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Discussion > Constitutional Law > Constitution > Meaning of Fundamental Rights   Unanswered Threads Post New Topic

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Democratic Indian


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Posted On 16 September 2010 at 22:36 Report Abuse

No fundamental right can "granted" by any government document be it the Constitution of India or UN. Fundamental rights are birth rights. The fundamental rights exist, like we have the right to breath. Government documents merely "guarantee" those rights so that if violated a person can get relief by approaching the court of law. One cannot say we do not have fundamental right of self defense or RKBA. We very much have those rights and they have been horribly transgressed by our government due to sheeer ignorance of people and their representatives in Parliament. My purpose is to explain how pervasive this ignorance is. Hence it is not very surprising that unfortunately we have one act that is called Arms Act 1959(repainted version of Arms Act 1878) that is suffering from the vice of over delegation. It is doing no practical good except helping the bureaucrats/government to rule this country as a colony and it is no surprise we have rebellion in almost every part of country(far worst than what British had). Read the following: http://timesofindia.indiatimes.com/indi ... 533675.cms
"A hillock is strewn with empty bottles of whisky and sticks — remnants of what tribals allege was a 48-hour torture session by drunk BSF men.
"One of them grabbed me around the chest and said, 'you are a Naxal, haven't you been touched by a man before'," says the 16-year-old girl who lives and studies in a government residential school and had come home to recuperate from illness
Villagers say several men were beaten up in a similar fashion all through Sunday and Monday. Narsingh Kumar, one of the five men who was brought to the district hospital at Kanker, shows his bruised back and swollen feet. "They thrust a stick inside my anus," he said"

The Supreme Court has held in its landmark judgment in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice.This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression 'life' in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. Supreme Court has in numerous cases deduced fundamental rights which are not specifically mentioned in Part-III(Fundamental Rights) on the principle that certain unarticulated rights are implicit in the enumerated guarantees. Thus the Right to Self Defense is guaranteed by Constitution and corollary to it we already Sections 96 to 106 IPC.

Test of Reasonableness and natural justice:Courts have held that interpretation of the Constitution has to be such as to enable the citizens to enjoy the rights guaranteed by Part III to the fullest measure. Hence it cannot be expected from any person to exercise his Right of Self defense to the fullest measure unless he is allowed to keep and bear arms to the fullest measure. Hence the Right to Keep and bear Arms is clearly embedded in Right to Life guaranteed under Article 21. It also follows ALL PERSONS are allowed to keep arms unless anyone is disqualified as per clear procedure laid down by the law. The guarantee of Right to Life & Liberty becomes absolutely meaningless if the Right to Self Defense is denied. Also the Right to Self Defense becomes absolutely meaningless if the Right to Keep and Bear Arms is denied. It clearly follows if RKBA is violated by State the Right to Life & Liberty gets violated by State. Constitution is the fountain of all powers and laws. The Police and paramilitary are also given firearms for the same right of self defense as per RKBA as allowed by the same Constitutional guarantee under Article 21. Rights of citizens are no less. Self Defense and RKBA are Human Rights as well. RKBA is also a right which Indians have been enjoying from the times immemorial. It is a part and parcel of our culture. It is only during brief colonial period under British rule it was violated for colonial reasons.

What kind of tests of reasonableness and principles of natural justice the Arms Act passes, is anybodies guess?



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