Fundamental Rights

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  • The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35.
  • In this regard, the framers of the Constitution derived inspiration from the Constitution of USA (Bill of Rights).
  • Part III of the Constitution is rightly described as the Magna Carta of India.
  • It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights.
  • They uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation.
  • The Fundamental Rights are meant for promoting the ideal of political democracy.
  • They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State.
  • Aim at establishing ‘a government of laws and not of men’.
  • 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 individuals

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  • Originally, the Constitution provided for seven Fundamental Rights
  1. Right to equality (Articles 14–18)
  2. Right to freedom (Articles 19–22)
  3. Right against exploitation (Articles 23–24)
  4. Right to freedom of religion (Articles 25–28)
  5. Cultural and educational rights (Articles 29–30)
  6. Right to property (Article 31)
  7. Right to constitutional remedies (Article 32)

 

  • However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978.
  • It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

 

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Features of Fundamental Rights

  • Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
  • Fundamental rights are not absolute but qualified.
  • The state can impose reasonable restrictions on them.
  • Such restrictions are reasonable or not is to be decided by the courts.
  • Most of them are available against the arbitrary action of the State
  • Some of them are negative in character, which place limitations on the authority of the State
  • They are justiciable, allowing persons to move the courts
  • Fundamental rights are defended and guaranteed by the Supreme Court
  • They are not sacrosanct or permanent.
  • The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act.
  • Amendment can be done without affecting the ‘basic structure’ of the Constitution.
  • They can be suspended during the operation of a National Emergency except Articles 20 and 21.
  • The six rights guaranteed by Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression
  • Their application to the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).
  • Their application can be restricted while martial law is in force in any area.
  • Martial law means ‘military rule’ as per Article 34
  • Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them.
  • Such a law can be made only by the Parliament and not by state legislatures
  • The uniformity must maintain throughout the country (Article 35).

 

 

Definition of State

  • Article 12 has defined the term ‘State’ for the purposes of Part III.
  • According to it, the State includes the following:
    • Government and Parliament of India
      • Executive and legislative organs of the Union government.
    • Government and legislature of states
      • Executive and legislative organs of state government.
    • All local authorities
      • Municipalities, panchayats, district boards, improvement trusts, etc.
    • All other authorities
      • Statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
  • Thus, State has been defined in a wider sense so as to include all its agencies.
  • It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.
  • According to the Supreme Court, a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.

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Laws Inconsistent with Fundamental Rights
  • Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void.
  • It  expressively provides for the doctrine of judicial review.
  • Supreme Court (Article 32) and the high courts (Article 226) have the power to declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.
  • The term ‘law’ in Article 13 has been given a wide meaning as following:
    • Permanent laws enacted by the Parliament or the state legislatures
    • Temporary laws like ordinances issued by the president or the state governors
    • Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification
    • Non-legislative sources of law, that is, custom or usage having the force of law.

 

 

FR available only to citizens and not to foreigners

  1. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15)
  2. Equality of opportunity in matters of public employment (Article 16)
  3. Protection of six rights regarding freedom (Article 19)
  4. Protection of language, script and culture of minorities (Article 29)
  5. Right of minorities to establish and administer educational institutions (Article 30)

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Right to Equality article 14 article 15

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Right to Equality

Equality before Law and Equal Protection of Laws

  • Article 14
  • State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
  • This provision confers rights on all persons whether citizens or foreigners

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Equality before law

  • It is of British origin
  • Absence of any special privileges in favour of any person

 

Equal protection of laws

  • It has been taken from the American Constitution
  • The equality of treatment under equal circumstances
  • The similar application of the same laws to all persons who are similarly situated

 

Rule of Law

  • ‘Equality before law’ is an element of the concept of ‘Rule of Law’
  • It propounded by A.V. Dicey
    • Absence of arbitrary power, that is, no man can be punished except for a breach of law.
    • Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts
  • In the Indian System, the constitution is the source of the individual rights.
  • The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution.
  • Hence, it cannot be destroyed even by an amendment.

