Fundamental Rights

Fundamental Rights

General Overview
  • Part 3 of the constitution 
  • Article 12 to 35
  • Derived from Bill of Rights from US constitution
  • Very long and Justiciable Fundamental Rights in the world
 
  • To all person without any discrimination
  • To uphold equality, dignity, unity of the Nation
  • To prevent authoritarian and despotic rule in the country
  • To establish “Government of Laws and Not of Men”
 
  • Fundamental Rights are aimed so because they Guaranteed and protected by the constitution, which is Fundamental Law of the land
  • Most essential for all round development
 
Fundamental Rights
  • Right to Equality (14-18)
  • Right to Freedom (19-22)
  • Right against Exploitation (23-24) 
  • Right to freedom of Religion (25-28)
  • Cultural and Educational Rights (29-30)
  • Right to Property (31)
    • Deleted later by 44th Amendment Act, 1978
    • Made legal right under Article 300A in Part 12
  • Right to Constitutional Remedies (32)
 
Features
  • Citizen and Non citizen have different rights
  • They are not absolute but Qualified
  • State can impose reasonable restrictions, such restrictions are valid and not decided by court
  • Most of them are available against arbitrary action of the state with few exceptions, like against state action and against private individual
  • They are Justiciable, a person can move to court for enforcement, if violated 
  • Defended and Guaranteed by Supreme Court directly
  • Not permanent, parliament can curtail or repeal by Amendment Act without effecting the Basic structure
  • Suspended during National Emergency except Article 20, 21
  • Their application to members of armed forces, paramilitary forces, police forces can be restricted by the Parliament 
  • Their application can be restricted when martial law is in force in any area
  • Most of them are directly enforceable
 
Definition of State
  • Article 12
    • Executive and Legislative organ of Union and State Government
    • All local authorities, statutory and non statutory bodies
    • Hence all agencies even private body fall under State – by Supreme Court
  • Law inconsistent with Fundamental Rights
    • Article 13
    • Doctrine of Judicial Review
      • All laws that are inconsistent with any FR shall be void
      • Article 32, 226 in SC and HC respectively to declare law unconstitutional
    • Law includes
      • Permanent laws by Parliament or State Legislature
      • Temporary laws like ordinance by President or Governor
      • Rules and Regulations
      • Non-Legislature using force of law
  • SC held in Kesavananda Bharati case that Constitutional Amendment can be challenged if it violates Basic structure
 
Right to Equality
  • Equality before Law and Equal protection of Law
    • Article 14
    • State shall not deny to any person equality before law or the equal protection of law within the territory of India
      • Person includes legal persons – statutory corporations, companies, registered societies or any type of legal person
    • Equality before Law
      • Introduced by British rule
      • Absence of any privileges in favour of any person
      • No person is above law
    • Equal Protection of Law
      • Taken from US constitution
      • Equal treatment under equal circumstances
      • The like should be treated alike
    • Rule of Law
      • No man can be punished except breach of law
      • Equality before Law
      • SC decided it to be in Basic Structure
    • Exceptions
      • President and Governor are not swerable to any court
        • No criminal proceeding
        • Civil proceeding after 2 months notice
        • No arrest
      • No person liable to civil or criminal proceeding in any court in respect to Publication in the newspaper – true report of Parliament
      • No MP or MLA liable to any proceeding for whatever he says or vote in Parliament
      • Foreign rulers, ambassadors and diplomats enjoy immunity from criminal and civil proceedings
      • UNO and its agency enjoy diplomatic immunity
  • Prohibition of Discrimination on Certain grounds
    • Article 15
    • State shall not discriminate against any citizenon grounds onlyof Religion, Race, Caste, Sex or Place of birth
      • Shops, Hotels 
      • Wells, Bathing Ghats which are state owned
    • Exceptions 
      • Reservation of seats for women
      • Free education for children
      • Advancement of SC, ST
      • Socially and Educationally backward classes
  • Equality of opportunity in Public Employment
    • Article 16
    • Equality of opportunity in public employment to all citizenson grounds of Religion, Race, Caste, Sex, Descent and Place of Birth 
    • Exceptions
      • In favour of Backward classes
      • Office related to religious or denominational institute belong to particular religion
  • Abolition of Untouchability
    • Article 17
    • Forbids the practice of untouchability in any form
    • Imp acts
      • 1976 : Untouchability (Offence) Act
      • 1955 : Protection of Civil Rights Act
      • 1955 : to enlarge scope
    • Untouchability has not been defined either in constitution or act
    • Mysore High Court : not a literal meaning, but practice that had develop historically
    • 6 months jail, 500 fine or both
    • Offences
      • Prevention of any person from entering in public worship
      • Justifying untouchable on religious ground
      • Denying access to shop, hotels, etc
      • Refusing to admit in Hospitals, Schools
      • Refusing to sell goods
  • Abolition of Titles
    • Article 18
    • Prohibit the state from conferring any title (except Military or Academic distinction) on anybody, citizen or foreigner
    • Prohibit citizen from accepting any title from foreign state
    • Government servant cannot accept any title from foreign country without consent of President
    • Titles like Maharaja, Rai Sahab, etc need to be abolished
    • Bharat Ratna, Padma Vibushan, etc should not be used as prefix or suffix of name
 
