- Right to Equality (Art 14-18)
- Right to Freedom (Art 19-22)
- Right against Exploitation (Art 23-24)
- Right to Freedom of Religion (Art 25-28)
- Cultural and Educational Rights (Art 29-30)
- Right to Constitutional Remedies (Art 31)
Features of Fundamental Rights.
- Some available only to citizens while others available to all.
- Not absolute. Bound by Reasonable Restrictions.
- Most are available against the State, some are available against individuals.
- Some are negative while others are positive.
- Justiciable. When violated courts can be approached.
- Supreme Court can directly be approached without going through HC.
- Can be curtailed by Parliament.
- Can be suspended during a National Emergency (except Art 20-21). Art 19 can be suspended only on grounds of war & external aggression.
- Scope is limited by Article 31A, 31B, 31C.
- Their application to members of Armed forces, intelligence agencies, police, etc can be restricted or abrogated by Parliament (Art 33).
- Can be restricted if Martial Law is in place (Article 34).
- Some of them are direclty enforceable, others need laws for enforcement.
Definition of State
- Art 12 defines the term ‘State’ for the purposes of Part-lll.
- ‘State’ includes exec & leg at Centre & States/all local authorities/all other statutory & non-statutory authorities like LIC, ONGC, SAIL, etc.
- SC declared private bodies working as instruments of State in Art 12.
Laws Inconsistent with Fundamental Rights
- Art 13 all laws inconsistent with fund rights shall be void.
- Provides for Judicial Review to protect FR. (SC – Art 32/HC – Art 226)
- The term ‘law’ has been defined in Art 13 where it includes all laws of all legislatures, all Ordinances of the exec, all delegated legislation by exec & exec orders, non-legislative sources of law like custom which has force of law.
- Art 13 also declares Const Amnd cannot be challenged as they are not laws, but SC overruled this – Const Amnd cannot violate basic structure.
Armed Forces & Fundamental Rights
- Art 33 empowers Parliament (not State leg) to curtail FR of members of Armed forces, para-military forces, police forces, intelligence agencies & analogous forces.
- Accordingly Army Act, Navy Act & Air Force Act (1950), Police Forces (Restriction of Rights) Act, 1966 & others have been enacted.
- Court Martials are also excluded from Judicial Review in FR cases.
Martial Law & Fundamental Rights
- Art 34 implicitly authorises exec to declare martial law.
- The term ‘martial law’ has not been used and no explicit powers given.
- Borrowed from English Common Law.
- Military authorities are vested with abnormal powers to restrict FR.
- SC declared Martial Law does not ipso facto lead to suspension of writs.
- Martial Law is declared in specific area of country or State.
Exceptions to Fundamental Rights.
- Saving of Laws Providing for Acquisition of Estates, etc.:
- Art 31A declares 5 category of laws immune from invalidation in violation of Art 14 & Art 19 : acquisition of Estates, State management of properties, amalgamation of Corporations, rights of shareholders & directors of Corporations, modification of mining leases.
- Provides for payment of compensation on market values.
- Art 31B gives immunity to laws placed in 9th Schedule.
- In I. R. Coelho case (2007), SC declared laws 9th Sch laws violating FR under Art 14, 15, 19, 21 & Basic Structure can be challenged.
- Art 31C declares laws made to achieve DPSP under Art 39(b) & 39(c) (equal distribution of wealth) cannot be challenged in violation of Art 14 & 19.
Right To Equality.
Introduction.
- Article 14-18.
- Article 14 – Equality before Law & Equal protection of laws.
- Article 15 – Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.
- Article 16 – Equality of Opportunity in matters of Public Employment.
- Article 17 – Abolition of Untouchability & prohibition of its practice.
- Article 18 – Abolition of titles except military & academic.
Equality before Law & Equal protection of laws.
- Art 14 guarantees equality before Law & Equal protection of laws for all (including foreigners, Corporations, organisations, societies, etc).
- Equality before Law : Absence of special privileges/Equal subjection of all to law/No person is above the Law. — is of British Origin.
- Equal protection of Law : Equal treatment under equal circumstances/ similar application of laws on people similarly situated/like treated alike.
- Based on Rule of Law – Art 14 is part of Basic Structure of Constitution.
- Exceptions to Equality :
- Art 361 – Prez & Gov – enjoy immunity for all exec actions / no criminal cases or arrest during office / 2 months notice before private civil case.
- Art 361A – media publication of true report of Leg proceedings.
- Art 105 & 194 – immunity to MPs & MLA/MLC for speech/vote in Leg.
- Art 31C – Art 14 not app to laws made under Art 39(b)&(c).
