Polity Titbits: Fundamental Rights and DPSP, Fundamental Duties

Fundamental Rights

Fundamental rights Constitutional rights Legal rights
Included in part 3 (magna carta of India) of constitution Not in part 3 Not in constitution
Can directly move supreme court for enforcement under article 32 no no
Parliament can abridge these rights only in very special circumstances Can be abridged by constitutional amendment By simple legal amendment
6 Rights included in part 3 No taxation with authority (278),Right to property (Art 300A), freedom to trade (art 301) Right to employment under MGNREGA

Amendability of Fundamental rights

Article 13 Laws inconsistent with part 3 (FRs) null and void
Shankari Prasad Case Amendment under article 368 not law, can be amended
Golaknath case Law, can not be amended
Kesavananda Bharati (24/04/73) Not law, can be amended but basic structure can’t be amended
Minerva mills case Basic structure can’t be amended to implement DPSP

Special cases

Fundamental rights not available to foreigners Article 15, 16, 19, 29, 30
Available against private citizens Article 17
Suspended automatically during emergency on grounds of war or External aggression Article 19
Can’t be suspended even during emergency Article 20,21
Against exploitation Article 23, 24
Most fundamental of FRs/ Right to constitutional remedies Article 32

Procedure Established by Law v/s Due Process

Procedure Established Due Process
British, Japanese American constitution
Arbitrary Administrative actions Arbitrary administrative as well as legislative
A. K. Gopalan case Maneka Gandhi
Action according to procedure established by law Law must also be just fair and reasonable

Titbits:

  1. FRs are not absolute. Parliament can impose reasonable restrictions.
  2. Right to property (art 31) has been deleted from part 3 by 44th amendment and is now a constitutional right under art 300A
  3. Article 31B put acts include under 9th schedule (added by 1st CAA) outside judicial review
  4. But Matters added to 9th schedule after 24th April 1973 (Kesavananda Bharati Case) are not immune to judicial review (I.R. Coelho case)

DPSPs

DPSP FRs
Taken from Ireland America
Part of constitution Part 4 Part 3
Legal validity Non justiciable Justiciable
Aim Social and Economic Democracy (welfare state) Political democracy

(limit state power)

Fundamental to governance of country (instrument of instructions under GOI act 1935)

Titbits:

  1. DPSPs can be classified into socialist, Gandhian and liberal – intellectual categories
  2. 42nd, 44th, 86th and 97th amendment added new DPSPs

Fundamental duties: Learn by heart

Titbits:

  1. Right and duties are correlative yet original constitution didn’t have FDs
  2. Part 4A, article 51A of constitution by 42nd amendment
  3. 11th duty added by 86th amendment in 2002 (education of kids)
  4. Taken from USSR constitution based on Swaran Singh Committee report
  5. Applicable only to citizens not to foreigners
  6. Non justiciable
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