 

Exceptions to Equality

  • The rule of equality before law is not absolute
  • There are constitutional and other exceptions to it.
  1. The President of India and the Governor of States enjoy the following immunities (Article 361):
    1. The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.
    2. No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.
    3. No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office.
    4. No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after he entered upon his office, until the expiration of two months next after notice has been delivered to him.
  2. No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State (Article 361-A).
  3. No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105).
  4. No member of the Legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof (Article 194).
  5. Article 31-C is an exception to Article 14.
    • It provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14.
    • The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”.
  6. The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from criminal and civil proceedings.
  7. The UNO and its agencies enjoy the diplomatic immunity.

 

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Prohibition of Discrimination on Certain Grounds

  • Article 15
  • State shall not discriminate any citizen on grounds only of
    • Religion
    • Race
    • Caste
    • Sex
    • Place of birth
  • The two crucial words in this provision are ‘discrimination’ and ‘only’.
    • The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish un-favorably from others’.
    • The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.
  • The 2nd provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to
    • Access to shops, public restaurants, hotels and places of public entertainment
    • The use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.
  • 2nd provision prohibits discrimination both by the State and private individuals
  • 1st provision prohibits discrimination only by the State.

 

Exceptions

  • There are three exceptions to this general rule of non-discrimination:
  1. The state is permitted to make any special provision for women and children.
    • Ex- reservation of seats for women in local bodies, free education for children.
  2. The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens
    • Ex- reservation of seats, fee concessions in public educational institutions.
  3. Special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions
    1. Public and private educational institutions
    2. Aided or unaided by the state
    • It except the minority educational institutions.
  • 3rd provision was added by the 93rd Amendment Act of 2005.

 

Creamy Layer

  • The children of the following different categories of people belong to ‘creamy layer’ among OBCs and thus will not get the quota benefit

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Equality of Opportunity in Public Employment

  • Article 16
  • It provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State.
  • No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.

 

Exceptions

  • There are three exceptions to this general rule of equality of opportunity in public employment:
  1. Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority.
    • As the Public Employment (Requirement as to Residence) Act of 1957 expired in 1974
    • There is no such provision for any state except Andhra Pradesh and Telangana
  2. Reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
  3. An office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

 

Mandal Commission and Aftermath

  • In 1979, the Morarji Desai Government appointed the Second Backward Classes Commission
  • It was under the chairmanship of B P Mandal, in terms of Article 340
  • The commission submitted its report in 1980
  • It identified as many as 3743 castes as socially and educationally backward classes.
  • They constitute nearly 52% component of the population, excluding the scheduled castes (SCs) and the scheduled tribes (STs).
  • The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs)
  • So that the total reservation for all (SCs, STs and OBCs) amounts to 50%.
  • After ten years in 1990 that the V P Singh Government  declared reservation of 27% government jobs for the OBCs.

 

  • Ram Nandan Committee was appointed to identify the creamy layer among the OBCs.
    • It submitted its report in 1993, which was accepted.
  • National Commission for Backward Classes was established in 1993 by an act of Parliament.
  • The 77th Amendment Act was enacted in 1995.
  • The ruling with regard to backlog vacancies was nullified by the 81st Amendment Act of 2000.
    • It ends the 50% ceiling on reservation in backlog vacancies.
  • The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 per cent of reservation, far  exceeding the 50 per cent ceiling

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Abolition of Untouchability

  • Article 17
  • It abolishes ‘untouchability’ and forbids its practice in any form.
  • The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.
  • In 1976, the Untouchability (Offences ) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955
  • It enlarge the scope and make penal provisions more stringent.
  • The Mysore High Court held that the subject matter of Article 17 is not untouchability in its literal or grammatical sense but the ‘practice as it had developed historically in the country’.
  • It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes.
  • It does not cover social boycott of a few individuals or their exclusion from religious services, etc.
  • Under the Protection of Civil Rights Act (1955), the offences committed on the ground of untouchability are punishable either by imprisonment up to 6 months or by fine up to 500 or both.
  • A person convicted of the offence of ‘untouchability’ is disqualified for election to the Parliament or state legislature.