- Foreign and UN diplomats have diplomatic immunity.
Prohibition of Discrimination on Certain Grounds.
- Art 15 bans discrimination only on grounds of religion, race, caste, sex or place of birth. – discrimination on other grounds is not prohibited.
- Prohibits subjection to any disability, liability, restriction or condition on same grounds from – access to shops, restaurants, hotels & places of public entertainment / use of wells, tanks, etc maintained or constructed by State.
- Exceptions : permits Special provision for Women, children, SC, ST, OBC.
- 93rd Amendment introduced 27% OBC qouta. SC directed Centre to exclude Creamy Layer from the OBC category.
- Creamy Layer : Children of persons —holding Constitutional Positions – Prez, VP, Judges, etc. ; Group A /Class I & Group B/Class ll Officers of All India, Central & State Services, equivalent positions in PSUs, Banks, Univs, etc. ; Ranking in or above Colonel and equivalent posts in Armed Forces; Professionals like doctors, lawyers, engineers, etc; holding properties above a certain limit; with Gross annual income of 6 lacs and above.
Equality of Opportunity in Public Employment.
- Provided in Art 16 without discrimination of religion, caste, race, sex, etc.
- Exceptions : Parliament can prescribe residence as condition/reservation for backward classes/reservation of religious office for members of the religion.
- Mandal Commission & Aftermath : Second Backward Classes Commission under chairmanship of B. P. Mandal was set up in 1979.
- 1990 – 27% OBC quota made. 1991 – economic criteria adopted for OBC quota & 10% quota for economically weaker High Castes made.
- 1992 – in Mandal Case, SC 10% poor high caste quota / directed creamy layer to be removed / banned reservation in promotion / 50% quota limit set / ‘carry forward rule’ for backlog vacancies limited to 50% / directed for Permanent Statutory body to examine complaints.
- 1993 – National Commission for Backward Classes estb.
- 1995 – 77th Amendment allowed reservations in promotion.
- 2000 – 81st Amd nullified backlog vacancy ruling.
Abolition of Untouchability.
- Art 17 bans Untouchability; punishable by Law.
- Untouchability (offences) Act, 1955 amemended & renamed in 1976 as Protection of Civil Rights Act, 1955 :
- The Act (nor the Constitution) define the term ‘Untouchability’.
- Offencers a n be punished by imprisonment upto 6 months or by fine upto ₹500 or both.
- Offences : preventing person from place of worship / justifying Untouchability / denying access to shops, hotels, etc/ insulting member of SC on grounds of Untouchability/ refusing admission to hospitals, educational institutions or hostel estb for public benefit / preaching Untouchability / refusing to sell good & services.
Abolition of Titles.
- Art 18 abolishes titles & makes four provisions :
- Prohibits State from conferring titles (except military & academic).
- Citizens prohibited from accepting titles from any foreign State.
- Foreigner holding Office of Profit under Govt must take President’s permission before accepting any titles from a foreign State.
- Prohibits Citizens & foreigners holding any office of profit under Govt to accept any presents, emoluments or office from foreign State without President’s permission.
Right to Freedom.
Introduction.
- Article 19-22.
- Art 19 – Protection of Six Rights : speech & expression/ Assembly / Association / Movement / Residence / Profession.
- Art 20 – Protection in respect of conviction for offences.
- Art 21 – Protection of life & liberty.
- Art 21A – Right to Elementary Education.
- Art 22 – Protection against arrest & detention in certain cases.
Protection of Six Rights.
- Art 19 guarantees Six rights. Originally contained a 7th right to acquire, hold & dispose of property, which was deleted by 44th Amd of 1978.
- Available only for Citizens against State only, not against individuals.
- Can only be restricted by Reasonable Restrictions as mentioned in Art 19.
- Freedom of Speech & Expression :
- Includes Right to express views/ Freedom of press/Freedom of commercial adverts/Right against tapping of telephonic conversation/to telecast/against bundh/to know about Govt activities/Freedom of silence/against pre-censorship of newspaper/to demonstrate or picketing but not to strike.
- State can impose reasonable restrictions on speech & expression on the grounds of protecting sovereignty & integrity of India, security of State, friendly relations with foreign states, public order, decency or morality, contempt of court, & incitement to an offence.
- Right to public meetings, demonstrations & to take out processions.
- State can impose reasonable restrictions to protect sovereignty & integrity & public order including maintenance of traffic.
- Section 144 of CrPC can restrain assembly, meeting or procession on risk of danger to human life, riot, obstruction or any affray.
