STUDYIQ.

COM Educational and Cultural Rights

1

EDUCATIONAL AND CULTURAL RIGHTS

Educational and Cultural Article 29 Protection of interests of minorities

Rights Article 30 Right of minorities to establish
And administer educational institutions

Article 29

Conservation of distinct Languages, Script and

Culture

Article 29

No citizen shall be denied admission into any

educational institutions

Linguistic Minorities Religious Minorities

But there are no caste minorities.

▪ Article 29 (1) - provides that ‘any section of the State or receiving aid out of State funds on grounds
only of religion, race, caste, or language.
citizens’ residing in any part of India having a distinct
language, script or culture of its own, shall have the ▪ Article 29 grants protection to both religious
right to conserve the same. minorities and linguistic minorities.

▪ Article 29 (2) - No citizen shall be denied admission ▪ However, the Supreme Court held that the scope of
into any educational institution maintained by the this article is “not necessarily restricted to
minorities only”, as it is commonly assumed to be.
 STUDYIQ.COM Educational and Cultural Rights
2

▪ This is because of the use of words ‘section of No restriction:

citizens’ in the article that include ‘minorities’ as
Article 29(1) is not subjected to any reasonable
well as ‘majority’.
restrictions. The right conferred upon the citizens to
conserve their language, Script and culture has been
made absolute by the Constitution.

Article 30

Right of Minorities to Establish and Administer Educational Institution

Establish & administer educational institutions of their choice

Article 30 Compensation amount fixed by the state for acquisition

State- No discrimination against any Minority educational

institution

Minority Educational Institution

Types

Recognition & Seek only recognition Neither seek

aid from state & not aid recognition nor aid

Article 30 grants the following rights to minorities, the right guaranteed to them (44th
whether religious or linguistic:
amendment act)
• All minorities shall have the right to
establish and administer educational • In granting aid, the State shall not
institutions of their choice. discriminate against any educational
institution managed by a minority.
• The compensation amount fixed by the
State for the compulsory acquisition of ▪ The right under Article 30 also includes the right of a
any property of a minority educational minority to impart education to its children in its
institution shall not restrict or abrogate own language.
 STUDYIQ.COM Educational and Cultural Rights
3

▪ The protection under Article 30 is confined only to o Institutions that neither seek recognition nor aid
minorities (religious or linguistic) and does not from the State.
extend to any section of citizens (as under Article 29).
▪ The institutions of the 1st and 2nd type are subject to
▪ **The term ‘minority’ has not been defined the regulatory power of the state with regard to
anywhere in the Constitution. syllabus prescription, academic standards,
discipline, sanitation, employment of teaching staff
▪ Both Centre and States have the power to declare and so on.
‘Linguistic’ or ‘religious’ group as minorities.
▪ The institutions of 3rd type are free to administer
▪ Minority educational institutions are of 3 types: their affairs but subject to operation of general laws
like contract law, labour law, industrial law, tax law,
o Institutions that seek ‘recognition’ as well as economic regulations, and so on.
‘aid’ from the State;

o Institutions that seek only ‘recognition’ from the

State and not aid;

Supreme Court Judgements- ▪ To which extent the Government can impose

restriction on minority aided and unaided
In T.M.A Pai Foundation v. State of Karnataka case
institution.
Background -
The Verdict
▪ In 1984, the Governor of Karnataka promulgated
In the Judgment, the bench dealt with several issues
an ordinance which prevented the educational
regarding the autonomy of private minority educational
institutions from charging excessive fees and
institution.
passed an order on fixed intake.
▪ This ordinance was challenged by TMA PAI Trust ▪ The right to establish and administer
which said that it fell into the category of educational institution under Article 30 are not
Minority unaided private educational absolute rights.
institution i.e. it was not receiving any aid from ▪ Court held that both religious and linguistic
the State. minorities would be decided on the basis of
▪ Thus, the Government petition infringed on the states.
right of minorities to establish and administer ▪ Incase, of aided minority private educational
educational institution. institution the state can prescribe reasonable
regulations to ensure excellence of institutions.
Questions which came before the Apex court But the Government cannot interfere in day – to
▪ Whether there is a provision under which one – day administration of aided minority private
can establish and administer educational institution.
institution or not. ▪ Incase. Of unaided minority institution
▪ How the linguistic or religious minorities be regulatory measures imposed by the state
decided – on the basis of state or the whole should be minimal example recruitment of
country. teaching and non – teaching staff, administrative
▪ If the Government regulation on the minority control etc.
aided or unaided violative of article 30.
 STUDYIQ.COM Educational and Cultural Rights
4