 

  1. preventing any person from entering any place of public worship or from worshipping therein;
  2. justifying untouchability on traditional, religious, philosophical or other grounds;
  3. denying access to any shop, hotel or places of public entertainment;
  4. insulting a person belonging to scheduled caste on the ground of untouchability;
  5. refusing to admit persons in hospitals, educational institutions or hostels established for public benefit;
  6. preaching untouchability directly or indirectly
  7. refusing to sell goods or render services to any person.

 

  • The Supreme Court held that the right under Article 17 is available against private individuals
  • It is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.

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Abolition of Titles

  • Article 18
  • It prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner.
  • It prohibits a citizen of India from accepting any title from any foreign state.
  • A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
  • No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.

 

  • Hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial States are banned by Article 18
  • In 1996, the Supreme Court upheld the constitutional validity of the National Awards—Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri.
  • It ruled that these awards do not amount to ‘titles’ within the meaning of Article 18 that prohibits only hereditary titles of nobility.
  • Article 18 as the theory of equality does not mandate that merit should not be recognised.
  • They should not be used as suffixes or prefixes to the names of awardees.
  • These National Awards were instituted in 1954.
  • The Janata Party government headed by Morarji Desai discontinued them in 1977.
  • But they were again revived in 1980 by the Indira Gandhi government.

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Right to Freedom

Protection of Six Rights

  • Article 19 guarantees to all citizens the six rights
  1. Right to freedom of speech and expression.
  2. Right to assemble peaceably and without arms.
  3. Right to form associations or unions or co-operative societies.
  4. Right to move freely throughout the territory of India.
  5. Right to reside and settle in any part of the territory of India.
  6. Right to practice any profession or to carry on any occupation, trade or business.
  • Originally, Article 19 contained seven rights.
  • But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.
  • These six rights are protected against only state action and not private individuals.
  • These rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc.
  • The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in the Article 19 itself only.

 

 

 

Freedom of Speech and Expression

  • It implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner.
  • Right to propagate one’s views as well as views of others.
  • Freedom of the press.
  • Freedom of commercial advertisements.
  • Right against tapping of telephonic conversation.
  • Right to telecast, that is, government has no monopoly on electronic media.
  • Right against bundh called by a political party or organisation.
  • Right to know about government activities.
  • Freedom of silence.
  • Right against imposition of pre-censorship on a newspaper.
  • Right to demonstration or picketing but not right to strike.

 

  • The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the grounds of
    • Sovereignty and integrity of India
    • Security of the state
    • Friendly relations with foreign states
    • Public order
    • Decency or morality
    • Contempt of court
    • Defamation
    • Incitement to an offence.

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Freedom of Assembly

  • Every citizen has the right to assemble peaceably and without arms.
  • It includes the right to hold public meetings, demonstrations and take out processions.
  • This freedom can be exercised only on public land
  • This right does not include the right to strike.
  • Reasonable restrictions on right of assembly on two grounds
    • Sovereignty and integrity of India
    • Public order including the maintenance of traffic

 

 

Freedom of Association

  • All citizens have the right to form associations or unions or co-operative societies.
  • It includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions or anybody of persons.
  • It covers the negative right of not to form or join an association or union.
  • Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty and integrity of India, public order and morality.
  • The right to obtain recognition of the association is not a fundamental right.
  • The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out.
  • The right to strike can be controlled by an appropriate industrial law.

