Fundamental
Rights:
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- For civil liberties and
functional democracy
- Conceptualization: Natural
rights-----Social rights---Human rights
- Civil and political
rights---social and economic rights like right to work etc---collective
rights like sexual minority, consumer rights ---rights of future
generations like Net neutratlity
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FR
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- Part 3 of
constitution A12-35
- A12 - goi include.. ,
- A13 - law inconsistent void,
- A32 - JR, A226 - HC
- Bill of right - US
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Amendability
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- Article 13(2): State
cannot make any law that takes away FRs
- Shankari Prashad case
(there are two types of legislative power: constituent and ordinary.
Power under Article 368 is similar to that of power of the constitution
assembly and therefore any 'Law' cannot include the Constitutional
amendment. Thus can be amended ) to Sajjan Singh 1965
- Golakanath case 1967:
cannot be amended
- 24th Amendment Act:
- Definition of law was
changed
- Thus can be amended
- Keshavananda Bharti case
1973: Basic structure doctrine
- 42nd Amendment Act,
amended article 368 and gave parliament full power
- Minvera Mills case (1980):
Invalidated above provision
- Waman Rao case (1981):
Doctrine of basic structure would apply after 24th April 1973.
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Basic Structure
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Critique:
- no constitutional basis
- re-writing of
constitution
- infringement on the
principle of Majority rule
- Converts the Judiciary
into the 3rd chamber of the parliament
- no objectivity and not
clearly defined
- NJAC struck down due to it
Support:
- SC is the final
interpreter and protector of the constitution.
- Preserves the
constitutional identity
- Till now it has been used
responsibly
- Facilitates democratic
dialogue around key constitutional principles
- Now an International
practice: Bangladesh, Germany etc
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Significance of FR
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- Bedrock of democratic
system
- Material and moral
protection of man
- Bulwark of individual
liberty
- Establishment of rule of
law
- Protect interest of
minorities
- Strengthen secular fabric
of country
- Check absolute authority
of government
- Lay down foundation stone
of social equality
- Dignity and respect
- Facilitate participation
of people
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