- Section 141 of IPC restricts assembly of 5 or more people if object is to resist execution of law; forcibly occupy property of some person; to commit any mischief or criminal trespass; to force some person to do illegal act; to threaten Govt officials for exercising lawful powers.
- Right not to join or form associations or organisations.
- Can be restricted to protect sovereignty, integrity, pub order, morality.
- Right to obtain recognition of association is not a Fundamental Right.
- 2 grounds of restriction – to protect interests of general public & ST.
- SC validated restriction on grounds of Public Health.
- Same grounds of restriction as Freedom of Movement.
- Restrictions in interest of General Public.
- State empowered to prescribe a professional or technical qualification for practicing any profession.
- State has power to restrict private participation in a field of business.
- The Right does not include doing a profession which is immoral or dangerous.
Protection in Respect of Conviction for Offences.
- Art 20 protects all against arbitrary arrest & excessive punishment.
- No ex-post-facto law : Conviction & punishment only in accordance to law in force at the time of commitment of criminal offence.
- No double jeopardy : prosecution & punishment only once for offence.
- No self-incrimination : no compulsion to be witness against self.
Protection of Life & Liberty.
- Art 21 – no person shall be deprived of personal life or liberty except through procedure established by law.
- Gopalan Case (1950)- SC held Art 21 only against arbitrary exec action & not against leg. So laws made by leg could arbitrarily deprive life & liberty.
- Menaka Case (1978)- SC ruled that laws must be reasonable, just & fair.
- Art 21 includes Right to – Live with human dignity/decent environment/livelihood/privacy/shelter/health/free edu upto 14/free legal aid/agn solitary confinement/speedy trial/agn handcuffing/agn inhuman treatment/agn delayed execution/travel abroad/agn bonded labour/agn custodial harassment/Emergency medical aid/timely treatment in Govt hospital/agn being driven out of State/fair trail/prisoner to have necessities of life/women be treated with decency & dignity/agn public hanging/hearing/info/reputation/appeal/sleep/electricity/social security & protection of family/agn bar fetters/agn noise pollution/life insurance/soc-econ justice.
Right to Education.
- Art 21A – Free & compulsory education to all between 6 to 14 years.
- Added through 86th Amd, 2002, only provides Right to Elementary Edu.
- Amended Art 45 DPSP to ‘providing early childhood care’ from Edu.
- Added Art 51A – Fund Duty to provide Edu between 6 to 14 years.
Protection against Arrest and Detention.
- Art 22 – grants protection to persons who are detained or arrested.
- Detention is of two types – Punitive detention (punishment after crime by court through trial) & Preventive Detention (detention before crime)
- Arrested person has Right to be informed on grounds of arrest/to consult & be defended by a lawyer/to be released after 24 hrs unless magistrate specifies for extention of arrest.
- Not applicable to enemy Aliens, Preventive Detention cases, arrest under court orders, civil arrest, income tax case, alien deportation case.
- Detention cannot exceed 3 months unless an advisory board (consisting of HC judges) specifies so in its report.
- Grounds of detention have to be told to detained person except if doing so would be against public interest.
- Detenu must be allowed to make representation against detention.
Right Against Exploitation.
- Article 23-24.
- Art 23 – Prohibition of traffic in human beings & forced labour.
- Art 24 – Prohibition of employment of children in factories, etc.
Prohibition of Traffic in Human Beings & Forced Labour.
- Art 23 prohibits human trafficking, begar & other forms of forced labour.
- Offence punishable in accordance to law.
- Right available to All against State & private Individuals & organisations.
- Human Trafficking includes : Selling – buying of men, women, children/immoral traffic in women & children, prostitution/devadasis/slavery.
- Begar – work without pay.
- Forced or Bonded Labour – includes physically forced labour & force arising from compulsion of economic circumstances.
- Laws enacted by Parliament – Immoral Traffic (Prevention) Act, 1956 / Bonded Labour System (Abolition) Act, 1976/ Minimum Wages Act, 1948/Contract Labour Act, 1970/ Equal Remuneration Act, 1976.
- Art 23 exception – State can impose compulsory military or social service.
Prohibition of Employment of Children in Factories, etc.
- Art 24 – prohibits employment of children below 14 years in factories, mines, or other hazardous activities like construction work or Railways.
- Does not prohibit employment in a non-hazardous work.
- SC in 1996 directed establishment of Child Labour Rehabilitation Welfare Fund – Offender deposits fine of ₹20,000 per child employed.
- National & State Commissions for Protection of Child Rights & Children’s Courts – estb in 2005 Act, for speedy trial of offences.
