Features of Fundamental Rights

• Some FRs are available only to citizens: Article 15, 16, 19, 29 and 30
• Fundamental Rights are not absolute but qualified. Reasonable restrictions can be imposed on FRs. The reasonability of such restrictions is decided by the SC.
• These rights strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control
• Most rights are available against the actions of the state but some are available against the actions of the private individuals too
• Some FRs is negative in character while others are positive. Negative FRs entail limitations on the government, while positive FRs imposes an obligation on government to take measures.
• FRs are justiciable in nature
• FRs are defended and guaranteed by the constitution. Hence, an aggrieved party can approach the SC for any violation directly rather than by the way of appeal
• Parliament can amend the provisions of the FRs by the way of a constitutional amendment act so long as they do not violate the basic structure of the Indian constitution
• FRs can be suspended during the operation of a National Emergency except the rights guaranteed by Article 20 and 21. Additionally, FRs under Article 19 can be suspended only during the operation of emergency declared on the grounds of war or external aggression
• The scope of FRs is limited by Article 31A, 31B and 31C
• Parliament can restrict or abrogate the application of FR in the case of armed forces, para-military forces, police forces, intelligence agencies and analogous services
• FR can be restricted while martial law is in force

Only Parliament can make a law for the enforcement of the FR

The term “State” includes:

1. Union and State Governments: Legislative and executive branches.
2. Local Authorities: Municipalities, Panchayats, and district boards.
3. Statutory Bodies: LIC, ONGC, SAIL, etc.

Even private entities functioning as state instruments fall under Article 12 (Ajay Hasia Case, 1981). This ensures accountability and uniform application of FRs.

1. Power of Courts:
   • Article 13 empowers courts to invalidate laws that violate FRs, ensuring the supremacy of the Constitution.
2. Wide Interpretation:
   • The term “law” includes legislative acts, ordinances, delegated legislation, and customs with legal force.
3. Basic Structure Doctrine:
   • Constitutional amendments affecting FRs can be challenged if they violate the basic structure (Kesavananda Bharati Case, 1973).

Right to Equality (Articles 14–18)

1. Article 14: Equality Before Law and Equal Protection of Laws

1. • Guarantees legal equality and prohibits special privileges.
   • While equality before law is negative (British origin), equal protection of laws is positive (US origin).
   • Article 14 is the foundation of a democratic society, ensuring justice, fairness, and equality for all individuals.
   • It not only guarantees non-discrimination but also promotes social and economic equity, enabling inclusive governance aligned with constitutional values.

Scope and Application:

• • Applicability:
    • Article 14 applies to State actions as defined in Article 12. Actions by private individuals are not covered unless specified, such as in Article 15(2) (prohibition of discrimination in public places).
  • Exceptions for Constitutional Authorities:
    • Immunity for President and Governor under Article 361:
      • No legal proceedings can be initiated during their tenure.
      • Impeachment and suits against the government are exceptions.
    • International exceptions include foreign sovereigns and ambassadors.

Legislative Classification:

• • Principles of Classification:
    • A classification is valid if based on intelligible differentia and has a rational nexus with the objective of the law.
    • Example: Educational qualifications can be a valid criterion for promotions if linked to job efficiency.

Reasonable Discrimination:

• • Article 14 permits rational discrimination when it is necessary to achieve social or economic equality.
  • Example: Reservations for Scheduled Castes, Scheduled Tribes, and socially backward classes to uplift disadvantaged groups.

What Article 14 Prohibits:

• • It disallows class legislation, which creates arbitrary distinctions without valid justification.
  • Over-classification that disrupts equality is also prohibited.

Judicial Interpretations:

1. • Illegality Cannot Justify Another: Courts do not permit invoking jurisdiction to demand the replication of illegal acts for others.
     • Example: Coal Block Allocations (1993–2011) declared invalid due to:
       • Lack of objective criteria.
       • Arbitrary decision-making without guidelines.
       • Violation of public trust and national interest principles.

 Importance of Article 14:

• • Forms the essence of democracy and is regarded as a basic feature of the Constitution.
  • Encourages social and economic justice within a political democracy.