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Freedom of Movement

  • This freedom entitles every citizen to move freely throughout the territory of the country.
  • This right underline the idea that India is one unit so far as the citizens are concerned.
  • It promotes national feeling and not parochialism.
  • The grounds of imposing reasonable restrictions on this freedom are two
    • Interests of general public
    • Protection of interests of any scheduled tribe
  • The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes
  • It also safeguard their traditional vocation and properties against exploitation.
  • The Supreme Court held that the freedom of movement of prostitutes can be restricted on the ground of public health and in the interest of public morals.
  • The Bombay High Court validated the restrictions on the movement of persons affected by AIDS.
  • The freedom of movement has two dimensions
    • Internal (right to move inside the country)
    • External (right to move out and come back to the country).
  • Article 19 protects only the 1st dimension.
  • The 2nd dimension is dealt by Article 21 (right to life and personal liberty).

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Freedom of Residence

  • Every citizen has the right to reside and settle in any part of the territory of the country.
  • This right has two parts
    1. The right to  reside in any part of the country (stay temporarily)
    2. The right to settle in any part of the country (set up a home permanently)
  • This right is intended to remove internal barriers within the country or between any of its parts.
  • This promotes nationalism and avoids narrow mindedness.
  • Reasonable restrictions on two grounds
    • The interest of general public
    • The protection of interests of any scheduled tribes.

 

 

Freedom of Profession, etc.

  • All citizens are given the right to practice any profession or to carry on any occupation, trade or business.
  • This right is very wide as it covers all the means of earning one’s livelihood.
  • The State can impose reasonable restrictions on the exercise of this right in the interest of the general public.
  • Further, the State is empowered to
    1. Prescribe professional or technical qualifications necessary for practicing any profession or trade
    2. Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.
  • Thus, no objection can be made when the State carries on a trade, business, industry or service either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizen.
  • The State is not required to justify its monopoly.
  • This right does not include the right to carry on a profession or business or trade or occupation that is immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc,).
  • The State can absolutely prohibit these or regulate them through licensing.

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Protection in Respect of Conviction for Offences

  • Article 20
  • It grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation.
  • It contains three provisions in that direction:
    • No expostfacto law: No person shall be
      • Convicted of any offence except for violation of a law in force at the time 
      • Subjected to a penalty greater than that prescribed by the law in force
    • No double jeopardy
      • No person shall be prosecuted and punished for the same offence more than once.
    • No self-incrimination
      • No person accused of any offence shall be compelled to be a witness against himself.
  • An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is, upon acts already done or which increases the penalties for such acts.
  • The enactment of such a law is prohibited by the first provision of Article 20.
  • This limitation is imposed only on criminal laws and not on civil laws or tax laws.
  • In other words, a civil liability or a tax can be imposed retrospectively.
  • This provision prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial thereof.
  • The protection (immunity) under this provision cannot be claimed in case of preventive detention or demanding security from a person.
  • The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal.
  • It is not available in proceedings before departmental or administrative authorities as they are not of judicial nature.
  • The protection against self-incrimination extends to both oral evidence and documentary evidence.
  • However, it does not extend to
    • Compulsory production of material objects,
    • Compulsion to give thumb impression, specimen signature, blood specimens,
    • Compulsory exhibition of the body.
  • Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.

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Protection of Life and Personal Liberty

  • Article 21
  • It declares that no person shall be deprived of his life or personal liberty except according to procedure established by law.
  • This right is available to both citizens and non-citizens.

 

Gopalan Case (1950)

  • The Supreme Court has taken a narrow interpretation of the Article 21.
  • It held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.
  • This means that the State can deprive the right to life and personal liberty of a person based on a law.
  • This is because of the expression ‘procedure established by law’ in Article 21, which is different from the expression ‘due process of law’ contained in the American Constitution.
  • Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair or unjust.
  • Secondly, the Supreme Court held that the ‘personal liberty’ means only liberty relating to the person or body of the individual.

