Professional Documents
Culture Documents
Unit III, TOPIC 1 and 2
Unit III, TOPIC 1 and 2
RIGHTS LAW
UNIT-III : NATIONAL HUMAN
RIGHTS LAW
TOPIC 3.1 AND 3.2
Constitutional Provisions
Fundamental Rights
Ms. Farah Hayat
Assistant Professor
Delhi Metropolitan Education, IP University
f.hayat@dme.ac.in
Unit Objectives and Learning
Outcomes
• Unit Objectives:
• 1. In-depth insight into the constitutional, statutory and institutional aspects of human rights
protection in India, fundamental rights, DPSPs, NHRC particularly.
• 2. Covers constitutional provisions dealing with human rights and special legislations dealing
with protection of rights.
• 3. Discussion on institutional framework in India dealing with protection and enforcement of
human rights.
• Learning Outcomes:
• By the end of the course students should be able to:
• 1. Demonstrate a good understanding of the provisions under the Constitution of India dealing
with human rights.
• 2. Demonstrate a good understanding of fundamental rights.
• 4. Analyze complex human rights problems and apply relevant provisions of human rights law
in India.
Suggested Readings
• In the case of Riju Prasad Sarma v. State of Assam, it was held by the
Supreme Court that when a court is acting in its judicial capacity, it
cannot be considered as ‘state’. However, its administrative action is
amenable to writ.
• Landmark cases-
• In Shankari Prasad v. Union of India, 1951 the first amendment act of 1951
was being challenged before the supreme court on the ground that ‘Right to
Property’ has been abridged by the Act. The Supreme Court ruled that the power of
the Parliament to amend the Constitution under Article 368 also includes the power
to amend Fundamental Rights.
• The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional
amendment acts (constituent laws). Therefore, the Parliament can abridge or take
away any of the Fundamental Rights by enacting a constitutional amendment act
and such a law will not be void under Article 13.
• The landmark case of I.C. Golaknath v. State of Punjab,
1967 three constitutional amendments were challenged which
were 1st, 4th and 17th. The supreme court reversed its decision
that parliament has unlimited power of amendment under
article 368 and held that it has no power to amend to take away
or abridge the fundamental rights guaranteed under our
constitution. The supreme court observed that:
• Article 368 only provides a procedure to be followed
regarding amendments of the constitution. It does not actually
contain the power to amend the constitution.
The powers to amend the constitution is derived from article
245, 246, 248 and entry 97 of the Union list.
• In Keshavananda Bharti v. State of Kerala, 1973
case, Golaknath ruling was overturned and power of
parliament under Article 368 was upheld but it cannot
amend basic structure of constitution.
• But they come with certain reasonable restrictions (clause (2) to (6)).
• Protection of 6 Rights u/Ar. 19(1)(a)-(g)
• a. Right to freedom of speech and expression.
• Reasonable restrictions (RR) under clause 2-sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation
or incitement to an offence
• b. Right to assemble peaceably and without arms.
• RR under clause 3-sovereignty and integrity of India or public order
• c. Right to form associations or unions or co-operative societies.
• RR under clause 4-sovereignty and integrity of India or public order or
morality
• d. Right to move freely throughout the territory of India.
• RR under clause 5-interests of the general public or for the
protection of the interests of any Scheduled Tribe
• e. Right to reside and settle in any part of the territory of
India.
• RR under clause 5-interests of the general public or for the
protection of the interests of any Scheduled Tribe
• g. Right to practice any profession or to carry on any
occupation, trade or business.
• RR under clause 6-(i) the professional or technical
qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
• (ii) the carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or
service, whether to the exclusion, complete or partial, of
citizens or otherwise.
• Romesh Thappar v. State of Madras, 1950
• In this case, the petitioner used to a publish and circulate a
newspaper names “cross roads” which used to review and
criticize the schemes and activities of the government of
Madras. The government of Madras banned the entry and
circulation of this newspaper in the state by the restriction of
public safety grounds.
• The supreme court in this case said that the right of circulation
of the newspaper lies solely with the establishment i.e., the
company of the newspaper and the state of Madras cannot
interfere with the same. The ground of Public safety under
Article 19(2) is not a reasonable restriction in this case and
hence a ban on entry and circulation of the newspaper by
the state of Madras cannot be imposed under Article 19(2).
• Sakal Paper v. Union Of India (AIR 1962 SC 305)
the court held that the Daily Newspaper(Price and
Control) Order 1960, which fixed a minimum price
and number of pages which a newspaper was entitled
to publish, was held unconstitutional, as it infringed
the liberty of the press.
• Bennett Coleman and Co. v. Union of India AIR
1973 SC 106
• The Court noted that freedom of press is an essential
element of Article 19(1)(a) and the absence of an
express mention of such freedoms as a special
category was irrelevant.
• Indian Express Newspaper v.
Union of India, 1986 AIR 515
• The Supreme Court of India in this
case held that Article 19 of the Indian
Constitution does not use the phrase
“freedom of press” in its language,
but it is contained within Article
19(1) (a). There cannot be any
interference with the freedom of press
in the name of public interest. The
purpose of the press is to enhance
public interest by publishing facts and
opinions, without which a democratic
electorate cannot take responsible
decisions. It is, therefore, the primary
duty of courts to uphold the freedom
of press and invalidate all laws or
administrative actions which interfere
with it contrary to the constitutional
mandate.
Right to Life Article 21
• Article 21 ensures every person right to life and
personal liberty. Life and personal liberty has been
given a very expansive and wide amplitude covering
a variety of rights. Its deprivation is only possible
through “the procedure established by law”.
• (1)The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
• (2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this Part.
• (3) Without prejudice to the powers conferred on the Supreme Court by
clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 ).
• (4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.
• “Article 32 is the heart and soul of the Constitution”- B.R.
Ambedkar