Difference Between Equality Before Law and Equal Protection of the Laws

Note: In India, constitution is the source of individual rights

Exceptions to equality

1. 1. President and governor not answerable to court for their official acts
   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 governor
   4. Civil proceeding on personal acts only after two months’ notice
   5. No liability of true reporting in newspapers
   6. No member of Parliament shall be liable for anything said or vote
   7. Article 31C
   8. Foreign sovereigns enjoy immunity; this includes even UNO

 

2. Article 15: Prohibition of Discrimination
   1. Prohibitions:
      • State cannot discriminate against citizens based solely on religion, race, caste, sex, or place of birth (Clause 1).
      • Discrimination by private individuals regarding public spaces, like restaurants, wells, and roads, is also barred if maintained by public funds (Clause 2).
   2. Permissible Exceptions:
      • Special provisions for women and children (Clause 3).
      • Measures for the advancement of socially and educationally backward classes, including Scheduled Castes (SCs) and Scheduled Tribes (STs) (Clause 4).
   3. Economic Reservations:
      • The 103rd Constitutional Amendment introduced Clause 6, enabling special provisions for economically weaker sections (EWS) in education and employment, reserving up to 10% of seats for them in educational institutions and public jobs.

 

3. Article 16: Equality of Opportunity in Public Employment
   • Article 16 ensures equality of opportunity for all citizens in matters of public employment. It prohibits discrimination based on religion, race, caste, sex, descent, place of birth, or residence. This principle upholds meritocracy in state services.
   • Exceptions to equality:
     • Residence condition: Parliament can impose residency requirements for specific posts, though currently, only Andhra Pradesh and Telangana have such provisions.
     • Reservation for backward classes: The state can reserve posts for classes not adequately represented in state services.
     • Religious institutions: Religious or denominational posts can require the incumbent to belong to a particular religion.
     • Economic reservation: A 10% quota for economically weaker sections (EWS) was introduced by the 103rd Amendment, 2019.

Mandal Commission and Reservation Policy

• • In 1979, the Second Backward Classes Commission (Mandal Commission) identified 3743 backward castes, constituting 52% of the population (excluding SC/STs). It recommended 27% reservation for OBCs in government jobs, capped at 50% total reservation.
  • Key judicial and legislative actions:
    • Mandal Case (1992): SC upheld 27% OBC reservation with conditions:
      • Exclude the creamy layer.
      • No reservation in promotions (except SC/STs via 77th and 85th Amendments).
      • Total reservation should not exceed 50%.
      • Unfilled vacancies (backlog) could carry forward but must adhere to the 50% rule.
  • Legislative milestones:
    • 81st Amendment (2000): Allowed separate backlog vacancies, exempting them from the 50% ceiling.
    • 76th Amendment (1994): Included Tamil Nadu’s 69% reservation law in the Ninth Schedule to shield it from judicial review.

Judicial Pronouncements Regarding Reservation

Reservation for Economically Weaker Sections (EWS)

1. 1. Introduced by the 103rd Amendment (2019), it provides 10% reservation in government jobs for individuals not covered under SC/ST/OBC quotas.
   2. Eligibility criteria:
      • Family income below ₹8 lakh/year.
      • Excludes those owning significant landholdings or urban properties.
      • Benefits apply to general-category individuals meeting economic criteria.

Arguments in Favor and Against Reservation Based on Economic Status

Should Reservation in Promotions Be Implemented?

Current Scenario of Reservations in Promotions for SC/STs

1. Introduction of Creamy Layer in Promotions: The 2006 Nagaraj vs Union of India verdict established the application of the creamy layer filter for SC/ST employees in promotions.
2. Requirement for Quantifiable Data: The judgment required states to collect ‘quantifiable data on the backwardness’ of the SC/ST category to justify granting reservations in promotions.
3. Application of Creamy Layer in Promotions: The ruling specified that the creamy layer concept is applicable in cases of promotions for SC/ST employees.
4. Exception in Direct Recruitment: The creamy layer filter does not apply to SC/ST candidates during direct recruitment processes.

 

4. Article 17: Abolition of Untouchability

1. 1. Article 17 abolishes untouchability and forbids its practice in any form. It is absolute, with no exceptions, and applies to both private individuals and the state.
   2. Enforced through the Protection of Civil Rights Act, 1955, which penalizes discrimination arising from untouchability.
   3. The term “untouchability” is not explicitly defined in the Constitution or the Act.
   4. SC clarified that untouchability refers to historical social disabilities and not personal disputes (Mysore High Court ruling).

