Notes: Fundamental Rights- 1 | Political Science & International Relations: Mains Optional - UPSC PDF Download

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• Rights are claims of a person over other fellow beings, over the society and over the government. Fundamental 
rights are essential tool for maintaining Constitutionalism. 
• Maintaining the equilibrium between liberty and restrictions is the soul of the Indian Constitution. Fundamental 
Rights in Part III of the Constitution tries to do just that. 
• It provides a list of guaranteed rights. According to Ananth Padmanabhan the guarantee of fundamental rights 
in Part III of the Constitution represents a tectonic shift in constitutional philosophy from the Government of India 
Act 1935.  
• The latter put in place a comprehensive governance structure, but with minimal protection to the governed. Part 
III replaces this notion of authority with a bidirectional vision of rights and duties. 
• The Fundamental Rights are meant for promoting the ideal of political democracy. The Fundamental Rights are 
named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the 
land. 
• They are ‘fundamental’ also in the sense that they are most essential for the all- round development (material 
intellectual, moral and spiritual) of the individual.  
• While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and 
guaranteed by the constitution of the country and have a special status with regard to their abrogation or 
amendment. Moreover, citizens have the right to move to the Highest Court in case these rights are violated. 
• The inclusion in the Constitution of a distinct part guaranteeing Fundamental Rights can be traced to the forces 
that operated in the struggle for independence during British Rule.  
• As early as 1895 Bill that was described by Mrs. Annie Besant as the Home Rule Bill, was introduced which 
envisaged a Constitution for India guaranteeing to every citizen freedom of expression, inviolability of one’s 
house, right to property, equality before the law etc. 
• In August 1918 Indian National Congress soon after the publication of the Montagu-Chelmsford Report, made a 
demand that the new Government of India Act should declare the rights of the people of India as British Citizens. 
• The Commonwealth of India Bill finalized by the National Convention in 1925 contained specific declaration of 
rights visualizing for every person in terms practically identical with the relevant provisions of the Irish Constitution 
specifying fundamental rights. 
• The Motilal Nehru committee demanded a bill of rights as far back as in 1928. The rights enumerated by the 
Motilal Nehru Report- free elementary education, living wages, protection of motherhood, welfare of children -
were a precursor of the fundamental Rights and Directive Principles of State Policy.  
• Simon Commission Report in 1930 did not support the demand for enumeration of Fundamental Rights in the 
Constitution Act on the ground that abstract declaration of such rights was useless there existed the will and 
means to make them effective. 
• In March 1931 Indian National Congress Karachi session reiterated demand for a written guarantee of 
Fundamental Rights as essential in any future Constitutional set up in India. 
• The Sapru Committee appointed by the All Parties Conference during the year 1944-45 expressed the view that 
Fundamental Rights should be expressly guaranteed. The British Cabinet Mission Plan of 1946 envisaged the 
setting up of an Advisory Committee for reporting, inter alia, on Fundamental Rights.  
• The Constituent Assembly had an Advisory Committee headed by Sardar Patel to enumerate these rights for 
Indian citizens. The Constituent Assembly has debated every fundamental right and developed the text of the 
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• Rights are claims of a person over other fellow beings, over the society and over the government. Fundamental 
rights are essential tool for maintaining Constitutionalism. 
• Maintaining the equilibrium between liberty and restrictions is the soul of the Indian Constitution. Fundamental 
Rights in Part III of the Constitution tries to do just that. 
• It provides a list of guaranteed rights. According to Ananth Padmanabhan the guarantee of fundamental rights 
in Part III of the Constitution represents a tectonic shift in constitutional philosophy from the Government of India 
Act 1935.  
• The latter put in place a comprehensive governance structure, but with minimal protection to the governed. Part 
III replaces this notion of authority with a bidirectional vision of rights and duties. 
• The Fundamental Rights are meant for promoting the ideal of political democracy. The Fundamental Rights are 
named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the 
land. 
• They are ‘fundamental’ also in the sense that they are most essential for the all- round development (material 
intellectual, moral and spiritual) of the individual.  
• While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and 
guaranteed by the constitution of the country and have a special status with regard to their abrogation or 
amendment. Moreover, citizens have the right to move to the Highest Court in case these rights are violated. 
• The inclusion in the Constitution of a distinct part guaranteeing Fundamental Rights can be traced to the forces 
that operated in the struggle for independence during British Rule.  
