature of ensuring

12
The Constitution of India; Bare Act; All India Reporter
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 HISTORY AND EVOLUTION OF FUNDAMENTAL RIGHTS

such accountability. The very promise, and existence, of a constitutional democracy rests
substantially on such proceedings.13 

It has also been held that, Court may award compensation under Articles 32 and 226 in cases
where violation of Article 21 involving custodial death / torture is established or is
incontrovertible. Award of such compensation will not affect the right to claim additional
compensation by way of civil or criminal action.14

Evolution of Fundamental Rights in Judiciary

Though the judiciary was given powers under the constitution of India by way of Judicial
Review but the Supreme Court also encountered some problems. During the first year of the
inception of article 32, the Court levelled a deathblow to personal liberty, ignoring the
procedural protections contemplated by and crystallized in the Constitution through judicial
review. Adopting an uncomfortably restricted view of "personal liberty," the Court ruled that
a procedure duly enacted by the legislature was sufficient to deprive a citizen of his liberty.
Significantly, the procedure did not have to conform to the principles of natural justice, and it
did not have to fulfil the tests of other fundamental rights.
Despite the Court's prior attempts to place a check on Parliament's unbridled power, the
opening two and a half decades of the Republic were the worst periods for constitutional
development in India. Indeed, neither of the two important institutions of governance-the
Parliament and the Judiciary-made any enduring contributions toward strengthening
constitutionalism in the country.
Then came the time when Indira Gandhi imposed emergency in the nation and it was in a
way the second freedom of struggle. The only judge (Mr. H.R. Khanna) who gave a
descending opinion had to face consequences which were not favourable for him.
The Supreme Court gloriously expanded the right to life and personal liberty to include the
right to travel abroad in Maneka Gandhi v. Union of India-its historic post-Emergency
decision. The Court articulated that Part III of the Constitution was designed to create
conditions in which every human could develop his personality to the fullest extent.
Additionally, in Rudul Shah v. State of Bihar, a trailblazing decision in 1983, the Supreme
Court recognized and punished the lawless behaviour of state officials. In Rudul Shah, the
Court awarded compensation to the petitioner for the loss of his limbs during his traumatic
police custody. In 1993 the Court reiterated that the right to receive compensation for the
unlawful deprivation of Article 21 was a fundamental right of every citizen.
Similar cases made the judiciary capable of being free from the state intervention and
reviewing the matters. The Procedural due process, which was crystallized in the Constitution
and received a deathblow in A.K. Gopalan case, was finally resurrected twenty-eight years
after the commencement of the Constitution. In Olga Tellis v. Bombay Municipal
Corporation, the court gave a new dimension to Article 21 by halting all the evictions and
13
Ram Jethmalani and ors. V. UOI and ors. (2011)8SCC1
14
Sube Singh vs. State of Haryana (2006)3SCC178
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demolitions on the pavements for four years as the petitioner said that the pavement served as
the home as well as workplace to the dwellers.
Further the case of Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh
ushered in this trend. In this case, the Court ordered the closure of certain limestone quarries
in the Himalayan range of Mussoorie Hill on the grounds that their operations were upsetting
India's ecological balance and harming the environment. Although the Court did not
explicitly refer to Article 21 in its judgment, it is clear that the Court entertained the
environmental complaints under Article 32-guided by Article 48A, the aforementioned Part
IV Directive Principle as involving a violation of Article 21’s right to life.
Aforesaid were some of the landmark cases through which Article 32 was used.
Fundamental rights related to judiciary, hence, had two phases i.e. pre-emergency and post-
emergency. The major development and strengthening of judiciary took place after the
emergency.

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Critical analysis

The fundamental rights have been revised for many reasons. Political groups have demanded
that the right to work, the right to economic assistance in case of unemployment, old age, and
similar rights be enshrined as constitutional guarantees to address issues of poverty and
economic insecurity, though these provisions have been enshrined in the directive principles
of state policy. The right to freedom and personal liberty has a number of limiting clauses,
and thus has been criticised for failing to check the sanctioning of powers often deemed
"excessive". There is also the provision of preventive detention and suspension of
fundamental rights in times of emergency. The provisions of acts like the Maintenance of
Internal Security Act (MISA), Armed Forces (Special Powers) Act and the National Security
Act (NSA) are a means of countering the fundamental rights, because they sanction excessive
powers with the aim of fighting internal and cross-border terrorism and political violence,
without safeguards for civil rights. The phrases "security of State", "public order" and
"morality" are of wide implication. The meaning of phrases like "reasonable restrictions" and
"the interest of public order" have not been explicitly stated in the constitution, and this
ambiguity leads to unnecessary litigation. The freedom to assemble peaceably and without
arms is exercised, but in some cases, these meetings are broken up by the police through the
use of non-fatal methods.