 

Menaka Case (1978)

  • The Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21.
  • Therefore, it ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just.
  • In other words, it has introduced the American expression ‘due process of law’
  • In effect, the protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action.
  • The court held that the ‘right to life’ as embodied in Article 21 is not merely confined to animal existence or survival
  • It includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living.
  • It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.
  • The Supreme Court has reaffirmed its judgment in the Menaka case in the subsequent cases.
  • It has declared the following rights as part of Article 21
  • Right to live with human dignity.
  1. Right to decent environment including pollution free water and air and protection against hazardous industries.
  2. Right to livelihood.
  3. Right to privacy.
  4. Right to shelter.
  5. Right to health.
  6. Right to free education up to 14 years of age.
  7. Right to free legal aid.
  8. Right against solitary confinement.
  9. Right to speedy trial.
  10. Right against handcuffing.
  11. Right against inhuman treatment.
  12. Right against delayed execution.
  13. Right to travel abroad.
  14. Right against bonded labour.
  15. Right against custodial harassment.
  16. Right to emergency medical aid.
  17. Right to timely medical treatment in government hospital.
  18. Right not to be driven out of a state.
  19. Right to fair trial.
  20. Right of prisoner to have necessities of life.
  21. Right of women to be treated with decency and dignity.
  22. Right against public hanging.
  23. Right to hearing.
  24. Right to information.
  25. Right to reputation.
  26. Right of appeal from a judgement of conviction
  27. Right to social security and protection of the family
  28. Right to social and economic justice and empowerment
  29. Right against bar fetters
  30. Right to appropriate life insurance policy
  31. Right to sleep
  32. Right to freedom from noise pollution
  33. Right to electricity

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Right to Education Article 21A Article 15

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Right to Education

  • Article 21 A
  • It declares that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such a manner as the State may determine.
  • This provision was added by the 86th Constitutional Amendment Act of 2002.
  • This amendment is a major milestone in the country’s aim to achieve ‘Education for All’.
  • The government described this step as ‘the dawn of the second revolution in the chapter of citizens’ rights’.
  • This amendment changed the subject matter of Article 45 in directive principles.
  • In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009.
  • This Act seeks to provide that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school

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Protection Against Arrest and Detention

  • Article 22
  • It grants protection to persons who are arrested or detained.
  • Detention is of two types, namely, punitive and preventive.
  • Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.
  • Preventive detention means, detention of a person without trial and conviction by a court.
  • Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.
  • Thus, preventive detention is only a precautionary measure and based on suspicion.

 

  • The 1st part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:
    1. Right to be informed of the grounds of arrest.
    2. Right to consult and be defended by a legal practitioner.
    3. Right to be produced before a magistrate within 24 hours, excluding the journey time.
    4. Right to be released after 24 hours unless the magistrate authorises further detention.
  • These safeguards are not available to an enemy alien or a person
  • The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien.
  • They apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest.

 

  • 2nd part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law.
  • This protection is available to both citizens as well as aliens and includes the following:
  1. The detention of a person cannot exceed 3 months unless an advisory board reports sufficient cause for extended detention.
    • The board is to consist of judges of a high court.
  2. The grounds of detention should be communicated to the detenu.
    • However, the facts considered to be against the public interest need not be disclosed.
  3. The detenu should be afforded an opportunity to make a representation against the detention order.

 

  • Article 22 also authorises the Parliament to prescribe
    • The circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board
    • The maximum period for which a person can be detained in any classes of cases under a preventive detention law
    • The procedure to be followed by an advisory board in an inquiry.

 

  • The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months.
  • However, this provision has not yet been brought into force, hence, the original period of three months still continues.
  • The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defense, foreign affairs and the security of India.
  • Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for
    • Reasons connected with the security of a state,
    • The maintenance of public order
    • The maintenance of supplies and services essential to the community

 

  • Some preventive detention laws made by the Parliament are
    • Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.
    • Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.
    • Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.
  • It is unfortunate to know that no democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India.
  • It is unknown in USA.
  • It was resorted to in Britain only during first and second world war time.
  • In India, preventive detention existed even during the British rule.
  • Ex – Bengal State Prisoners Regulation of 1818 and the Defence of India Act of 1939 provided for preventive detention.

