Conflict Between Fundamental Right and D.P.S.P.

Topics: Human rights, Universal Declaration of Human Rights, Fundamental Rights in India Pages: 22 (7547 words) Published: October 5, 2012






SUBMITTED IN partial fulfilment of B.A. LL.B.(Hons.) first semester

Submitted to: Submitted by: Mrs.Sweta Dhaliwal Harkirat Singh Kang(308)

Satvik shekhar (318)

Kawal jyot singh(328)

Ashutosh sharma(338)

Case 1:

Appellants:Unni Krishnan, J.P. and others etc.
Respondent: State of Andhra Pradesh and others etc.
Hon'ble Judges:
L.M. Sharma, C.J., S. Ratnavel Pandian, S. Mohan, B.P. Jeevan Reddy and S.P. Bharucha, JJ. AIR1993SC2178, JT1993(1)SC474, 1992(2)SCALE703, (1993)1SCC645, [1993]1SCR594.

Case Note:

Constitution - professional degree - Sections 4 and 15 of Andhra Pradesh Educational Institution (Regulation of Admission) Order 1974 - whether professional degree covered under fundamental right to education - petitioner contended that every citizen has right to education for medical, engineering or other professional degree - petitioner contended that when primary education covered under fundamental right then professional degree also covered same - petitioner filed petition on precedent of Court - Court observed that precedent of Court passed Order within jurisdiction of Constitution of India - no Articles of Constitution of India provide fundamental rights as claimed by petitioner - petition dismissed.

The question which arose in the case of whether a citizen has a Fundamental Right to education for a medical, engineering or other professional degree. The question whether the right to primary education, as mentioned in Article 45[1] of the Constitution of India, is a Fundamental Right under Article 21[2] did not arise in Mohini Jain's case and no finding or observation on that question was called for. It was contended before us that since a positive finding on that question was recorded in Mohini Join's case it becomes necessary to consider its correctness on merits. We do not think so. Learned arguments were addressed in support of and against the aforesaid view which have been noticed in the judgments of our learned Brothers. It was contended by learned Counsel appearing for some of the parties before us that Article 37 [3] in Part IV of the Constitution expressly states that the provisions contained in Part IV shall not be enforceable by any court and that, therefore, assuming the right under Articles 45 to be included within the ambit of Article 21, it would still not be enforceable. Emphasis was also laid upon the language used in Article 45 which requires the State to "endeavor to provide" for the free and compulsory education of children. A comparison of the language of Article 45 with

that of Article 49[4] was made and it was suggested that whereas in Article 49 an "obligation" was placed upon the State, what was required by Article 45 was "endeavor" by the State. We are of the view that these arguments as also the arguments of counsel on the other side and the observations in the decisions relied upon by them would need a thorough consideration, if necessary by a larger Bench, in a case where the question squarely arises. Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia[5], that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37...
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