Fundamental Rights

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Subject Code: LLB 204
Name of the Subject:
CONSTITUTIONAL LAW II
UNIT I
FUNDAMENTAL RIGHTS

• Detailed description of Fundamental Rights
• Fundamental Rights are in conformity with our social conditions
Only classified rights, no recognition of natural rights
• Fundamental Rights are obligatory on Union Government, State
Governments and Local Governments
• Positive and Negative rights
Nature and Main Features

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar
Council of India)
•Fundamental Rights are equally applicable to all citizens
•Rights are not absolute or unlimited
•Fundamental Rights can be suspended
•Parliament can amend the Fundamental Rights within the basic structure of
the constitution
•Parliament can restrict the fundamental Rights of the security forces
•Fundamental Rights are justiciable

Fundamental Rights enshrined in the Indian Constitution
Right to Freedom – Article 19
• Freedom of speech and expression
• Freedom to assemble peacefully and without arms
• Freedom to form associations and unions
• Freedom to move throughout the territory of India
• Freedom to reside and settle in any part of India
• Freedom to practice any profession, occupation, trade or
business

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of
Delhi & Bar Council of India)
Right Against Exploitation – Article 23-24
• Prohibition of traffic in human beings and forced Labour
• Prohibition of child Labour
Rights to Religious Freedom, Articles 25-28
• Freedom of Conscience
• Freedom to manage religious affairs
• Freedom from payment of taxes for promotion of any
particular religion
• No religious instruction in government educational institutions
• Religious instruction is not compulsory in private institutions

Council of India)
Right to Constitutional Remedies Article 32
The right to constitutional remedies is the most important right
because it makes other fundamental rights secure. Without it,
other fundamental rights can’t be got enforced. The courts can
issue many kinds of writs to protect the rights of the citizens:
• Writ of Habeas Corpus
• Writ of Mandamus

• Writ of Prohibition
• Writ of Quo-Warranto
• Writ of Certiorari

UNIT II
RIGHT TO EDUCATION ACT, 2009

INTRODUCTION
After independence, Article 45 under the Indian Constitution stated
that the State shall endeavor to provide, within a period of ten years
from the commencement of this Constitution, for free and compulsory
education for all children until they complete the age of fourteen years.
But the State failed miserably in fulfilling this obligation as is evident
from the fact that even after 60 years, universal elementary education
remains a distant dream

Council of India)
The 86th Amendment Act, 2002, made three specific provisions in the
Constitution to facilitate the realization of free and compulsory education.
These were :
(i) adding Article 21A in Part III (fundamental rights),
(ii) modifying Article 45, and
(iii) adding a new clause (k) under Article 51A (fundamental duties),
making the parent or guardian responsible for providing opportunities for
education to their children between 6 and 14 years.

Art 21-A inserted in Fundamental Rights as per 86th
Constitutional Amendment:
The State shall provide free and compulsory education to all children
of the age of 6 to 14 years in such manner as the State may, by law,
determine.
Consequential legislation:
The Right of Children to Free and Compulsory Education Act, 2009.
Presidential assent received on 26th August, 2009 and came in to
force from April 1, 2010.

Provisions (Right of children)
To free and compulsory admission, attendance and completion of EE.
•Free: no child liable to pay any fee/expense preventing her from pursuing
and completing EE.
•Compulsion: on the state; parental duty to send children to school.
Not enrolled/dropout children be admitted to age appropriate class.
No child shall be failed or expelled up to class 8
Bars corporal punishment mental harassment.

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt
of NCT of Delhi & Bar Council of India)
Provisions (Schools)
•Norms and standards specified for all schools
•Infrastructure and related facilities
•Pupil Teacher Ratios – for each school
•School days; working hours for teachers
•Facilities
•Community participation in schools ensured through SMC
comprising elected reps, teachers and parents
¾ members from among parents of children in the school; 50%
women
•Proportionate representation to weaker and deprived sections

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by
Govt of NCT of Delhi & Bar Council of India)
Provisions (Schools)
•All aided schools to provide free education to at least 25% children.
•Special category schools and unaided schools to admit in Class I at least
25% children, belonging to weaker section and disadvantaged group, from
the neighborhood, and provide free and compulsory elementary education.
•No capitation fees
•No screening for admission
•No school without recognition.

:
Conclusion
The Right to Education (RTE) Act would play an important role in
achieving universal elementary education in India, but it is amply clear that
year one of the implementation of the Act has not covered much ground.
In order to meet the goals set by us, India must prioritize and invest in
making the Act a reality through dialogue and consultation with key
stakeholders within and outside the government. Else the Act will join the
ranks of yet another legislation which never covered the distance between
conceptualization and implementation.