 

 

 

Right against Exploitation

Prohibition of Traffic in Human Beings and Forced Labour

  • Article 23
  • It prohibits traffic in human beings, begar (forced labour) and other similar forms of forced labour.
  • This right is available to both citizens and non-citizens.
  • It protects the individual not only against the State but also against private persons.
  • The expression ‘traffic in human beings’ include
    • Selling and buying of men, women and children like goods
    • Immoral traffic in women and children, including prostitution
    • Devadasis
    • Slavery

 

  • To punish, the Parliament has made the Immoral Traffic  (Prevention) Act13, 1956.
  • The term ‘begar’ means compulsory work without remuneration.
  • In addition to begar, the Article 23 prohibits other ‘similar forms of forced labour’ like ‘bonded labour’.
  • The term ‘forced labour’ means compelling a person to work against his will.
  • The word ‘force’ includes not only physical or legal force but also force arising from the compulsion of economic circumstances, that is, working for less than the minimum wage.
  • Bonded Labour System (Abolition) Act, 1976
  • Minimum Wages Act, 1948
  • Contract Labour Act, 1970
  • Equal Remuneration Act, 1976 were made

 

Exception

  • It permits the State to impose compulsory service for public purposes.
    • Example, military service or social service, for which it is not bound to pay.
  • However, in imposing such service, the State is not permitted to make any discrimination on grounds only of religion, race, caste or class.

 

 

 

Prohibition of Employment of Children in Factories, etc.

  • Article 24
  • It prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway.
  • But it does not prohibit their employment in any harmless or innocent work.
  • In 1996, the Supreme Court directed the establishment of Child Labour Rehabilitation Welfare Fund in which the offending employer should deposit a fine of 20,000 for each child employed by him.
  • It also issued directions for the improvement of education, health and nutrition of children.
  • The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing speedy trial of offences against children or of violation of child rights.
  • In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops, factories, resorts, spas, teashops and so on.
  • It warned that anyone employing children below 14 years of age would be liable for prosecution and penal action.

 

Child Labour Amendment (2016)

  • It amended the Child Labour (Prohibition and Regulation) Act, 1986.
  • It has renamed the Principal Act as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.
  • The Amendment Act prohibits the employment of children below 14 years in all occupations and processes.
  • Earlier, this prohibition was applicable to 18 occupations and 65 processes.
  • Further, the Amendment Act prohibits the employment of adolescents (14 to 18 years of age) in certain hazardous occupations and processes.

 

 

 

Right to Freedom of Religion

Freedom of Conscience and Free Profession, Practice and Propagation of Religion

  • Article 25
  • It says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.
  • The implications of these are
  1. Freedom of conscience
    • Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.
  2. Right to profess
    • Declaration of one’s religious beliefs and faith openly and freely.
  3. Right to practice
    • Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.
  4. Right to propagate
    • Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion.
  • But, it does not include a right to convert another person to one’s own religion.
  • From the above, it is clear that Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals).
  • Moreover, these rights are available to all persons—citizens as well as noncitizens.
  • These rights are subject to public order, morality, health and other provisions relating to fundamental rights.
  • Further, the State is permitted to
    • Regulate or restrict any economic, financial, political or other secular activity associated with religious practice
    • Provide for social welfare and reform or throw open Hindu religious institutions of a public character to all classes and sections of Hindus.
  • Article 25 also contains two explanations
    • Wearing and carrying of kirpans is to be included in the profession of the Sikh religion
    • The Hindus, in this context, include Sikhs, Jains and Buddhists.

 

 

Freedom to Manage Religious Affairs

  • Article 26
  • Every religious denomination or any of its section shall have the following rights
    1. Right to establish and maintain institutions for religious and charitable purposes;
    2. Right to manage its own affairs in matters of religion;
    3. Right to own and acquire movable and immovable property
    4. Right to administer such property in accordance with law
  • Article 25 guarantees rights of individuals, while Article 26 protects collective freedom of religion.