• As early as 1895 Bill that was described by Mrs. Annie Besant as the Home Rule Bill, was introduced which 
envisaged a Constitution for India guaranteeing to every citizen freedom of expression, inviolability of one’s 
house, right to property, equality before the law etc. 
• In August 1918 Indian National Congress soon after the publication of the Montagu-Chelmsford Report, made a 
demand that the new Government of India Act should declare the rights of the people of India as British Citizens. 
• The Commonwealth of India Bill finalized by the National Convention in 1925 contained specific declaration of 
rights visualizing for every person in terms practically identical with the relevant provisions of the Irish Constitution 
specifying fundamental rights. 
• The Motilal Nehru committee demanded a bill of rights as far back as in 1928. The rights enumerated by the 
Motilal Nehru Report- free elementary education, living wages, protection of motherhood, welfare of children -
were a precursor of the fundamental Rights and Directive Principles of State Policy.  
• Simon Commission Report in 1930 did not support the demand for enumeration of Fundamental Rights in the 
Constitution Act on the ground that abstract declaration of such rights was useless there existed the will and 
means to make them effective. 
• In March 1931 Indian National Congress Karachi session reiterated demand for a written guarantee of 
Fundamental Rights as essential in any future Constitutional set up in India. 
• The Sapru Committee appointed by the All Parties Conference during the year 1944-45 expressed the view that 
Fundamental Rights should be expressly guaranteed. The British Cabinet Mission Plan of 1946 envisaged the 
setting up of an Advisory Committee for reporting, inter alia, on Fundamental Rights.  
• The Constituent Assembly had an Advisory Committee headed by Sardar Patel to enumerate these rights for 
Indian citizens. The Constituent Assembly has debated every fundamental right and developed the text of the 
significant Part III. 
• The Constitution envisages the fundamental rights as the common platform on which divergent political 
ideologies and practices may meet. 
Who are these claims against? (Madhav Khosla): 
• Vertical Rights- These are rights that prohibit certain act by the State- Most of these rights are of this nature 
• Horizontal Right-These are rights that prohibit certain act just by the State but private actors as well such articles 
15 (2), 17, 23, 24 etc. 
• Article 12 of the Constitution reads as follows : “In this Part , unless the context otherwise requires, ‘the State’ 
includes the Government and Parliament of India and the Government  and the Legislature of  each of the States 
and all local or other authorities within the territory of India or under the control of the Government of India”. 
• The device of an inclusive definition makes it clear that the Constituent Assembly did not wish to freeze the list 
of actors against whom fundamental rights could be claimed. Article 12 has defined the term for the purposes of 
Part III. According to it, the State includes the following: 
o Government and Parliament of India, that is, executive and legislative organs of the Union government. 
o Government and legislature of states, that is, executive and legislative organs of state government. 
o All local authorities that is, Municipalities, Panchayat, District boards, improvement trusts, etc. 
o All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc. 
• With the changing role of all-pervasive State since the LPG reforms, this definition has undergone numerous 
changes. In the Ajay Hasia case, the Court decided to go beyond the narrow structuralist definition of State.  
• The Court prefers to use the ‘instrumentality and agency’ of the corporation in question to include even those 
that perform functions that are of public importance and closely related to Governmental functions.  
• Thus, according to the Supreme court, even a private body or an agency working as an instrument of the state 
falls within the meaning of the ‘State’ under Article 12. The P.K Biswas judgment underlined the test of 
‘functional, financial and administrative control’ for determining an entity’s status. 
• There have been numerous debates surrounding this matter. One of the most controversial debates was with 
regard to the status of BCCI. 
• In 2005 judgment the Supreme court refused to look at the BCCI which is an autonomous body registered 
under the Societies’. Registration Act as a ‘public authority’. 
• However, in 2018 the Law Commission examined the issue as asked by the Court. In its report it said that BCCI 
performs “state-like” functions, receives public funding and so should be brought under the ambit of the Right 
to Information (RTI) Act. 
• In October 2018, the Central Information Commission went through the law, orders of the Supreme Court, the 
Law Commission of India report, submissions of the Central Public Information Officer in the Ministry of Youth 
Affairs and Sports to conclude that the status, nature and functional characteristics of the BCCI fulfil required 
conditions of Section 2(h) of the RTI Act. 
• Section 2(h) the Act defines criteria under which a body can be declared as public authority under the RTI Act. 
• The CIC further recognised the economic (monopoly) nature of the BCCI acting as a sports federation for cricket 
but also outlined the power and ability of such a body to impact the human rights of athletes and potential 
athletes.