Right to Freedom
  • Protection of Six rights
    • Article 19
    • Freedom of Speech and Expression
    • Freedom of Assembly
      • Assemble peacefully without arms
    • Freedom of Association
      • To form association or cooperative societies 
    • Freedom of Movement
      • Move freely throughout country
    • Freedom of Residence
      • Reside and settle in any part of India
    • Freedom of Profession
      • Practice any profession, trade legally
  • Protection in Respect of Conviction of Offence
    • Article 20
    • Protect against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person
    • Provisions
      • No person shall be convicted for any offence except for the violation of law in force at the time of commission of act
        • Retrospective effect
        • Ex-post-facto law
        • Only on Civil laws not on Criminal laws
      • No person shall be prosecuted and punished for the same offence more than once (Double Jeopardy)
        • Only in court proceedings
      • No person accused of any offence shall be compelled to be a witness against himself (Self-incrimination)
        • Oral, written, thumb, blood taken by compelling 
  • Protection of Life and Personal Liberty
    • Article 21
    • No person shall be deprived of his life or personal liberty except according to the Procedure established by law
      • All citizens and Foreigners as well
    • Gopalan case
      • Narrow interpretation of this article, arbitrary executive action and not against arbitrary legislative action
    • In Menaka case, 1978 SC included
      • Right to Livelihood
      • Right to Privacy
      • Right to Shelter
      • Right to Health, etc
  • Right to Education
    • Article 21A 
    • State shall provide free and compulsory education to all children of the age 6-14 yrs
    • Elementary education a fundamental right not Higher or Professional education
    • In 1993 – SC recognised FR of Right to Primary Education in Right to Life
  • Protection against Arrest and Detention 
    • Article 22
    • Punitive Detention
      • After trail and Conviction 
    • Ordinary Law
      • Right to be informed on the Ground of Arrest
      • Right to consult and defend by the legal practitioner 
      • Right to produce before Magistrate within 24hrs excluding journey time
      • Right to release after 24hrs unless magistrate authorise further detention
    • Preventive Detention 
      • Without trail and Conviction
      • Detention of person cannot exceed 3 months unless an advisory board report sufficient cause
      • The grounds of detention should be communicated
      • The detenu should be afforded an opportunity to make representation against order
      • 44th CAA reduced the period of detention from 3 months to 2 months, but still 3 months continues
 
Right against Exploitation
  • Prohibition of Traffic in Human beings and Forced Labour
    • Article 23
    • Prohibits the traffic in Human beings, begar (Forced labour without pay) and other similar forms of forced labour
    • Any contravention of this provision is punishable 
    • Both citizens and non citizens
    • Against state as well as private persons
    • Traffic means
      • Selling and buying of men, women, children like goods
      • Immoral traffic in women and children including Prostitution
      • Devadasis and Slavery
    • Exceptions
      • It permits the state to impose compulsory services for public purpose
      • Like military service as social service for which it is not bound to pay
  • Prohibition of employment of Children in Factories, etc
    • Article 24
    • Prohibits the employment of children below age of 14 yrs in any factories, mines or hazardous activities
    • Doesn’t prohibit in harmless activities
    • The Child Labour (Prohibition and Regulation) Act, 1986
      • Child Labour Amendment in 2016
      • Renamed as Child and Adolescent Labour Act 1986
        • Prohibits employment of children below 14 yrs in all occupations
        • Prohibits employment of adolescent in certain hazardous occupations
    • In 2006, Govt banned employment of children in hotel, shops, etc
    • Imprisonment of 6 months to 2 yrs, or fine of 20k to 50k
 