 

 

Freedom from Taxation for Promotion of a Religion

  • Article 27
  • It lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
  • This provision prohibits only levy of a tax and not a fee
  • Thus, a fee can be levied on pilgrims to provide them some special service or safety measures.

 

 

Freedom from Attending Religious Instruction

  • Article 28
  • No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
  • This provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution.
  • Article 28 distinguishes between 4 types of educational institutions
    1. Institutions wholly maintained by the State
    2. Institutions administered by the State but established under any endowment or trust.\
    3. Institutions recognized by the State
    4. Institutions receiving aid from the State
  • In (a) religious instruction is completely prohibited
  • In (b), religious instruction is permitted.
  • In (c) and (d), religious instruction is permitted on a voluntary basis.

 

 

 

Cultural and Educational Rights

Protection of Interests of Minorities

  • Article 29
  • provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same.
  • Further, no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language
  • Article 29 grants protection to both
    • Religious minorities
    • Linguistic minorities
  • However, the Supreme Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly assumed to be.
  • This is because of the use of words ‘section of citizens’ in the Article that include minorities as well as majority.

 

 

Right of Minorities to Establish and Administer Educational Institutions

  • Article 30
  • It grants the following rights to minorities, whether religious or linguistic:
  1. All minorities shall have the right to establish and administer educational institutions of their choice.
  2. The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them.
    • This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard.
    • The Act deleted the right to property as a Fundamental Right (Article 31).
  3. In granting aid, the State shall not discriminate against any educational institution managed by a minority.
  • Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29).
  • The termminority’ has not been defined anywhere in the Constitution.

 

 

 

Rights to Constitutional Remedies

  • Article 32
  • It confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen.
  • The right to get the Fundamental Rights protected is in itself a fundamental right.
  • This makes the fundamental rights real.
  • That is why Dr Ambedkar called Article 32 as the most important article of the Constitution—‘an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it’.
  • The Supreme Court has ruled that Article 32 is a basic feature of the Constitution.
  • Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution.
  • It contains the following 4 provisions
  1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed.
  2. The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights.
    • The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quowarranto.
  3. Parliament can empower any other court to issue directions, orders and writs of all kinds.
  4. President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency(Article 359)

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Right to privacy

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WRITS—TYPES AND SCOPE

  • The Supreme Court (under Article 32) and the high courts (under Article226) can issue the writs of
    • Habeas corpus
    • Mandamus
    • Prohibition
    • Certiorari
    • Quo-warranto
  • Further, the Parliament (under Article 32) can empower any other court to issue these writs.
  • Since no such provision has been made so far, only the Supreme Court and the high courts can issue the writs and not any other court.
  • Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs.
  • Article 226 now empowers all the high courts to issue the writs.
  • These writs are borrowed from English law where they are known as ‘prerogative writs’.
  • They are so called in England as they were issued in the exercise of the prerogative of the King who was, and is still, described as the ‘fountain of justice’.
  • Later, the high court started issuing these writs as extraordinary remedies to uphold the rights and liberties of the British people.
  • The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:
  • The Supreme Court can issue writs only for the enforcement of fundamental rights
  • A high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose.
    • The expression ‘for any other purpose’ refers to the enforcement of an ordinary legal right.
    • Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court.
  • The Supreme Court can issue writs against a person or government throughout the territory of India
  • A high court can issue writs against a person residing or against a government or authority located
    • Within its territorial jurisdiction only
    • Outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.
    • The territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court.
  • A remedy under Article 32 is in itself a Fundamental Right
  • The Supreme Court may not refuse to exercise its writ jurisdiction.
  • On the other hand, a remedy under Article 226 is discretionary
  • A high court may refuse to exercise its writ jurisdiction.
  • Article 32 does not merely confer power on the Supreme Court as Article 226 does on a high court to issue writs for the enforcement of fundamental rights or other rights as part of its general jurisdiction.
  • The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights.

