Based on the constitutional law principles of fundamental rights

constitutional law

1. Fundamental Rights

2. Should Human Rights be restricted to non-interference only (capitalist approach) or it should require non-interference in some but action in other matters from the state (socialist approach)?

3. Capitalist v. Socialist Approach Pre WW2 v. Post WW2 Rich industrialised west v. Poor non- industrialised countries Civil & Political Rights v. Social & Economic Rights

4. Fundamental Rights in India

5. Interrelationship between Part III (Articles 12 to 35) & IV (Articles 36 to 51) Justiciable v. Non-Justiciable Negative v. Positive Rights Granville Austin laid emphasis on the fact that this division (Part II & IV) was the creation of the Constituent Assembly and not of “the leaders of the independence movement [who] had drawn no distinction between the positive and negative obligations of the state” “The Fundamental Rights and directive principles had their roots in the struggle for independence. And they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India. The Rights and Principles thus connect India’s future, present and past, adding greatly to the significance of their inclusion on the Constitution, and giving strength to the pursuit of the social revolution in India”

6. Part III & IV together form the conscience of the Constitution Both Parts are equally concerned with human rights and dignity of the individual. Neither of them is superior or inferior to the other They are complementary and together constitute the human rights regime “Without one the rights in the other are not only incomplete but also unattainable”

7. A. Fundamental Rights (FR) Originally divided into 7 parts, namely, Right to Equality Right to Freedom Right against Exploitation Right to Freedom of Religion Rights of the Minorities Right to Property* Right to Enforce the FRs Some FRs are available not only against the State but also against private persons or groups. Some FRs impose positive obligations on the state to take affirmative action – See Articles like 15(3) & (4), and 16(4), (4A) & (4B) Some FRs bestow special care upon religious and linguistic minorities - See Articles 29 & 30 *was deleted in 1979 & was placed in a new Article i.e. Article 300A

8. B. Directive Principles Article 38 lays out the spirit of the DPs “ State to secure a social order for the promotion of welfare of the people.— The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. ” Some of the DPs are as follows, Right to adequate means of livelihood Equal pay for equal work Distribution of ownership & control of material resources Protection & development of children Free legal aid Right to work Free and compulsory education for children up to the age of 14years

9. C. Some of other Articles in the Indian Constitution that provide for negative rights and positive obligations Articles 325 & 326: Adult Franchise Articles 324 to 329: Fairness of electoral process Articles 330 to 342: special provisions for the representation of SCs, STs, and Anglo-Indians in the national parliament and state legislatures (reservation of seats) Articles 335 to 337: Special education grants & representation in certain state services for SCs, STs, and Anglo-Indians Articles 338 to 340: Elaborate machinery for protection of SCs, STs & OBCs Article 350 & 351: Special safeguards and machinery for linguistic minorities Articles 244 & 244A: For better administration of predominantly tribal areas Article 164: Appointment of a tribal welfare minister in some of the states

10. References Mahendra P. Singh,“ Constitutionalization and Realization of Human Rights” eds. C. Raj Kumar and K. Chockalingam [New Delhi: Oxford University Press, 2007]