Right to Freedom of Religion 
  • Freedom of conscience and free Profession , Practice and Propagation of Religion
    • Article 25
    • All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion
      • Freedom of Conscience
        • Inner freedom of an individual to mould his relation with god or creature in whatever way he desire
      • Right to Profess
        • Declaration of one’s religious beliefs and faiths openly and freely
      • Right to Practice
        • Performance of religious practices, worship, rituals, etc
      • Right to Propagate
        • Transmission and dissemination of one’s beliefs to others
    • State is permitted to
      • Regulate or Restrict any financial, economic other secular activity associated with religious practice
      • Provide for social welfare reform or throw open Hindu religious institutions of public character to all classes and sections of Hindus
    • Article 25 have 2 explanations
      • Wearing kirpans to be included in profession
      • Hindus include Sikh, Jain, Buddist
    • It is Right of an Individual
  • Freedom to manage Religious affairs
    • Article 26
      • Right to establish and maintain institutions for religious and charitable purpose
      • Right to manage its own affairs in matter of religion
      • Right to acquire and own Movable and Immovable property 
      • Right to administer such property in accordance with law
    • It is a Right of Religious Denomination
  • Freedom from taxation for Promotion of Religion
    • Article 27
    • No person shall be compelled to pay taxes for promotion or maintenance of any particular religion or religious denomination
    • This provision prohibits only taxes not fees
  • Freedom from attending Religious Instruction
    • Article 28
    • No religious instruction shall be provided in any educational institution wholly maintained out of state fund
    • 4 type of educational institutions
      • Wholly maintained by state 
      • Administered by state but established under trust
      • Recognised by state
      • Receiving aid from the state
 
Cultural and Educational Rights
  • Protection of Interest of Minorities
    • Article 29
    • Any section of citizen residing in India having a distinct language, script or culture of its own shall have the right to conserve the same
      • Protects the right of a group.
    • No citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds onlyof religion, race, caste, language
      • Protects the right of a citizen as an individual
    • Grants protection of religious and linguistic minorities 
    • SC held that its not restricted to minorities but also majorities
    • SC also held that the right to conserve the language includes the right to agitate for protection of Language, hence political speeches doesn’t amount to corrupt practices
  • Right of minorities to establish and administer educational institution
    • Article 30
    • All minorities shall have the right to establish and administer educational institution of their choice
    • The compensation amount fixed by the state for the compulsory acquisition of any property of the minority educational institution shall not restrict the right guaranteed to them.
    • In granting aid state shall not discriminate against any educational institution managed by minorities 
    • Minority term is not defined in constitution 
    • Minority educational institute are 3 types
      • Recognition and aid from state
      • Recognition and No aid from state
      • No recognition or aid from state
    • Malankara Catholic College Case, 2007
      • Choose governing bodies
      • Appoint teaching and non teaching staff
      • Admit eligibility of students
      • Use its properties and assists for benefit of institutions
      • Rights are for equally with the majorities not to place minority in advantageous position 
      • Rights are not absolute nor it include right to maladministration 
      • Ensure the administration is efficient and sound
      • Extension of aid does not alter the nature and character of minority education
 
Right to Constitutional Remedies
  • A mere declaration of Fundamental rights in the Constitution is meaningless, useless and worthless without providing an effective machinery for their enforcement, if and when they are violated
  • Article 32
  • The right to remedies for the enforcement of the Fundamental rights of an aggrieved citizens
  • Right to get the Fundamental rights protected is in itself is Fundamental right
  • Ambedkar called this the very soul of the constitution
  • SC calls it as Basic structure 
  • Provisions
    • Right to move to SC by appropriate proceedings
    • SC shall have the power to issue directions or orders or writs for enforcement of any FR
    • Parliament can empower any other court to issue directions, doesn’t include HC (Art 226)
    • Right to move to court shall not be suspended except provided by constitution
  • SC has vested Original (directly move to court) and Wide (writs) powers
  • Under Article 32, SC can’t determine the question that doesn’t include FR
  • Jurisdiction of SC is original but not exclusive (HC in Art 226)
  • Writs
    • Habeas Corpus
      • To have a body of
      • Order issued by a court to a person who has detained another person to produce the body of the latter before it
      • It can be issued against both public authorities as well as private individuals
    • Mandamus
      • We command
      • Command issued by a court to a public official asking him to perform his official duties that he has failed or refuse to perform
      • Can be issued against any public body, corporation, inferior court, tribunal or government
      • Directs activity
    • Prohibition
      • To forbid
      • Higher court to a lower court or tribunal prevent from exceeding its jurisdiction 
      • Directs inactivity
      • It is preventive
      • Against judicial and quasi judicial bodies
    • Certiorary
      • To be certified
      • By higher court to a lower court either to transfer a case pending or to squash the order
      • In case of excess or lack of jurisdiction 
      • It is preventive and curative
      • Against administrative authority as well
        • Brought in 1991 by SC
    • Quo warranto
      • By what authority
      • Issued by a court to enquire into the legality of claim of a person to a public office
 