Offences Under the Act: The following acts are punishable under the Protection of Civil Rights Act, 1955:

1. Denial of Access to Public Spaces: Refusing entry to hospitals, educational institutions, or other public institutions.
2. Prohibition on Worship: Preventing individuals from worshipping in public religious places.
3. Disabilities in Using Public Resources: Denying access to reservoirs, taps, roads, cremation grounds, shops, hotels, or other public services.

Expanded Scope of the Act (1976 Amendment)

The Act was broadened to include:

1. Insult Based on Untouchability: Insulting or humiliating members of Scheduled Castes based on untouchability.
2. Preaching Untouchability: Advocating untouchability directly or indirectly.
3. Justification of Untouchability: Supporting untouchability on historical, philosophical, or religious grounds.

Penal Provisions

1. 1. Punishments:
      • First conviction: Imprisonment and fine.
      • Subsequent convictions: 1 to 2 years’ imprisonment with higher fines.
   2. Disqualifications:
      • Individuals convicted of untouchability offences are barred from contesting elections to the Union or State Legislatures.

Presumption of Guilt

1. 1. If a Scheduled Caste member faces discrimination, courts presume guilt under the Act unless proven otherwise.
   2. This statutory presumption strengthens the Act’s effectiveness in addressing caste-based discrimination.

 

5. Article 18: Abolition of Titles
   1. Article 18 prohibits the state from conferring titles of nobility, promoting equal status among all citizens.
   2. Key provisions:
      • Bans hereditary titles like Maharaja or Rai Bahadur.
      • Citizens cannot accept foreign titles without presidential consent.
   3. Exceptions to the Rule:
      • Academic and Military Distinctions: The State is allowed to confer military or academic honors (e.g., “Dr.,” “Major”).
      • Public Institutions: Universities and similar institutions are free to confer titles or honors to recognize merit or contributions.
   4. Awards Like Bharat Ratna and Padma Vibhushan:
      • These awards are decorations and not titles.
      • They cannot be appended to a recipient’s name as a prefix or suffix.

Criticism of Awards

1. 1. Violation of “Equality of Status”:
      • Critics argue that these awards create rank distinctions, contrary to the Preamble’s promise of equality.
      • Example: Bharat Ratna recipients are ranked ninth in the Warrant of Precedence, below Cabinet Ministers.
   2. Lack of Constitutional or Legal Sanction:
      • There is no provision in the Constitution or law penalizing recipients for using awards as titles.
      • Critics highlight instances of misuse, where individuals append awards (e.g., “Padma Vibhushan”) to their names.

Judicial Interpretation

1. 1. Supreme Court Verdict:
      • Non-military awards like Padma awards are valid as long as they are not used as titles.
      • Such decorations do not violate Article 18 or Article 14 if used for recognizing extraordinary merit.

Controversies and Developments

1. 1. Protest by Acharya Kripalani:
      • Called for the abolition of government awards like Bharat Ratna, claiming they contradict the spirit of Article 18.
      • Led to the temporary suspension of awards during the Janata regime (1977), later reinstated by Indira Gandhi.
   2. Restoration and Continued Practice:
      • Despite criticisms, these awards remain integral to recognizing merit in arts, literature, science, and public service.

Protection of Six Fundamental Rights under Article 19

1. 1. Article 19 guarantees six fundamental rights to Indian citizens:
      • Freedom of speech and expression.
      • Freedom to assemble peaceably without arms.
      • Freedom to form associations or unions or cooperative societies.
      • Freedom to move freely throughout the country.
      • Freedom to reside and settle in any part of the country.
      • Freedom to practice any profession or carry out any occupation, trade, or business.
   2. Originally, Article 19 included the right to property, which was removed by the 44th Amendment Act, 1978.
   3. These rights are protected against state actions, not private individuals, and are exclusive to Indian citizens. The state can impose reasonable restrictions on these rights under grounds mentioned in the Constitution.