▪ Incase of admission to the minority unaided West Bengal Madrassa Service Commission Act, 2008 -
educational institution can select and admit
▪ Several petitions were filed in the Calcutta High
students of their choice but the procedure of
Court challenging the validity of the law for
selection must be fair and transparent.
formulating guidelines for appointments of teachers
in minority institutions. The act had mandated that
Azeez Basha v. Union of India -
the appointment of teachers in madrassas was to be
Background – decided by a commission

▪ In 1965, certain amendments were made to the ▪ The high court declared the Act unconstitutional,
Aligarh Muslim University Act, 1920. saying it was violative of Article 30.
▪ The amendment diluted the powers of the
university court and had made it an advisory ▪ The verdict of the high court was eventually
body. challenged in the top court by teachers who were
▪ This amendment was challenged before a appointed under the new law.
constitutional bench in Azez Basha vs. Union of
▪ The SC upheld the validity of the 2008 Act and said
India
that the Commission is composed of people who
▪ The main point of contention was that
have profound knowledge in Islamic Culture and
amendment infringed on rights given under
Islamic Theology.
Article 30.
▪ Thus, the amendment was challenged on the ▪ It added that the Act was not violative of the rights
grounds that it impinged on the freedom of of the minority educational institutions on any
minorities to administer the university as per count.
their choice.
▪ The provisions of the Act were specially designed for
The Verdict madrasahs and the madrasah education system in
▪ Supreme Court held that If an institution has not West Bengal.
been established by minorities then they cannot
claim a right to administer it. In case of Aligarh
Muslim University, it was set up by the Central
Government through legislative measures.

▪ The words are given in article 30 (1) ‘Establish’ and

‘Administer’ has been read in coordination. It means
that only when a minority has established a minority
institution, it can claim a right to administer it. But
not otherwise.
 STUDYIQ.COM Educational and Cultural Rights
5

Article 31

It guarantees every person, citizen or non-citizen, the it a legal right under Article 300A in Part XII of the
right against property deprivation. Constitution.

▪ Right to property was one of the 7 fundamental ▪ Article 31 led to a number of Constitutional
rights. amendments: 1st, 4th, 7th, 25th, 39th, 40th and
42nd Amendments.
▪ But, the 44th Amendment Act of 1978 abolished the
‘right to property’ as a Fundamental Right and made

1st Amendment Act, 1951 Inserted Articles 31A and 31B to the Constitution.

25th Amendment Act, 1971 Inserted 31C to the constitution

▪ It includes:
Article 31A
o Acquisition of estates and related rights by the
Introduction – State;
After Independence, Congress had come into power at o Taking over the management of properties by
the centre and started taking steps to abolish Zamindari the State;
system (by acquiring the lands of Zamindari).
o Amalgamation of corporations;
The biggest impediment to the Zamindari abolition
programmes of the Government were the provisions of o Extinguishment or modification of rights of
Article 31 (Right to Property). They required the directors or shareholders of corporations
Government to pay ‘Just compensation’ before
acquiring land. o Extinguishment or modification of mining leases.
The Judicial pronouncements had put the Zamindari
abolition programmes in danger example the Bihar
Land Reforms Act was struck down as it violated Article Article 31B
14 by classifying Zamindars in a discriminatory manner.

