Module 5 & 6

Foundation of Fundamental Rights & Concept of State

• Represents an attempt to protect the individual from oppression and injustice.

• In modern times, it is widely accepted that the right to liberty is the very essence of a free
society and it must be safeguarded at all times.

• The idea of guaranteeing certain rights is to ensure that a person may have a minimum
guaranteed freedom.

• The entrenched Fundamental Rights have a dual aspect.

• From one point of view, they confer justiciable rights on the people which can be
enforced through the courts against the government.
• From another point of view, the Fundamental Rights constitute restrictions and
limitations on government action, whether it is taken by the Centre, or a State or a
local government
Global perspective
USA
• The modern trend of guaranteeing Fundamental Rights to the people may be traced to the

Constitution of the U.S.A. drafted in 1787.

• The U.S. Constitution was the first modern Constitution to give concrete shape to the concept

of human Rights by putting them in to the Constitution and making them justiciable and

enforceable through the instrumentality of the courts

• The original U.S. Constitution did not contain any Fundamental Rights.

• There was vigorous criticism of the Constitution on this score.

• Consequently, the Bill of Rights came to be incorporated in the Constitution in 1791 in the form

of ten amendments which embody the LOCKEIAN ideas about the protection of life, liberty and

property
• In modern times, the concept of the people’s basic rights has been given a more
concrete and universal texture by the Charter of Human Rights enacted by the
United Nations Organization (U.N.O.) and the European Convention on Human
Rights in 1948.

• There is no formal declaration of people’s Fundamental Rights in Britain.

• Until 1998, the protection of individual freedom in Britain, therefore, rested not on
any constitutional guarantees but on public opinion, good sense of the people, strong
common law traditions favouring individual liberty and the Parliamentary form of
government.

• Even in Britain, there was an ever growing realization that guaranteed civil rights
do serve a useful purpose and that Britain should also have a written Bill of Rights

• Ultimately, the British Parliament enacted the Human Rights Act, 1998
• During the British rule in India, human rights were
violated by the rulers on a very wide scale.
• Therefore, the framers of the Constitution, many of
whom had suffered long incarceration during the British
regime, had a very positive attitude towards these rights
• The Indian society is fragmented into many religious,
cultural and linguistic groups, and it was necessary to
declare Fundamental Rights to give to the people a
sense of security and confidence
• The need to have the Fundamental Rights was so very
well accepted on all hands that in the Constituent
Assembly, the point was not even considered
• The Indian Constitution guarantees essential human rights in the
form of Fundamental Rights under Part III
• These Rights are reminiscent of some of the provisions of the Bill of
Rights in the U.S. Constitution
• The framers of the Indian Constitution, learning from the experiences
of the U.S.A., visualized a great many difficulties in enunciating the
Fundamental in general terms and in leaving it to the courts to
enforce them
• The Indian Constitution, therefore adopts a different approach in so
far as some Rights are worded generally; in respect of some
Fundamental Rights, the exceptions and qualifications have been
formulated and expressed in a compendious form in the Constitution
itself, while in respect of some other Rights, the Constitution confers
power on the Legislature to impose limitations
The Fundamental Rights in the Indian Constitution have been
grouped under seven heads as follows:
• Right to Equality comprising Articles 14 to 18, of which Article 14
is the most important.
• Right to Freedom comprising Articles 19 to 22 which guarantee
several freedoms, the most important of which is the freedom of
speech.
• Right against Exploitation consists of Articles 23 and 24
• Right to Freedom of Religion is guaranteed by Articles 25 to 28.
• Cultural and Educational Rights are guaranteed by Articles 29
and 30.
• Right to Property is now very much diluted and is secured to
some extent by Arts. 30-A, 31-A, 31-B and 31-C.38
• Right to Constitutional Remedies is secured by Articles 32 to
35.
• The Supreme Court plays a very significant role in relation to the
Fundamental Rights “sentinel on the qui vive”

• In the first place, the Court acts as the protector and the guardian of
these rights. In the second place, the Court acts as the interpreter of
the Fundamental Rights.

• “It must be remembered that the Fundamental Rights are

• SLP filed against the compensation granted by Calcutta High Court for the victim, Smt. Hanuffa

Khatoon, a Bangladeshi national who was gang-raped by many including employees of the Railways in a

room at Yatri Niwas at Howrah Station of the Eastern Railway

• It was argued that the Railways would not be liable to pay compensation to Smt. Hanuffa Khatoon who

was a foreigner and was not an Indian national. Held Smt. Hanuffa Khatoon , who was not the citizen of

this country but came here as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional

rights available to a citizen so far as "Right to Life" was concerned. She was entitled to be treated with

dignity and was also entitled to the protection of her person as guaranteed under

• Article 21 of the Constitution. As a national of another country, she could not be subjected to a

treatment which was below dignity nor could she be subjected to physical violence at the hands of Govt.

employees who outraged her modesty. The right available to her under Article 21 was thus violated.

Consequently, the State was under the Constitutional liability to pay compensation to her
Shamdasani v Central Bank of India
AIR 1952 SC 59
• The petitioner held five shares in the respondent-bank and, the
bank sold the shares to a third party by exercising its right to
lien as it sought to recover the debt owed by the petitioner. The
petitioner unsuccessfully challenged the actions of the bank
before the Bombay High Court. Thereafter, the petitioner
approached the Supreme Court by way of a writ petition under
Article 32 of the Constitution seeking to enforce fundamental
rights guaranteed under Articles 19(1)(f) and 31 against the
respondent-bank
• A constitution bench of the Supreme Court had dismissed the
petition on the preliminary ground that Articles 19(1)(f) and
31 of the Constitution were not enforceable against
private persons
FR against Private citizens
• Most Fundamental Rights are only available against
State
• By help of multiple judgements it can be understood
that Articles 17 , 23 and 24 of the Constitution of
India are considered to be enforceable against private
persons.
• However, these provisions pertaining to untouchability
and trafficking clearly provide that ordinary laws will
be enacted, and private acts in derogation to these
provisions will be punished under offences created
under ordinary laws
Nar Singh Pal v. Union of India, AIR
2000 SC 1401
• Can FRs be waived?
• Multiple perspectives but ultimately leaning towards
non waiver
• In Nar Singh Pal v. Union of India, the Supreme Court
has asserted: “Fundamental Rights under the
Constitution cannot be bartered away. They cannot be
compromised nor can there be any estoppel against the
exercise of Fundamental Rights available under the
Constitution”.
• The doctrine of non-waiver developed by the Supreme
Court of India denotes manifestation of its role of
protector of the Fundamental Rights