UNIT III
DIRECTIVE PRINCIPLES OF STATE
POLICY

INTRODUCTION
The Directive Principles of State Policy, embodied in Part IV of the
constitution, are directions given to the central and state
governments to guide the establishment of a just society in the
country. According to the constitution, the government should keep
them in mind while framing laws, even though they are non-
Justiciable in nature. Directive Principles are classified under the
following categories: Gandhian, social, economic, political,
administrative, legal, environmental, protection of monuments,
peace and security.

Council of India)
 Article 36 to 51 of the Constitution of India embodies the Directive
Principles of State Policy and for these we are indebted to the
Constitution of Ireland. The objective is to establish a social and
economic democracy in India
 Article 37 reveals that :
1. The Directive Principles are not justiciable
2. They are Fundamental in the governance of the country
3. It shall be the duty of the State to apply these Directive Principles
while formulating policies or making laws for the governance of
the State

CLASSIFICATION
•Socialist Principles
•Liberal Principles
•Gandhian Principles
•International Principles

SOCIALIST PRINCIPLES
•Article 38 of the Constitution of India shall endeavour to formulate
such social system which will secure social, economic and political
justice to all in all the spheres of life.
•Article 39(a) the state shall try to formulate its policyin such a manner
so as to secure adequate means of livelihood for all its citizens.
•Article 39(b) the ownership of material resources would be controlled
in such a manner so as to subserve the common good.

LIBERAL PRINCIPLES
•Artcle 44 of the Indian Constitution? The State shall
endeavour to formulate and implement a Uniform civile-code
for all the people living throughout the territory of India.
•Artcle 45 of the Indian Constitution the State shall
endeavour to provide early childhood care and education for
all the children untill they complete the age of six years.
•Artcle 47 of the Indian Constitution the State shall strive to
raise the level of nutrition and the standard of living. Thus, it
will endeavour to improve upon the health of the people.

(Affiliated to Guru Gobind Singh Indraprastha University and
Approved by Govt of NCT of Delhi & Bar Council of India)
GANDHIAN PRINCIPLES
•Article 40, State will strive to organise Panchayats in villages and
will endow them with such powers which enabel them to act as
units of self government.
•Article 43, the state shall strive to develop the cottage industry in
the rural areas both, on individual or co-operative basis.
•Article 47,the state will strive to ban the consumption of wine,
other intoxicating drinks and all such commodities which are
considered injurious to health.
•Article 48 reveals that State will ban slaughtering of cows, calves
and other milch cattle

:
INTERNATIONAL PRINCIPLES
•Article 51(a)- The State will strive to promote international peace and
security.
•Article 51(b)- The State will strive to maintain just and honourable
relations among various states in the world.
•Article 51(c)- The State will endeavour to promote respect for
International treaties, agreements, and law.
•Article 51(f)- The State will strive to settle international disputes by
arbitration.

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT
of Delhi & Bar Council of India)
IMPORTANCE OF DIRECTIVE PRINCIPLES
• These Principles are directives for the States
• Lay down the foundation of Economic Democracy
• These are measuringf rods to judge the achievements of the
Government
• They establish welfare state
• These are Fundamental in the Governance of the country.
• These Principles supplement Fundamental rights
• Guiding Principles for courts
• They bring stability and continuity in State policies
• Educative value of Directive Principles

UNIT IV
JUDICIAL REVIEW

Judicial Review
•Available to test lawfulness of decisions by public body NOT private
bodies
•Must be distinguished from an ordinary appeal against a decision
•Appellate courts
❑appellate jurisdiction over civil and criminal courts
•Judicial review court
❑supervisory jurisdiction
❑concerned with the manner in which the decision-making body
has applied the relevant rules

Council of India)
Administrative Law
Prerogative orders
•Certiorari – quashes the
original decision
•Prohibition – commands
public to refrain from an
illegal action
•Mandamus – commands
public body to perform its
duty
Private law remedies
•Declaration – declares
what the legal position is
•Injunction – commands
action
•Damages

Grounds for judicial review
•Illegality
decision transgresses powers given to the public body
•Irrationality (Wednesbury unreasonableness)
decision irrational or unreasonable
•Procedural impropriety
failure to observe the rules of natural justice or comply with
procedures laid down by statute

Judicial Review
NHS rationing of health care resources
Judicial review of rationing raises questions of:
•legality of rationing – statutory duties; priority setting; services
within NHS; NHS Directions and Guidelines
•reasonableness of rationing - allocation of resources; clinical
freedom; evidence-based guidelines: NICE; discretion
•Procedural propriety – processes for consultation and appeal

Council of India)
Administrative powers
In every sphere of public administration: town and country planning,
regulation of public health, environmental matters, welfare services, control
of trades, professions and other activities
Their exercises are subject to judicial control by means of the doctrine of
ultra vires

Ultra vires
•Meaning -“beyond the powers”
•An act by a public authority, company, or other body that
goes beyond the limits of the powers conferred on it
Ultra vires acts: invalid

Fundamental Rights

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Fundamental Rights