Thus, the Central Government added a new provision

▪ In addition to Article 31 A the 1st constitutional
Article 31 A. This was provision was added by the 1st
Amendment added Article 31 B. It provided blanket
constitutional amendment act.
protection to all laws which were put under the 9th
Provisions - schedule against the provision of Article 13.
▪ It saves 5 categories of laws from being challenged ▪ Article 13 provided that all laws inconsistent with or
and invalidated on the ground of contravention of in derogation of the fundamental rights will be
the fundamental rights conferred by Article 14 and declared void. Thus, it is the basis of the power of
Article 19 (Initially Article 31 was also there but Judicial review.
later it was done away by the 44th constitutional
amendment act). ▪ Since they were added as a part of Article 31 the
purpose was to protect the legislation of Parliament
 STUDYIQ.COM Educational and Cultural Rights
6

which aimed to bring land and agrarian reform via Kesavananda Bharati case (1973)-
land acquisition etc.
▪ The 25th Amendment Act came to be challenged
▪ But the provision has been misused with laws before the Supreme Court in the Kesavananda
unrelated to land reform like revenue laws, Bharati case (1973).
Reservation laws example Tamil Nadu reservation
▪ The Court making a change upheld the 1st part of
for backward classes and Schedule Tribes etc being
provided the blanket protection under the 9th Article 31-C which states that law giving effect to
schedule. Article 39(b) and (c) can override Articles 14, 19 and
31.
▪ The scope of Article 31B is wider than Article 31A as
it immunises any law included in the 9th schedule ▪ But the 2nd part of the Article which barred the
from the Fundamental Rights. judicial scrutiny of laws passed to give effect to
Directives contained in Article 39(b) and (c) was
▪ In I.R. Coelho case (2007) (famously known as the 9th declared unconstitutional by the Court.
schedule act), Supreme Court ruled that even laws
under the 9th Schedule would be open to scrutiny if
they violated Fundamental Rights or the basic
structure of the Constitution. 42ND Constitutional Amendments 1976: (Parliament
response to court’s Judgment)

▪ It further amended Article 31-C and widened its

Article 31C
scope and gave precedence to all the Directive
Principles over Articles 14, 19 and 31.

25th Constitutional Amendment Act of 1951: ▪ It empowered the State to make laws giving effect
▪ It introduced new Article 31-C. The objective of the to all the Directive Principles and in doing so the law
can override Articles 14, 19 and 31.
article was to get over the difficulties placed by
Judicial decisions in giving effect to Directive
▪ Thus the laws made to this effect were made
Principles of State Policy mentioned under Part 4 of
immune from Judicial Review
the constitution.

▪ It contained two provisions:

Minerva Mills case 1980 - (Provision of the 42nd
o It says that no law that seeks to implement Amendment were challenged in this case)
socialistic directive principles specified in
Articles 39 (b) and (c), shall be declared void on ▪ The apex court struck down the changes introduced
by the 42th Amendment Act in Article 31 C as
the grounds of contravention of the FR’s
unconstitutional.
conferred by Article 14 or Article 19.
▪ The court struck on the ground at such total
o Moreover, no law containing a declaration that
exclusion of Judicial Review would offend the basic
it is for giving effect to such policy shall be
structure of the Constitution.
questioned in any court on the ground that it
does not give effect to such a policy. ▪ Hence, the present position is that only Article 39(b)
and (c) can be given precedence over Articles 14 and
Article 39(b): Equitable distribution of wealth 19 and not all the Directive Principles.

Article 39(C): Prevention concentration of wealth in fewer hands

 STUDYIQ.COM Educational and Cultural Rights
7

IMPORTANT TO NOTE:
▪ Articles 31A, 31B and 31C have been retained as exceptions to the fundamental rights.

▪ The main object of these provisions was to provide immunity to various laws curtailing property rights.

▪ But, article 31 dealing with right to property is no longer relevant in this respect as it has been removed from the
Fundamental Rights and has been made a legal right under Article 300-A).