1. 1. Freedom of Speech and Expression
      • This right allows individuals to express their views freely via speech, writing, printing, or any other means.
      • SC rulings expanded this right to include:
        • Propagating one’s views and the views of others.
        • Freedom of the press and the right to telecast.
        • Right to know government activities, freedom of silence, and freedom against pre-censorship.
        • Right to peaceful demonstration, but not the right to strike.
      • Restrictions can be imposed for reasons like security of the state, public order, decency, morality, defamation, and incitement to offense.
   2. Freedom of Assembly
      • Citizens can assemble peaceably without arms on public land for meetings, protests, or processions.
      • This right doesn’t protect violent or riotous assemblies or those causing breaches of public peace.
      • Reasonable restrictions can be imposed for:
        • Sovereignty and integrity of India.
        • Maintenance of public order, including traffic and safety concerns.
      • Section 144 of the CrPC empowers magistrates to prevent assemblies that may endanger human life or public peace.
   3. Freedom to Form Associations
      • Includes forming political parties, trade unions, societies, and organizations. Citizens also have the right not to join associations.
      • The right to form associations doesn’t extend to a right to recognition or a right to strike, as per SC judgments.
      • Reasonable restrictions are allowed for:
        • Sovereignty and integrity of India.
        • Public order and morality.
   4. Freedom of Movement
      • Grants citizens the right to move freely across India to promote national integration.
      • Two dimensions of this freedom:
        • Internal movement: Within India (Article 19).
        • External movement: Right to travel abroad and return (covered under Article 21).
      • Restrictions can be imposed to:
        • Protect the general public.
        • Safeguard Scheduled Tribes’ culture and resources.
      • SC upheld movement restrictions in cases like prostitutes (public morality) and AIDS-affected individuals (public health).
   5. Freedom of Residence
      • Allows citizens to reside and settle in any part of the country, promoting national unity.
      • Divided into:
        • Temporary residence.
        • Permanent settlement.
      • Restrictions apply to protect:
        • General public interests.
        • Scheduled Tribes’ distinct culture and rights (e.g., tribal areas).
   6. Freedom of Profession, Occupation, Trade, and Business
      • Ensures citizens can choose any profession or trade for their livelihood.
      • State can regulate:
        • Qualifications for professions.
        • State monopolies in specific industries or businesses.
        • Immoral and dangerous trades (e.g., trafficking, drug trade).

Issues Related to Rights Under Article 19

Protection in Conviction for Offenses (Article 20)

1. 1. Article 20 safeguards individuals from arbitrary and excessive punishment, including:
      • Ex-post facto laws: A law cannot punish actions that were not criminal at the time they were committed or increase the penalty retrospectively for a crime already committed.
        • Scope: Applies only to criminal laws, not civil laws.
        • Purpose: Protects individuals from unfair and retrospective application of laws.
        • Judicial Observations: Enlarging a penal provision retrospectively is violative of Article 20(1).
          • Example: The Vodafone Case highlighted that retrospective amendments can be applied to tax laws (civil) but not to criminal statutes.
      • Double jeopardy: No one can be punished twice for the same offense.
        • Scope:
          • Applicable to judicial punishments for the same offence.
          • Departmental inquiries or actions under different laws for distinct offences do not violate this principle.
        • Judicial Interpretations:
          • Venkataraman v. Union of India: Article 20(2) refers to judicial punishment and does not apply to departmental proceedings.
          • Retrial is permissible if the accused was neither acquitted nor convicted in the earlier trial.
      • Self-incrimination: Protects individuals from being compelled to testify against themselves.
        • Scope: Covers oral and documentary evidence that could incriminate the individual.
          • Does not apply to:
            • Searches or seizures.
            • Collection of physical evidence such as fingerprints, DNA samples, or medical tests.
          • Protection becomes applicable only when a formal accusation has been made.
        • Judicial Observations:
          • Selvi v. State of Karnataka: Compulsory narco-analysis or brain-mapping constitutes testimonial compulsion and violates Article 20(3).

Article 21: Protection of Life and Personal Liberty

1. Article 21 states: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
2. The Supreme Court has interpreted this right expansively to include various dimensions of a dignified life.

Two Key Doctrines:

1. Procedure Established by Law (borrowed from Britain):
   • Ensures that no person is deprived of liberty unless the procedure set by law is followed.
   • The judiciary cannot question the reasonableness of the law.
2. Due Process of Law (borrowed from the U.S.A):
   • Ensures that both procedure and law itself must be fair, just, and reasonable.
   • Allows judicial review of laws violating fundamental rights.