 

Habeas Corpus

  • It is a Latin term which literally means ‘to have the body of’.
  • It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it.
  • The court then examines the cause and legality of detention.
  • It would set the detained person free, if the detention is found to be illegal.
  • Thus, this writ is a bulwark of individual liberty against arbitrary detention.
  • The writ of habeas corpus can be issued against both public authorities as well as private individuals.
  • The writ, on the other hand, is not issued where the
    • Detention is lawful
    • The proceeding is for contempt of a legislature or a court
    • Detention is by a competent court
    • Detention is outside the jurisdiction of the court.

 

Mandamus

  • It literally means ‘we command’.
  • It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.
  • It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
  • The writ of mandamus cannot be issued
    • Against a private individual or body
    • To enforce departmental instruction that does not possess statutory force
    • When the duty is discretionary and not mandatory
    • To enforce a contractual obligation
    • Against the president of India or the state governors
    • Against the chief justice of a high court acting in judicial capacity.

 

Prohibition

  • Literally, it means ‘to forbid’.
  • It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
  • Thus, unlike mandamus that directs activity, the prohibition directs inactivity.
  • The writ of prohibition can be issued only against judicial and quasijudicial authorities.
  • It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

 

Certiorari

  • In the literal sense, it means ‘to be certified’ or ‘to be informed’.
  • It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
  • It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
  • Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.
  • Previously, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authories.
  • In 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.
  • Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.

 

Quo-Warranto

  • In the literal sense, it means ‘by what authority or warrant’.
  • It is issued by the court to enquire into the legality of claim of a person to a public office.
  • It prevents illegal usurpation of public office by a person.
  • The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.
  • It cannot be issued in cases of ministerial office or private office.
  • Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

 

 

Armed Forces and Fundamental Rights

  • Article 33
  • It empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces.
  • The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.
  • The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures.
  • Any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.

 

Martial LawNational Emergency
It affects only Fundamental RightsIt affects not only Fundamental Rights but also Centre–state relations regarding distribution of revenues, legislative powers between centre and states, may extend the tenure of the Parliament.
It suspends the government and ordinary law courtsIt continues the government and ordinary law courts
Martial Law is imposed to restore the breakdown of lawNational Emergency can be imposed only on three grounds - war, and order due to any reason. External aggression or armed rebellion.
It is imposed in some specific area of the country.It is imposed either in the whole country or in any part of it.
Martial Law has no specific provision in the Constitution.National Emergency has specific and detailed provision in the Constitution.
It is implicit.It is explicit.

 

Martial Law and Fundamental Rights

  • Article 34
  • It provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India Literally, it means ‘military rule’.
  • It refers to a situation where civil administration is run by the military authorities according to their own rules and regulations framed outside the ordinary law.

 

 

Effecting Certain Fundamental Rights
  • Article 35
  • It lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures.
  • The Parliament shall have (and the legislature of a state shall not have) power to make laws with respect to the following matters:
    • Prescribing residence as a condition for certain employments or appointments in a state or union territory or local authority or other authority (Article 16).
    • Empowering courts other than the Supreme Court and the high courts to issue directions, orders and writs of all kinds for the enforcement of fundamental rights (Article 32).
  • It should be noted that Article 35 extends the competence of the Parliament to make a law on the matters specified above even though some of those matters may fall within the sphere of the state legislatures

 

 

Present Position of Right to Property

  • The 44th Amendment Act of 1978 abolished the right to property as a Fundamental Right
  • It repealed Article 19(1)(f) and Article 31 from Part III.
  • Instead, the Act inserted a new Article 300A in Part XII under the heading ‘Right to Property’.
  • It provides that no person shall be deprived of his property except by authority of law.
  • Thus, the right to property still remains a legal right or a constitutional right, though no longer a fundamental right.
  • It is not a part of the basic structure of the Constitution.

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