Article 31 of the
Provided for constitution
“Right to Done away by
Property 44th amendment
act
Exceptions

Added by the
Added by the th
25 constitutional amendment
1st constitutional amendment
Objective

To protect Government legislations To implement the provision

which aimed to abolish the Zamindari of Part 4 i.e. Directive
System Principles of State Policy

Article 31 C
Article 31 A Article 31 B

No law that seeks to

Protected 5 Gave ‘blanket implement DPSP Articles 39
categories of Laws protection’ to all (b) and (c), shall be declared
from being laws placed in the 9th void on the grounds of
invalidated on schedule from being contravention of the FR’s
grounds of declared invalid if conferred by Article 14 or
contravention of they are ultra – vires Article 19
Article 14, 19 and the provision of
31 constitution
 STUDYIQ.COM Educational and Cultural Rights
8

Right to Constitutional Article 32 Right to Constitutional remedies

Rights

▪ It contains the following 4 provisions:

Article 32
o The right to move to Supreme Court by
appropriate proceedings for the enforcement of
RIGHT TO CONSTITUTIONAL REMEDIES the Fundamental Rights is guaranteed.
▪ A mere declaration of fundamental rights in the
o The Supreme Court shall have power to issue
Constitution is meaningless without providing an
directions or orders or writs for the
effective machinery for their enforcement, if and
enforcement of any of the fundamental rights.
when they are violated.
The writs issued may include habeas corpus,
▪ Hence, Article 32 confers the right to remedies for mandamus, prohibition, certiorari and quo-
the enforcement of the fundamental rights to an warranto.
aggrieved citizen.
o Parliament can empower any other court to
▪ The main objective of Article 32 is to provide a issue directions, orders and writs of all kinds.
guaranteed and cost-effective remedy for the
o The right to move the Supreme Court shall not
protection of fundamental rights.
be suspended except as otherwise provided for
by the Constitution. (National Emergency
Article 359)

Article 32 Conferred under Part

III of the Constitution

Right to move SC For the enforcement of FR's

SC shall have power

to issue writs

Habeas corpus You may have the body To release a person who has been detained

To secure the performance of public duties

Mandamus It means ‘We Command’
by courts

Prohibit inferior court from continuing the

Prohibition It means ‘to forbid’.
proceeding

Certiorari It means ‘to be certified’ To quashed the order already passed by

inferior court

Quo-warranto ‘by what authority’ To restrain a person from holding a public

office
 STUDYIQ.COM Educational and Cultural Rights
9

DR BR Ambedkar on Article 32: ▪ Article 32 is available only in cases of “violation of

Fundamental Rights” and not in case violation of
▪ He described Article 32 as the most
Important of all the Articles. other legal rights.

▪ The Supreme Court shall have power to issue

▪ Without this article, the Constitution is
nullified. directions or orders or writs for the enforcement of
any of the fundamental rights.
▪ It is the very heart and soul of the
Constitution.
Know ‘Writ’:
▪ Article 32 is fundamental to all the
Fundamental Rights. ▪ A writ is a formal written order issued by a body with
administrative or judicial jurisdiction.
▪ This article makes the SC the “protector and
guarantor of Fundamental Rights”. ▪ These writs are borrowed from English law where
they are known as ‘prerogative writs.’

▪ In India, the Supreme Court (under Article 32) and

Supreme Court and Article 32:
the High Courts (under Article 226) can issue the
▪ The Constitution places a duty on the Supreme Court writs of habeas corpus, mandamus, prohibition,
to engage the petition of an aggrieved individual and certiorari and quo-warranto.
provide remedial measures for him.