Evolution of Interpretation:

1. Initially, in A.K. Gopalan v. State of Madras (1950), the Supreme Court ruled that Article 21 only required “procedure established by law” without testing its fairness.
2. However, in Maneka Gandhi v. Union of India (1978), the Supreme Court ruled that “procedure” must be fair, just, and reasonable, ensuring protection against arbitrary State action.

3. SC expanded Article 21 to include rights such as:

Right to Education (Article 21A)

1. Added by the 86th Amendment Act (2002), guarantees free and compulsory education for children aged 6–14 years.
2. Enforced through the Right to Education Act, 2009, which sets quality standards for elementary education.

Features of the Right to Education (RTE) Act, 2009

1. Provision of Free and Compulsory Education: Children aged 6 to 14 years are entitled to free and compulsory elementary education in a nearby school.
2. Reservations for Economically Weaker Sections (EWS): Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools, and private unaided schools are required to reserve 25% of their seats for students from disadvantaged and economically weaker backgrounds.
3. Oversight by NCPCR: The National Commission for the Protection of Child Rights (NCPCR) monitors the implementation of the RTE Act.
   • States must establish similar commissions at the state level.
4. Funding Mechanism:
   • The funding for implementing RTE is shared between the Central and State governments.
   • Finance Commission: The Centre can request the Finance Commission to allocate additional resources to states.
   • Civil Society Involvement: Partnerships with civil society can address funding gaps.

Article 22: Protection Against Arrest and Detention

1. Provides safeguards for arrested individuals, ensuring:
   • Informed grounds for arrest.
   • Right to legal representation.
   • Judicial review within 24 hours.
2. Preventive detention provisions allow the state to detain individuals to prevent future crimes.
3. Advisory boards (with HC judges) review detentions exceeding 3 months.
4. Criticism of Preventive Detention
   • Human Rights Concerns:
     • Often misused, leading to arbitrary detentions and suppression of dissent.
     • Considered undemocratic as no other democratic country includes preventive detention as a constitutional provision in peacetime.
   • Impact on Fundamental Rights: Preventive detention laws override the protections provided under Articles 14, 19, and 21, making them a contentious issue.
   • Judicial Interpretations:
     • Anna Hazare Case (2011): The Supreme Court ruled that preventive detention can only be invoked if there is an imminent danger to peace or likelihood of a cognizable offence.
       • Arrests without justification violate fundamental rights.
     • Spurious Chilli Seeds Case: The Supreme Court emphasized that preventive detention should not substitute normal legal processes.
       • Detention orders must meet rigorous scrutiny as they affect Articles 14, 19, 21, and 22.
   • Historical Context and Evolution
     • Colonial Legacy: Preventive detention existed in British India under the Bengal Regulation III of 1818 and the Defence of India Act, 1939.
     • Post-Independence: Preventive Detention Act, 1950, was enacted but lapsed in 1969.
       • New laws like MISA (1971) and COFEPOSA (1974) were introduced.
       • MISA was repealed in 1978, but COFEPOSA continues to exist.
     • Emergency Period (1975–1977): Preventive detention laws were widely misused, leading to 1,75,000 detentions.

Right Against Exploitation (Articles 23–24)

Article 23: Prohibition of Traffic in Human Beings and Forced Labour

1. Article 23 prohibits human trafficking, forced labour (begar), and other similar exploitative practices. Violations are punishable by law, protecting individuals from both state and private actions.
2. ‘Traffic in human beings’ includes practices such as slavery, devadasi system, and immoral trafficking. Laws like the Immoral Traffic (Prevention) Act, 1956, address these issues.
3. Forced labour, including work under coercion or for wages below minimum standards, is prohibited. Key legislations include the Bonded Labour System (Abolition) Act, 1976 and the Minimum Wages Act, 1948.
4. Exception: The state can impose compulsory service for public purposes (e.g., military service), but without discrimination based on religion, race, caste, or class.

Article 24: Prohibition of Child Labor

1. Article 24 prohibits employing children below 14 years in factories, mines, or hazardous activities, though harmless work is permitted.
2. Legislations like the Child Labour (Prohibition and Regulation) Act, 1986, and Child and Adolescent Labour (Prohibition and Regulation) Amendment Act, 2016, strengthen the ban.
3. SC directed the establishment of Child Labour Rehabilitation Welfare Fund and mandated employers violating child labour laws to pay fines.
4. Prohibitions extend to employing children as domestic workers or in industries like restaurants, factories, and spas, with penalties for violations.