Armed Force and Fundamental Rights
  • Article 33
  • Empowers the parliament to restrict or abrogate the FR of the members of the armed force, paramilitary forces, intelligence agencies
  • Power to make laws under Article 33 conferred only on Parliament and not on State legislature 
  • Member of Armed forces covers
    • Employees of armed forces such as Barbers, Carpenters, Mechanics, Cooks, etc 
  • Can exclude court martials (Tribunals established under the military law) from writ jurisdiction
 
Martial Law and Fundamental Rights
  • Article 34
  • Restriction on the FR while Martial law is in force in any area within the territory of India
  • Parliament can validate any sentenced passed, order or act done under martial law in such area
  • Act made by parliament can’t be challenged in any court
  • Martial law is no where in constitution 
  • Martial Law
    • It effects only FR
    • It suspend government and ordinary law court
    • It is imposed to restore the breakdown of law and order due to any reason 
    • Imposed in some specific area of the country
    • No specification provision in the constitution 
  • National Emergency
    • It not only affects FR but also centre state relations, distribution of revenues, etc
    • It continue the government and ordinary law court
    • Only on 3 grounds : war, external aggression, armed rebellion
    • Either in the whole country or part 
    • Specific and detailed provision
 
Effecting certain Fundamental Rights
  • Article 35
  • Parliament have the power to prescribe residence as condition for certain employment
  • Empowering courts other than SC and HC to issue direction
  • Restriction of FR to armed forces
  • Power to make laws for prescribing punishment for those acts declared to be offence under FR
  • Any law made above will be there until repealed or altered by the Parliament
 
Exceptions to Fundamental Rights
  • Saving of Laws Providing for Acquisition of Estates
    • Article 31A
    • Acquisition of estates and related rights by the estates
    • Taking over the management of properties by the estates
    • Amalgamation or merger of the corporations
    • Extinguishment or modification of rights of directors and shareholders of corporations
    • 31A doesn’t immune a state law from judicial review
  • Validation of certain Act and Regulations
    • Article 31B
    • Saves the act and regulations included in the 9th schedule from being challenged and invalidated on the contravention of any of the FR
    • Thus the scope of 31B is wider than 31A
    • Immunize any law included in 9th schedule from all the FR
    • There will not be any blanket immunity from judicial review of laws included in 9th schedule
  • Saving of Laws giving effect to certain Directive Principles 
    • Article 31C
    • Inserted by 25th CAA, 1971
    • No law that seeks to implement the socialistic directive principles specifies in Article 39B or 39C shall be void on the ground of contravention of FR conferred by Article 14 or 19
    • Shall not be questioned in any court
      • In Keshavananda Bharati case declared as unconstitutional and invalid on ground that Judicial review is Basic structure
 
Criticism of Fundamental Rights
  • Excessive Limitations
  • No social and economic rights
  • No clarity
  • No permanency 
  • Suspension during emergency
  • Expensive remedy 
  • Preventive detention
  • No consistent philosophy 
 
Fundamental Rights outside Part 3
  • No tax shall be levied or collected except by authority of law 
    • Article 265 of Part 12
  • No person shall be deprived of his property save by authority of law
    • Article 300A in Part 12
  • Trade, commerce and intercourse through the territory of India shall be free
    • Article 301 in Part 13
  • Elections to the Lok Sabha and State Legislature Assembly shall be on basis of adult suffrage 
    • Article 326 in Part 15
 
 
 
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