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DR.

RAM MANOHAR LOHIYA


NATIONAL LAW UNIVERSITY,
LUCKNOW

FINAL DRAFT
ON
ENFORCEMENT OF FUNDAMENTAL RIGHTS

Submitted by: Submitted to:


Ravisha Pushkar Ms. Ankita Yadav
B.A. L.LB (Hons.) (Asst. Professor:
III Semester Law)
Roll no.111

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TABLE OF CONTENT

1. Acknowledgement
2. Introduction
3. Who can claim Fundamental Rights?
4. Rights of the artificial person:
5. Can government claim fundamental right?
6. Who are the beneficiaries behind the government?
7. Against whom Fundamental Rights can be enforced?
8. Fundamental Rights against legislature
9. Fundamental Rights against executive
10. Fundamental Rights against the local authorities
11. Fundamental Rights against Other Authorities
12. Can the Fundamental Rights be enforced against the Judiciary?
13. Conclusion
14. List of cases
15. Bibliography

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ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to my guide
Assistant Professor Ms. Ankita Yadav for their exemplary guidance, monitoring and constant
encouragement to give shape to this project. The blessing, help and guidance given by her
time to time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my respected seniors who
share their cordial support, valuable information and guidance, which helped me in
completing this task through various stages.

Lastly, I thank the almighty, my parents and friends for their constant encouragement without
which this assignment would not have been possible.

Ravisha Pushkar

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INTRODUCTION

Fundamental Rights are the basic rights mentioned in the Indian Constitution guaranteeing
the civil liberties of the people.
· Right to equality
· Right to freedom
· Right to freedom from exploitation
· Right to freedom of religion
· Cultural and educational rights
· The right to constitutional remedies
Ordinary Rights may be changed by a Legislature in the ordinary process of legislation but a
Fundamental Right being guaranteed by the Constitution can’t be altered except by amending
the Constitution itself.
Like many other concepts and ideas of our times, the concept of Fundamental
Rights also developed in the West, under that concept unlike the other legal rights which are
the creation of the state, the fundamental rights are claimed against the state.
Therefore, whether the constitution says it or not, it is assumed that the fundamental rights
given in it are available only against the state i.e. against the actions of the state and its
officials. For this reason the constitution of the United States, first amongst the modern
written constitutions to provide for the fundamental rights, applied those rights only to the
state action even though the constitution does not say so. These rights ensure the fullest
physical, mental and moral development of every citizen. They include those basic freedoms
and conditions which alone can make life worth living. Fundamental Rights generate a
feeling of security amongst the minorities in the country. They establish the framework of
‘democratic legitimacy’ for the rule of the majority. No democracy can function in the
absence of basic rights such as freedom of speech and expression. Fundamental Rights
provide standards of conduct, citizenship, justice and fair play. They serve as a check on the
government. Various social, religious, economic and political problems in our country make
Fundamental Rights important. In our Constitution, Fundamental Rights are enumerated in
Part III from Article 14 to 32. These rights are justifiable.

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Who can claim Fundamental Rights?

Citizens
 Person (citizens, non-citizens)
 Living person (can include unborn also)
Artificial (companies, NGOs etc)
Fundamental rights can be claimed by a citizen or a person. A person includes a non-citizen
also. For e.g. article 19 guarantees rights to the citizen where as article 12 is for a person. A
person may be a living or an artificial person.
In Charles Sobraj case Fundamental rights were violated under Article 12 and it was held
that persons include living person, even in the womb of a mother or yet not conceived.
In Vellore Citizens v. UOI a question was raised that when we are polluting the environment
the effect will be on living beings e.g. Bhopal mass disaster. Jagmohan Reddy J. said that the
right under Article 12 can be claimed by living beings and who are yet to be born. SC has
taken the help of the principle of Intergeneration equity. In the Nikita Mehta’s Case she never
wanted to go for appeal. If she doesn’t want to protect so whether is it important to go against
the mother. There may be some financial problem or some mental pressure.
Disabled people also have rights to survive and they are given special reservation also.
In Union Carbide v UOI a plea was taken, when you are providing compensation to victims
of Bhopal mass disaster also give rights to the children who’ll be born after the disaster. SC
left out many components of the disaster.

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Rights of the artificial person:

Artificial person includes companies, corporations, firms etc. In Bennett Coleman v UOI
Article 19(1)(a) was in question. On the behalf on the state the banking corporations and
corporations running press can’t claim fundamental rights, they can’t claim the freedom of
press. SC supported the doctrine of ‘pierce of veil’ if the corporation is run by the citizens
then why to deprive them.
In Cooper v. UOI Article 19(1) (g) was in question, citizens have right to carry on any trade
or occupation. So, even an artificial person can claim his fundamental rights.

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Can government claim fundamental right?