- Child Labour (Prohibition & Regulation) Act, 1986 was amended in 2016, renamed as Child & Adolescent Labour (Prohibition & Regulation) Act, 1986-
- Prohibits employment of children below 14 years for any occupation.
- Prohibits employment of adolescents (14-18 yrs) in certain hazardous occupations.
- Imprisonment of 6 months to 2 yrs, or fine of ₹20000 to ₹50000 or both.
- Repeated offences – imprisonment for 1 to 3 years.
Right to Freedom of Religion.
- Article 25-28.
- Art 25 – Freedom of Conscience & free profession, practice & propagation of religion.
- Art 26 – Freedom to manage Religious Affairs.
- Art 27 – Freedom from Payment of taxes for promotion of any religion.
- Art 28 – Freedom from attending religious instruction or worship in certain educational institutions.
Freedom of Conscience & Free Profession, Practice & Propagation of Religion.
- Art 25 – equal rights to citizens & non-citizens.
- Freedom of Conscience : inner freedom of person to mould religious mindset.
- Freedom to profess : Open & free declaration of faith & religious beliefs.
- Right to Practice : performing rituals, ceremonies, worshipping, etc.
- Right to propagate : preaching & promoting religious belief (except by force).
- Exceptions : Subject to public order, health, morality, Fundamental rights.
- State can restrict economic, financial, political activity associated with religious practice.
- State can provide for social welfare & reform or throw open Hindu Religious institutions of public character to all classes & sections of Hindus.
Freedom to Manage Religious Affairs.
- Art 26 – All religious denominations & their sects will have following rights :
- Right to estb or maintain inst. for religious or charitable purposes.
- Right to manage it own religious affairs.
- Right to own & acquire movable & immovable property.
- Right to administer such owned property in accordance with law.
- Should be a collection of individuals with system of beliefs conducive to their spiritual wellbeing.
- Should have a common organisation.
- Should be designated by a distinctive name.
Freedom from Taxation for Promotion of Religion
- Art 27 – No person shall be compelled to pay tax for promotion of religion.
- State cannot use public money to promote or maintain any one religion, however state can promote or maintain All religions.
- It does not prohibit collection of fees only of taxes.
Freedom from Attending Religious Instruction
- Art 28 – no religious instruction in educational Institutions maintained by State funds. Does not apply on inst. admin by State but estb under endowment or trust, requiring imparting of religious instruction.
- Person cannot be forced to attend religious instruction in State inst.
- Art 28 gives 4 edu inst. – (a) Institutions wholly maintained by State/(b) Institute admin by the State/(c) Inst recognised by the State/(d) Inst receiving State aid.
- In (a) religious instruction prohibited/ in (b) religious instruction permitted /in (c) & (d) religious instruction permitted on a voluntary basis.
Cultural & Educational Rights
- Article 29-30.
- Art 29 – Protection of language, script & culture of minorities.
- Art 30 – Rights of Minorities to establish & administer educational institutions.
Protection of Interests of Minorities.
- Art 29 – any section of citizen has the right to preserve their own distinct language, script or culture.
- No citizen will be denied admission into Edu inst, partly or wholly maintained by the State, on the basis of their religion, caste, race or lang.
- Grants protection to both religious & linguistic minorities.
- SC held that this Right also applies to majority.
- SC also held that Right to conserve land also includes Right to to agitate for the protection of language, therefore, political speeches promising the same will not amount to corrupt practice under Representation of the People Act, 1951.
Right of minorities to estb & admin Edu Inst.
- Art 30 – grants following rights to religious & linguistic minorities.
- Right to estb & admin Edu Inst of their choice.
- The compensation amount fixed for acquisition of minority Edu inst property by the State shall not violate their Right. (44th Amd, 1978).
- State cannot discriminate against minority inst in granting aid.
- Inst that seek recog & aid from State (Subject to regulation by State).
- Inst that seek only recognition. (Subject to regulation by State).
- Inst thag neither seek aid nor recognition from State (only subject to general law).
- The right of minorities to estb & admin Edu Inst includes : Right to choose its governing body/to appoint teaching & non-teaching staff/to admit eligible students of their choice & set reasonable fees/to use its assets for benefit of the institution.
- Art 30 is only to ensure equality & not estb dominance over majority, so general laws of the land apply on all.
- Art 30 is not absolute, therefore State can set regulations to prevent maladministration, to maintain education standards, welfare of students & staff, to prevent Exploitation, to set syllabus & curriculum of study. Such regulations does not interfere with Art 30.
- Subject to regulations being met, unaided minority inst will have right to appoint teaching & non-teaching staff.
- Extention of aid does by State does not alter the nature & character of the minority Edu inst.