Concept of Secularism in India:

1. Neutrality of the State: The Indian Constitution establishes a secular state, meaning that the government maintains an attitude of neutrality and impartiality towards all religions.
2. No State Religion: The state does not promote or patronize any religion but treats all religions equally.

Provisions Ensuring Secularism (Articles 25-28)

Judicial Interpretations on Secularism

1. The Supreme Court has clarified that secularism in India does not mean hostility towards religion but equal treatment of all religions.
2. Political misuse of religion is unconstitutional, and religious appeals for electoral gains violate secularism.
3. Right to Religion vs. Gender Equality:
   • Sabarimala Temple Case (2018): The Supreme Court ruled that the ban on women (aged 10-50) in the Sabarimala Temple violated Article 25(1).
     • It declared that religious freedom is gender-neutral, and women’s right to worship cannot be restricted based on physiological factors. A larger bench was later constituted to decide on similar cases, including:
       • Entry of Muslim women in mosques.
       • Entry of Parsi women in fire temples.
       • The practice of female genital mutilation in the Dawoodi Bohra
4. Religious Propagation & Conversion (Article 25):
   • Stainislaus v. State of Madhya Pradesh (1977): The Supreme Court ruled that the right to propagate religion does not include the right to convert others.
     • Force, fraud, inducement, or allurement in religious conversions violate public order and can be prohibited by the state.
     • The Madhya Pradesh and Orissa Anti-Conversion Acts were upheld as constitutional.
   • Government Actions Against Forced Conversions: Arunachal Pradesh passed a law similar to the MP and Orissa Acts, restricting forced conversions.
     • A Private Member’s Bill (O.P. Tyagi Bill) proposed a national anti-conversion law.

Article 25: Freedom of Conscience, Profession, Practice, and Propagation

1. Ensures freedom to practice and propagate religion while guaranteeing freedom of conscience to all persons, including non-citizens.
2. Includes professing beliefs, practicing rituals, and propagating faith, but forcible conversions are prohibited to protect others’ rights.
3. Rights are subject to public order, morality, and health, allowing the state to regulate secular aspects of religious practices or promote social welfare reforms.

Article 26: Freedom to Manage Religious Affairs

1. Religious denominations have rights to:
   • Establish institutions for religious and charitable purposes.
   • Manage their religious affairs independently.
   • Own and administer movable and immovable property.
2. These rights ensure collective religious freedom but are subject to public order, morality, and health.

Article 27: Prohibition of Religious Taxes

1. Prohibits the state from using tax revenues to promote or maintain any specific religion, ensuring secularism.
2. Fees can be charged for pilgrim services or regulating religious institutions, provided they do not favour one religion over another.

Article 28: Freedom from Religious Instruction

1. Religious instruction is prohibited in schools fully funded by the state but allowed in institutions administered under religious trusts or receiving state aid, provided attendance is voluntary.

Article 29: Protection of Language and Culture

1. Protects the rights of any group with a distinct language, script, or culture to conserve their identity.
2. Ensures non-discrimination in educational institutions funded or recognized by the state, benefiting both minorities and the majority.

Article 30: Right to Establish and Administer Educational Institutions

1. Religious and linguistic minorities have the right to establish and manage their educational institutions, safeguarding their cultural identity.
2. States cannot discriminate in granting aid to minority-run institutions, but such institutions remain subject to general laws like taxation and curriculum standards.

Essence of Article 32

1. Provides the right to move the Supreme Court for enforcement of Fundamental Rights, ensuring that Fundamental Rights are justiciable.
2. Includes the power of SC to issue writs like habeas corpus, mandamus, prohibition, certiorari, and quo-warranto.

Key Features

1. Heart and Soul of the Constitution: Dr. Ambedkar described it as the Constitution’s most vital article.
2. Defender of Rights: SC acts as the guarantor of Fundamental Rights, while High Courts have concurrent jurisdiction under Article 226.
3. Emergency Clause: Article 32 can be suspended during a national emergency (Article 359).

Significance

1. Enables direct access to SC, ensuring timely and cost-effective protection of Fundamental Rights.
2. Article 32 is considered a basic feature of the Constitution and cannot be abridged through amendments.