Charan Lal Sahu v UOI the union carbide case the facts were
· Govt. of India passed the Bhopal Gas Leak Disaster Act, to ensure it had standing, a locus
standi, to sue Union Carbide in US Courts
· The Act subrogated the plaintiffs in the US and Indian Courts
· Plaintiffs contend the Act is unconstitutional based on violating Article 14 of the Indian
Constitution, by creating special treatment for a group of citizens which may be to their
disadvantage. Court held that Court found requirement to act according to parens patriae
doctrine in the preamble to the Constitution and the Directives Principles of State Policy.
Court compared the relative position and resources of Union Carbide and the individual
plaintiffs as well as the remoteness of the US courts and found the victims were relatively
disabled in that sense of the relationship. Because of Bhopal Mass Disaster there were
numerous people affected-men, women, children, oldage. Whose economic condition is good
can go to the SC but everyone was not rich so parliament passed a law that government of
India will move on behalf of the citizens.

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Who are the beneficiaries behind the government?

Prof. Salt says animals can claim rights where as Prof. Mcklosky says animal cannot claim.
There is also a question whether plants can claim fundamental rights or not? Prof. Stone says
even a tree can claim protection. They help in the eco cycle of CO2 and O2. They have rights
in constitution.
The Indian position:
Godvarman v. UOI, when trees are cut illegally and the reserve forests are deforested and
hotels are build this is a great hazard to the environment. In Nair case it was related to the
rights of the animals. Cost of a land was going high and a person owned that property so that
he converted that farm house into a residency colony. Greenry will be hampered so you can’t
enjoy such property that effects the public interest.

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Against whom Fundamental Rights can be enforced?

 Legislature
 Executive
 Local authorities
 Other authorities
Article 13(2) says “state shall not pass any law taking away or infringing any fundamental
rights and if the state violates any law it is void.” If the state is making the laws infringing the
fundamental rights to the extent that law is void.

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Fundamental Rights against Legislature

State legislature and parliament pass a law and authorize executive to perform functions and
while performing they violate fundamental rights. State legislature authorize local authorities
like panchayat and lok adalats and violate fundamental rights. This is illustrated in Article 12
which defines the State. The State includes legislature executive and other authorities in the
territory of India or under the control of India. If the legislature passes a law in violation of
the fundamental rights it is void. First case on fundamental right was A.K. Gopalan case,
Preventive detention 1950. In that without giving ground you cannot arrest a person. Law was
passed and it was alleged that it violated rights under Article 12 of the Indian Constitution i.e.
right of life and personal liberty.

CASES:
· Bachhan Singh v. State of Punjab
Article 12 is questioned, where death penalty is passed by IPC, it is unconstitutional. Every
person has its own Right to Life
· R.K. Garg v. UOI
Taxation law was passed to make black money the white money. If a person doesn’t follow
he’ll be punished. Such law is unconstitutional under Article 14
· Cooper v. UOI
Discriminatory treatment under Article 14.

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Fundamental Rights against Executive

· Exel wear v. UOI


Industrial dispute act was put a closure on the business. It argued that I have right to carry on
business under article 19(1)(g). I have a right not to carry on the business.
· Maneka Gandhi case
She applied for the passport which was denied by the passport authority to issue it. She
claimed that she had right under Article 21 to go outside the country.
· Manubhai Shah v. LIC
Documentary on Bhopal genocide was prepared by him and wanted to show in on T.V DD
refused to show it, RTI is violated under article 19(1)(a) and Article 12. There were no
reasonable grounds mentioned. Documentary was to inform the people of Bhopal and what
precautions are to be taken. Executive is a delegated authority of legislature. They exercise
power in arbitrary manner.

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Fundamental Rights against the Local authorities

We mainly talk about municipalities. If they violate our right it is void.


· Wadhera v. UOI It is mandatory to have a clean environment. Municipality hasn’t provided
any restrictions n the disposal of waste. Spreading disease and polluting the environment.
Deals with the hospital waste. SC alleged that Delhi is the 3rd largest dirtiest city in the world.
· Hanif Qureshi case The case of the butcher. So that the shop does’t remain open on the
main road. Municipality passed that it is fundamental right to carry on any business trade
under Article 19(1)(g)
· State of Rajasthan v Chawla He was given on rest the loudspeakers to be used on marriage
processions. Chawla has right under Article 19(1)(g)

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Fundamental Rights against Other Authorities.

The question of who are the “other authorities” has not been answered clearly “other
authorities” make a law so as to abridge the Fundamental right of an individual, then under
Article 13 it be declared void by the courts. This means that it is upon the courts to decide
that whether the authority concerned comes under other authorities or not. Following are
certain cases where the courts have laid down certain tests in order to find that who the “other
authorities” are:
1. University of Madras v. Santabai and Rajasthan Electric Board v. Mohanlal
The courts decided that the question whether an University or an electricity board comes
under the definition of other authorities or not would be decided other authorities should not
be read separately but should be interpreted in the light of Article 12. Also the courts said that
if that body is performing sovereign function then it will come under other authorities, and if
the authority is similar to legislature. But the scenario changed with the cases of
1. Sukhdev Singh v. Bhagat Ram.
The courts developed a new test for deciding other authorities; i.e. whether the authority is an
“instrumentality of the government” Later in Ajay Hasia v. Khalid Mujib and Shetty v.
International Airports Authority the courts developed some more tests to decide other
authorities:
1. Created and recognized by the statute
2. Deep and pervasive control of the government
3. Any financial aid from the government
4. Whether the institution has authority to make binding rules and regulations for the people
working.
5. Performing the function of public welfare akin to the government function.