The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:

Supreme Court High Court

SC can issue writs only for the HC can issue writs not only for the enforcement of
enforcement of fundamental rights Fundamental Rights but also for any other purpose (legal
rights)
SC scope << HC scope
SC can issue writ Pan-India but HC can only issue writ in their particular state, with few
exceptions.
SC jurisdiction >> HC jurisdiction
SC cannot refuse to exercise its writ A remedy under Article 226 is discretionary and hence, a HC
jurisdiction may refuse to exercise its writ jurisdiction

Know the Types of ‘Writ’: ▪ It protects Fundamental Right of individual liberty

against illegal detention.
Habeas Corpus
▪ It is an order issued by the court to a person who has
detained another person.
▪ It is a Latin term which literally means ‘to have the
▪ Can be issued against any person - private or official.
body of’.
▪ It can ascertain whether the detention is legal or not.
▪ It means bring the detained person before the court.
▪ If it is found to be unlawful, the courts free him
forthwith.
 STUDYIQ.COM Educational and Cultural Rights
10

▪ The writ, on the other hand, is not issued where the o Detention is by a competent court, and

o Detention is lawful, o Detention is outside the jurisdiction of the

court.
o The proceeding is for contempt of a legislature
or a court,

Habeas corpus Against whom?

Private Citizen and Public

Authority

Bring the detained person before the court

Mandamus o Against a private individual or body;

o To enforce departmental instruction that do

▪ It literally means ‘we command’. not possess statutory force;

▪ It is a command issued by the court to a public o When the duty is discretionary and not
official asking him to perform his official duties that mandatory;
he has failed or refused to perform.
o To enforce a contractual obligation;
▪ It can also be issued against any public body, a o Against the President of India or the state
corporation, an inferior court, a tribunal or governors; and
government for the same purpose.
o Against the chief justice of a high court acting in
▪ The writ of mandamus “cannot” be issued: - judicial capacity.

Mandamus Against whom?

Against any Public officials, a

corporation

It is an order of a superior court asking a public official to perform

his official duties that he has failed or refused to perform.

Important to Note:
▪ It is usually not used against a private entity unless it is entrusted with a public duty. The nature of the duty must
be public.
 STUDYIQ.COM Educational and Cultural Rights
11

Prohibition

▪ Literally, it means ‘to forbid’. ▪ Thus, unlike mandamus that directs activity, the
prohibition directs inactivity.
▪ It is issued by a higher court to a lower court or
tribunal to prevent the latter from exceeding its ▪ The writ of prohibition can be issued only against
jurisdiction or usurping a jurisdiction that it does not judicial and quasi-judicial authorities.
possess.
▪ It is not available against administrative authorities,
legislative bodies, and private individuals or bodies.

Prohibition Against whom?

Judicial and Quasi-judicial

bodies

The objective is to prevent lower court from

exceeding its jurisdiction.

Certiorari
▪ Thus, unlike prohibition, which is only preventive,
certiorari is both preventive as well as curative.
▪ In the literal sense, it means ‘to be certified’ or ‘to
▪ Previously, the writ of certiorari could be issued only
be informed’.
against judicial and quasi-judicial authorities and not
▪ It is issued by a higher court to a lower court or against administrative authorities.
tribunal either to transfer a case pending with the
▪ However, in 1991, the Supreme Court ruled that the
latter to itself or to squash the order of the latter in
certiorari can be issued even against administrative
a case.
authorities affecting rights of individuals.
▪ It is issued on the grounds of excess of jurisdiction
▪ Like prohibition, certiorari is also not available
or lack of jurisdiction or error of law.
against legislative bodies and private individuals or
bodies

Certiorari Against whom?

Judicial and Quasi-judicial

bodies

It is issued to quash the order passed by an inferior

court or tribunal in excess of jurisdiction
 STUDYIQ.COM Educational and Cultural Rights
12

Quo-Warranto
▪ The writ can be issued only in case of a substantive
▪ In the literal sense, it means ‘by what authority or public office of a permanent character created by a
warrant’. statute or by the Constitution.

▪ It is issued by the court to enquire into the legality ▪ It cannot be issued in cases of ministerial office or
of claim of a person to a public office. Hence, it private office.
prevents illegal usurpation of public office by a
▪ Unlike the other four writs, this can be sought by
person.
‘any interested person’ and not necessarily by the
aggrieved person.

Quo-Warranto Against whom?