Freedom of press has not been included in the right to freedom, which is necessary for
formulating public opinion and to make freedom of expression more legitimate. Employment
of child labour in hazardous job environments has been reduced, but their employment even
in non-hazardous jobs, including their prevalent employment as domestic help violates the
spirit and ideals of the constitution. More than 16.5 million children are employed and
working in India. India was ranked 88 out of 159 in 2005, according to the degree to which
corruption is perceived to exist among public officials and politicians worldwide. In 2014,
India had improved marginally to a rank of 85. The right to equality in matters regarding
public employment shall not be conferred to overseas citizens of India, according to
the Citizenship (Amendment) Bill, 2003.

As per Article 19 of Part III of the Indian constitution, the fundamental rights of people such
as freedom of speech and expression, gathering peaceably without arms and forming
associations or unions shall not effect the interests of the sovereignty and integrity of India
but not unity of India. The words sovereignty and integrity are the qualities to be
cultivated/emulated by Indian people as urged by the Indian constitution but not used related
to the territory of India. Article 1 of Part 1 of the Indian constitution, defines India (Bharat) as
a union of states. In nutshell, India is its people not its land as enshrined in its constitution.

Since speedy trial is not the constitutional right of the citizens, the cases involving violations
of fundamental rights take inordinate time for resolution by the Supreme Court which is
against the legal maxim 'justice delayed is justice denied'.

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Amendments

Changes to the fundamental rights require a constitutional amendment, which has to be

passed by a special majority of both houses of Parliament. This means that an amendment
requires the approval of two-thirds of the members present and voting. However, the number
of members voting in support of the amendment shall not be less than the absolute
majority of the total members of a house – whether the Lok Sabha or Rajya Sabha.

Fundamental rights not sacrosanct

While deciding the Golaknath case in February 1967, Supreme Court ruled that the
Parliament has no power to curtail the fundamental rights. They were made permanent and
sacrosanct reversing the Supreme Court's earlier decision which had upheld Parliament's
power to amend all parts of the Constitution, including Part III related to fundamental rights.
Up until the 24th constitutional amendment in 1971, the fundamental rights given to the
people were permanent and can not be repealed or diluted by the Parliament. The 24th
constitutional amendment introduced a new Article 13(4) enabling Parliament to legislate on
the subjects of Part III of the constitution using its constituent powers per Article 368 (1). In
1973, the 13 member constitutional bench of the Supreme Court also upheld with majority
the validity of the 24th constitutional amendment. However, it ruled that the basic structure of
the constitution which is built on the basic foundation representing the dignity and freedom of
the individual, can not be altered. This is of supreme importance and cannot be destroyed by
any form of amendment to the constitution. 15 Many constitutional amendments to Part III of
the constitution were made deleting or adding or diluting the fundamental rights before the
judgement of Golaknath case (Constitutional amendments 1, 4, 7, and 16) and after the
validity of 24th constitutional amendment is upheld by the Supreme Court (Constitutional
amendments 25, 42, 44, 50, 77, 81, 85, 86, 93, and 97).

Validity of Article 31B

Articles 31A and Article 31B are added by the first constitutional amendment in 1951.

Article 31B says that any acts and regulations included in the Ninth Schedule of the
constitution by the Parliament can override the fundamental rights and such laws cannot be
repealed or made void by the judiciary on the grounds of violating fundamental rights. Thus
fundamental rights given in Part III are not equally applicable in each state /region and can be
made different by making additions/deletions to Ninth Schedule by constitutional
amendments. In 2007, the Supreme Court ruled that there could not be any blanket immunity
from judicial review for the laws inserted in the Ninth Schedule. Apex court also stated it
shall examine laws included in the Ninth Schedule after 1973 for any incompatibility with the
basic structure doctrine.