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Can the Fundamental Rights be enforced against the
Judiciary?
It may be noted that the ‘judiciary’, though an organ of the State like the executive and the
legislature is not specifically mentioned in the Article 12. Does it mean judiciary is not meant
to be included in the concept of ‘the state’? The answer depends on the distinction between
the judicial and the non judicial functions of the courts. In the exercise of the non judicial
functions, the courts falls within the definition of the state, the exercise of judicial functions
will however not occasion of the infringement of the fundamental rights and therefore the
question of bringing the court within the state wouldn’t arise. It was been held that when a
court in the exercise of the statutory rule making powers, makes rules which contravene the
fundamental rights of the citizens the rule could be held ultra vires and appropriate remedy
under Article 32 or Article 226 could be sought and obtained.
1. Likewise chief justice of India of the High Courts in exercising the powers of appointment
of the officers of the respective courts shall be amenable to the writ jurisdiction if
appointments made are in violation of the equality clause of the Constitution.
2. The court said “It is singularly inappropriate to assume that the judicial decision
pronounced by the competent jurisdiction in or in relation to a matter brought before him for
adjudication can affect the fundamental rights of the citizen under Article 19(1). What the
judicial decision purports to do is to decide the controversy between the parties brought
before the court and nothing more.”
3. In Khoday Distilleries Ltd. V. Registrar General, Supreme Court of India, the court held
that against a final order of the court under article 136 which has also been reviewed under
Article 137, a petition under Article 32 is not maintainable. Later the court decided Supreme
Court Bar Assn. v. Union of India.
4. on a petition decision because firstly, the court expressly affirmed antualy. The question of
the power of the court to violate the fundamental rights in the exercise of its judicial functions
was not raised or discussed.
1. Prem Chand Gard v. Excise Commr. AIR 1963 SC 996
2. Article 146,229
3. State of Bihar v. Bal Mukund Shah,(2000) 4 SCC 640
4. (1998) 4 SCC 409

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Finally in Rupa Ashok Hurra v. Ashok Hurra a constitutional Bench of the court unanimously
affirmed that no final order of court can be challenged under Article 32.

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CONCLUSION

Fundamental Rights are the basic rights mentioned in the Indian Constitution guaranteeing
the civil liberties of the people enumerated in Part III from Article 14 to 32. The question
here was who can claim the fundamental rights and against whom? The fundamental rights
can be claimed by the citizens, person living person, or an artificial person. There are certain
rights for the unborn even. Such as that the environment should be protected for the future
generation. The medical termination of pregnancy can’t be done as the disabled also have
right to live and government has given reservation for them in education as well as in
services. There are rights reserved for them. Initially the artificial person were not able to
claim the fundamental rights but the reality is that the corporations and the firms are being
run by the persons only so the artificial person that is the corporations also have the right to
claim the fundamental rights. Even the trees and animals have rights. If chopping down the
trees of your property in affecting the environment adversely, such enjoyment of the property
is not allowed. Even the government can claim the fundamental rights in special
circumstances such as in the case of union carbide there was a common interest so
government moved on the behalf of the people. If for a common reason many people will
move there will be a flush of litigations and even everyone is not financially stable to file a
litigation so it’s better that government move on behalf of the common mass.
The fundamental rights can also be claimed against “the state” as defined under
Article 12 which include legislature, executive, municipalities and other authorities. The
courts in the subsequent cases have decided that in case if any of the organs of the state
passes a law so as to abridge the fundamental right of the individual, then that law shall be
declared void by the courts. The courts have also in the subsequent cases decided the question
of other authorities.

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LIST OF CASES:

· Bachan Singh v. State of Punjab


· Maneka Gandhi v. Union of India
· R.K. Garg v. Union of India
· Cooper v. Union of India
· Charanlal sahu v. UOI
· Union carbide v. UOI
· Vellore citizen v. UOI
· Godvarman v. UOI
· Manubhai shah v. LIC
· Indra jai singh v. UOI
· Wadhera v. UOI
· Almitra patel v.UOI
· Ajay hasia v. Khalid mujib sehravardi
· Rajasthan electric board v. mohanlal
· Excel wear v. UOI

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BIBLIOGRAPHY

 P.M.BAKSHI, The Constitution of India


 D.D BASU, Constitutional Law
 V.N. SHUKLA, Constitutional Law
 www.supremecourtcases.com
 www.indianlawcases.com

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