Any public authority

unqualified for the position

It is issued against the holder of a public office to show to

the court under what authority he holds the office

Article 33

Armed Forces and Fundamental Rights o The Navy Act (1950)

Parliament can restrict or abrogate by law the o The Air Force Act (1950)
Fundamental Rights applicable to the members of the
armed forces or the forces charged with maintenance of o The Police Forces (Restriction of Rights) Act,
public order. 1966
▪ Only Parliament can make law: Article 33 grants the o The Border Security Force Act and so on.
power to make laws ‘only’ to Parliament, not to
state legislatures. ▪ These impose restrictions on their:

▪ Members concerned- Armed forces, para-military o freedom of speech,

forces, police forces, intelligence agencies and
o Right to form associations,
analogous forces.
o Right to be members of trade unions or
▪ Some Enactments: Parliament has enacted several political associations
laws in order to restrict the fundamental rights of
the forces such as- o Right to communicate with the press,

o The Army Act (1950) o Right to attend public meetings or

demonstrations, etc.
 STUDYIQ.COM Educational and Cultural Rights
13

o The expression 'members of the armed mechanics, cooks, chowkidars, bootmakers,

forces’ also covers such employees of the tailors who are non-combatants.
armed forces as barbers, carpenters,

Article 34

Martial law and Fundamental Rights ▪ It refers to a situation where civil administration is
run by the military authorities.
▪ It provides restriction on Fundamental Rights while
martial law is in force in any area ‘within the territory ▪ The administration run by their own rule and
of India’. regulations framed outside the ordinary law.

▪ Parliament may by law indemnify any person in the Circumstances: It is imposed under the extraordinary
service of the Union or of a state or any other circumstances like war, invasion, insurrection, rebellion,
person. riot or any violent resistance to law to repel force by
force for maintaining or restoring order in the society.
▪ The act of indemnity cannot be challenged in any
court on the ground of contravention of any of the Effects:
fundamentals rights. ▪ Can impose restrictions and regulations on the rights
of the civilians
Know Martial Law:
▪ Can punish the civilians and even condemn them to
▪ It is not described anywhere in the constitution
death.
▪ The concept of martial law borrowed from the
English common law. Supreme Court on Martial Law: The Supreme Court held
that the declaration of martial law does not ipso facto
result in the suspension of the writ of habeas corpus.

Martial Law vs. National Emergency

Martial Law National Emergency

• It suspends the government and ordinary • It continues the government and ordinary
law courts. law courts.
• It affects only Fundamental Rights. • National Emergency affects-
o Centre - State Relationship
o Tenure of the Parliament.
o Fundamental Rights
o Legislative powers
o Revenue distribution.

• It is imposed to restore the breakdown of • National Emergency can be imposed only

law and order due to any reason on three grounds (Article 352) i.e.
o War
o External aggregation
o Armed rebellion.
 STUDYIQ.COM Educational and Cultural Rights
14

• Martial law is always imposed only in some • National Emergency can be in some area or
area of the country. the entire country.

• It is implicit i.e. there is no specific provision • It has specific and detailed provision in the
in the constitution. constitution. It is explicit.