15
"Paras 316 and 317 of Kesavananda Bharati v. State of Kerala, (AIR 1973 SC 1461)". 1973
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Amendment to Article 31C

Section 4 of the 42nd Amendment, had changed Article 31C of the constitution to accord

precedence to the Directive Principles (earlier applicable only to clauses b & c of Article
39) over the fundamental rights of individuals. In Minerva Mills v. Union of India case, the
Supreme Court ruled that the amendment to Article 31C is not valid and ultra vires.

Right to property

The Constitution originally provided for the right to property under Articles 19 and 31.
Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article
31 provided that "no person shall be deprived of his property save by authority of law." It
also provided that compensation would be paid to a person whose property has been taken for
public purposes.

The provisions relating to the right to property were changed a number of times. The 44th
Amendment of 1978 removed the right to property from the list of fundamental rights. A new
provision, Article 300-A, was added to the constitution, which provided that "no person shall
be deprived of his property save by authority of law". Thus, if a legislator makes a law
depriving a person of his property, there would be no obligation on the part of the state to pay
anything as compensation. The aggrieved person shall have no right to move the court under
Article 32. Thus, the right to property is no longer a fundamental right, though it is still a
constitutional right. If the government appears to have acted unfairly, the action can be
challenged in a court of law by aggrieved citizens.

The liberalisation of the economy and the government's initiative to set up special economic
zones has led to many protests by farmers and have led to calls for the reinstatement of the
fundamental right to private property. The Supreme Court has sent a notice to the government
questioning why the right should not be brought back, but in 2010, the Court rejected the PIL.
[38]

Right to education

The right to education at elementary level has been made one of the fundamental rights in
2002 under the 86th Amendment of 2002.[22] However this right was brought in to
implementation after eight years in 2010. On 2 April 2010, India joined a group of few
countries in the world, with a historic law making education a fundamental right of every
child coming into force. The Right of Children to Free and Compulsory Education Act will
directly benefit children who do not go to school at present. This act provides for the
appointment of teachers with the requisite entry and academic qualifications.

Former Prime Minister Dr. Manmohan Singh announced the implementation of the act.
Children, who had either dropped out of schools or never been to any educational institution,
will get elementary education as it will be binding on the part of the local and state
governments to ensure that all children in the 6–14 age group get schooling. As per the Act,

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private educational institutions should reserve 25 percent seats for children from the weaker
sections of society. The centre and the states have agreed to share the financial burden in the
ratio of 55:45, while the Finance Commission has given Rs.250 billion to the States for
implementing the Act. The Centre has approved an outlay of Rs.150 billion for 2010–2011.

The school management committee or the local authority will identify the drop-outs or out-
of-school children aged above six and admit them in classes appropriate to their age after
giving special training.

Analysis and Conclusion

Thus, we can say that it is not enough to have a constitution that guarantees an
impressive array of fundamental rights. Ultimately it is the judiciary that pours meaning into
the letter of the law or constrains the breadth of its reach. While examining the post-
Emergency era in India, it is important to examine whether courts have overstepped the
supposedly original intention of the framers when articulating rights not expressly mentioned
in the Constitution. It may seem that the Court may have surpassed the founding fathers'
intent. Nonetheless, its construction of Part III of the Constitution has remained within
constitutional parameters and incorporated the inherent spirit of the Constitution that
underscores social justice and human dignity.
In articulating new rights and coming to the succour of the poor and oppressed, the
Court has made bold and impressive forays into uncharted areas of social justice.
Today, many of the rights recognized in international instruments-including the right
to travel abroad, privacy, freedom from torture, right to a speedy trial, and the right to a
wholesome environment-have become a proud part of Part III of India's Constitution solely
because of perceptive judicial exegesis.
Any kind of infringement or violation of fundamental rights may be addressed by the
Supreme Court by means of filing a writ petition or Public Interest Litigation. The judiciary
has the power to review any law and quash it if found derogatory of the fundamental rights
provided in the constitution.

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References and Bibliography

· Prof. Kuldeep Kaur, Study Material, National Law Institute University.

· V.N. Shukla, The Constitution of India.

· Bare Act, Constitution of India; All India Reporter

· www.wikipedia.org

· www.indiankanoon.org

· www.legalservicesindia.com

· www.acedmia.edu

· www.lawnotes.in

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