Right to Constitutional Remedies.
- Article 32 – Right to move the Supreme Court for the enforcement of the Fundamental Rights including the writs of
- Habeas Corpus.
- Mandamus.
- Prohibition.
- Certiorari.
- Quo warranto.
Constitutional Provisions.
- Right to move SC by appropriate proceedings for the enforcement of Fundamental Rights.
- SC will have power to issue directions or orders or writs for enforcement of Fundamental Rights.
- Parliament can empower any Court (apart from HC which are already empowered by Art 226) with similar powers without reducing powers of SC.
- Right under Art 32 to move courts can be suspended during National Emergency (Art 359).
- Only Fundamental Rights can be enforced through Art 32.
- Both Supreme Court & High Court have original jurisdiction in cases related to violation of Fundamental Rights.
Writs.
- Writs are written orders issued by court to protect Fundamental Rights.
- SC (Art 32) & HC (Art 226) can issue writs.
- Borrowed from British Constitution.
- SC can issue writs only to enforce Fund Rts, but HC can issue writs for legal rights as well.
- SC can issue writs to person or Govt in entire territory of India, HC can issue writs to persons or Govt inside their respective State or UT territories or to persons or Govt outside if cause of action arises within their respective state or UT territory.
- SC under Art 32 (being a Fundamental Right) is bound to issue writs in cases of violation of Fund Rts. HC under Art 226 has discretionary power & may refuse to issue writs.
Types of Writs.
- Five writs are available to both SC & HC (& any Court empowered by Parl.) :
- Habeas Corpus : “to have the body of”.
- Order issued to any person who has detained another person to bring the body of the latter before the court to determine its legality.
- Can be issued against public authorities & private Individuals.
- Not issued when : detention is lawful/proceeding is for contempt of leg or court/detention is by competent court/detention is outside territory.
- Issued to a public official asking to perform his duty which he may have failed or refused to do.
- Also issued to any public body, Corp, inferior Court, tribunal or Govt.
- Cannot be issued : to enforce departmental instruction which doesn’t have statutory force/against private indv or body/when duty is discretionary/to enforce contract/against Prez or Gov or CJ of HC.
- Issued by higher court to lower court or tribunal to prevent the later from exceeding its jurisdiction.
- Issued to lower court or tribunal to transfer a case to issuing authority or to quash the order of the Court or tribunal, on grounds of excess or lack of jurisdiction or error of law – also available agn admin authority.
- Both Preventive & Curative in nature.
- Issued to enquire into legality of claim of a person to a public office.
- Only in case of substantive public office of permanent character created by a statute or the Constitution.
- Can be sought by any interested person not necessarily aggrieved.
Criticism & Significance.
Criticisms of Fundamental Rights.
- Excessive Limitations: Subjected innumerable exceptions, restrictions, qualifications & explanations.
- No Social & Economic Rights: Mainly consists Political Rights. Social Rights like Right to Social Security, work, employment, rest & leisure, etc are not comprehensive, unlike other advanced Democratic Constitutions.
- No Clarity: Vaguely defined – terms like ‘public order’, ‘minorities’, reasonable restrictions, ‘public interest’ not defined. Complicated lang used.
- No Permanency: Not sacrosanct. Can be abolished. ‘Doctrine of Basic Structure’ is only protection of Fundamental Rights.
- Suspension during Emergency: Suspension of Fundamental Rights during Emergency is against Democratic values & is autocratic.
- Expensive Remedy: Judicial Process for appeal is very expensive.
- Preventive Detention: Hampers spirit of Fundamental Rights. Gives arbitrary powers to the State by making Prev Detention Constitutional.
Significance of Fundamental Rights.
- Bedrock of Democratic system in India.
- Provides material & moral protection to human beings.
- Formidable bulwark of individual liberty.
- Establish Rule of Law in the country.
- Protect minorities & weaker sections.
- Strengthen Secular fabric of Indian State.
- Check the absoluteness of the authority of the Govt.
- Foundation of Social equality & social justice.
- Ensure dignity & respect of individuals.
- Facilitate participation of people in political & administrative process.
Rights outside of Part-lll.
- Rights outside of Part-lll are known as Constitutional or Legal Rights :
- Article 256 in Part-Xll — No tax shall be levied or collected except by authority of law.
- Article 300-A in Part-Xll — No person shall be deprived of his property save by authority of law.
- Article 301 in Part-Xlll — Trade, commerce & intercourse throughout the Territory of India shall be free.
- Article 326 in Part XV — The elections to the Lok Sabha & the State Legislative Assemblies shall be on the basis of Adult Suffrage.
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