Article 35 offences under the fundamental rights. These

include the following:
Effecting certain fundamental rights-

▪ It lays down that the power to make laws, to give o Article 17: Untouchability
effect to certain provisions shall ‘vest only in the
o Article 23: Traffic in human beings and forced
Parliament’ and not in the state legislatures.
labour
▪ It provides that the Parliament shall have and the
▪ Article 35 extends the competence of the Parliament
Legislature of a state shall not have power to make
to make a law on the specified matters even those
laws with respect to any of the matters which under
matters which may fall within the sphere of the state
Articles 16, 32, 33 and 34.
legislatures (i.e., State List).
o Article 16: Prescribing ‘residence’ as a condition
for certain employments or appointments in a Right to Property
union territory or local authority or other
authority Originally, the right to property was one of the seven
fundamental rights under Part III of the Constitution.
o Article 32: Empowering courts other than the
Article 19(1)(f) and Article 31 dealt with the right to
Supreme Court and the High Courts to issue
property was one of the fundamentals right in Part III of
directions, orders and writs of all kind for the
the constitution.
enforcement of fundamental rights.
▪ Article 19(1)(f): Every citizen has the right to acquire,
o Article 33: Restricting or abrogating the
hold, and dispose of property
application of Fundamental Rights to members
of armed forces etc. ▪ Article 31: It guarantees every person, citizen or non-
citizen, the right against property deprivation.
o Article 34: Indemnifying any government
servant or any other person for any act done 44th Amendment Act of 1978:
during the operation of martial law in any area.
The 44th Amendment Act of 1978 abolished the right to
▪ Parliament can also make laws for prescribing property as a Fundamental Right by repealing Article
punishment for those acts that are declared to be 19(1) (f) and Article 31 from Part III. Instead, the Act
added a new Article 300A under the heading 'Right to
Property' to Part XII.

Article 300A - No person shall be deprived of his property except authority of law

If the State intended to acquire the private property of an individual only on two conditions is:

a. public purpose
b. adequate compensation was to be paid to the owner of the property that was to be
acquired
The right to property is still a legal or constitutional right, but it is no longer a fundamental right. It is not a part of
the Constitution's basic structure.
 STUDYIQ.COM Educational and Cultural Rights
15

Right to Property as a Legal Right-

It can be regulated, modified through ‘ordinary legislation by the parliament.

It protects ‘private property’ from executive action but not from legislative action.

Aggrieved person cannot directly approach the Supreme court under article 32.

Aggrieved person can file a petition with the High Court under Article 226.

Supreme Court Judgement on Right to Property: ▪ State of Haryana v. Mukesh Kumar case (2011)- It
was held that the ‘right to property’ is not only a
▪ Jilubhai Nanbhai Khachar v. State of Gujarat- SC
constitutional or statutory right, but also a human
said that right to property under Article 300A is not
right.
a basic structure of the Constitution. It is only a
constitutional right.

CRITICAL APPRAISAL OF FUNDAMENTAL restriction’, ‘public interest’ and so on are not clearly
RIGHTS defined.

▪ The language “used to describe them is very

Excessive Limitations complicated and beyond the comprehension of the
common man.

▪ They are subjected to innumerable exceptions,

restrictions, qualifications and explanations. Hence, No Permanency
the critics remarked that the Constitution grants
Fundamental Rights with one hand and takes them
▪ They are not sacrosanct or immutable as the
away with the other.
Parliament can curtail or abolish them, as for
example, the abolition of the fundamental right to
property in 1978.
No Social and Economic Rights
▪ Hence, they can become a play tool in the hands of
politicians having majority support in the
▪ The list is not comprehensive as it mainly consists of Parliament.
political rights. It makes no provision for important
social and economic rights like right to social
Suspension During Emergency
security, right to work, right to employment, right to
rest and leisure and so on.
▪ The suspension of their enforcement during the
operation of National Emergency (except Articles 20
No Clarity
and 21) is another blot on the efficacy of these rights.

▪ They are stated in a vague, indefinite and ambiguous ▪ This provision cuts at the roots of democratic system
manner. The various phrases and words used in the in the country by placing the rights of the millions of
chapter like ‘public order’, ‘minorities’, ‘reasonable innocent people in continuous jeopardy.
 STUDYIQ.COM Educational and Cultural Rights
16

Expensive Remedy No Consistent Philosophy

▪ The judiciary has been made responsible for ▪ According to some critics, the chapter on
defending and protecting these rights against the fundamental rights is not the product of any
interference of the legislatures and executives. philosophical principle.

▪ “However, the judicial process is too expensive and ▪ Sir Ivor Jennings expressed this view when he said
hinders the common man from getting his rights that ‘the Fundamental Rights proclaimed by the
enforced through the courts. Indian Constitution are based on no consistent
philosophy’.

▪ This creates difficulty for the Supreme Court and the

high courts in interpreting the fundamental rights.