WRITS: TYPES AND SCOPE

Under Articles 32 and 226, the Supreme Court and High Courts can issue five types of writs: Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto. While the Supreme Court can only enforce Fundamental Rights, High Courts can address both Fundamental and ordinary legal rights.

Key Differences Between Supreme Court and High Court Writ Jurisdiction

1. Scope: Supreme Court addresses violations of Fundamental Rights only, whereas High Courts also enforce ordinary rights.
2. Territorial Jurisdiction: Supreme Court can issue writs across India, while High Courts are limited to their territorial or cause-of-action jurisdiction.
3. Obligation: Article 32 creates a mandatory duty for the Supreme Court, while High Courts exercise discretionary power under Article 226.

Types of Writs

1. Habeas Corpus:
   • Meaning: “Produce the body.”
   • Purpose: Orders the release of a person if detained unlawfully.
   • Applicability: Issued against both public and private authorities but not in cases of lawful detention or contempt of court.
2. Mandamus:
   • Meaning: “We Command.”
   • Purpose: Directs public officials, corporations, or tribunals to perform duties they have failed or refused to carry out.
   • Limitations: Cannot be issued against private individuals, the President, governors, or discretionary duties.
3. Prohibition:
   • Meaning: “To Forbid.”
   • Purpose: Stops lower courts or tribunals from exceeding their jurisdiction.
   • Applicability: Restricted to judicial and quasi-judicial bodies.
4. Certiorari:
   • Meaning: “To Be Certified.”
   • Purpose: Transfers a case to a higher court or quashes an order by lower courts if there is excess jurisdiction or legal error.
   • Applicability: Expanded to administrative bodies (1991).
5. Quo-Warranto:
   • Meaning: “By What Authority.”
   • Purpose: Prevents illegal occupation of a public office.
   • Scope: Applicable to statutory or constitutional offices, not private roles.

Restrictions under Article 33

1. 1. Parliament can limit or revoke the Fundamental Rights of armed forces, paramilitary, police, and intelligence agencies to ensure discipline and duty compliance.
   2. Laws like the Army Act (1950) and Police Forces (Restriction of Rights) Act (1966) restrict freedoms such as forming unions or participating in public demonstrations.
   3. Military tribunals (court-martial) can be excluded from the writ jurisdiction of High Courts and the Supreme Court.

MARTIAL LAW AND FUNDAMENTAL RIGHTS

Article 34:

1. Allows Parliament to indemnify acts done during martial law for restoring order. It also validates sentences or penalties imposed during such periods.
2. Martial Law refers to military rule under extraordinary conditions like war or rebellion. It differs from National Emergency, as it suspends civil authority and law courts in specific regions, whereas National Emergency impacts the entire governance structure.

Difference between Martial law and National Emergency

Scope of Article 35

1. Parliament exclusively legislates to operationalize certain Fundamental Rights, ensuring uniformity across India.
2. Key areas:
   1. Residence requirements for public employment (Article 16).
   2. Issuance of writs by courts other than High Courts or Supreme Court.
   3. Restrictions on armed forces’ Fundamental Rights (Article 33).
   4. Indemnification for actions during martial law (Article 34).
   5. Punishment for offenses like untouchability (Article 17) and human trafficking (Article 23).

RIGHT TO PROPERTY: FROM FUNDAMENTAL TO LEGAL RIGHT

Evolution and Current Status:

1. Originally a Fundamental Right under Articles 19(1)(f) and 31, it guaranteed the right to acquire, hold, and dispose of property with compensation for acquisitions.
2. Repealed by the 44th Amendment Act (1978) and reclassified under Article 300A as a constitutional legal right.
3. Implications:
   • No guaranteed compensation for acquisitions except for specific cases (e.g., minority educational institutions under Article 30).
   • Violations cannot be challenged under Article 32; only under High Court jurisdiction via Article 226.
   • Exceptions like Articles 31A, 31B, and 31C safeguard specific state laws from Fundamental Rights challenges.

Safeguarding Laws for Land Reforms and Others (Article 31A)

1. Article 31A protects specific categories of laws from being challenged under Articles 14 (equality before law) and 19 (freedom of speech, movement, etc.).
2. These include laws related to:
   1. Acquisition of estates or related rights by the State.
   2. State management of properties.
   3. Amalgamation or dissolution of corporations.
   4. Modification of shareholder or director rights.
   5. Changes to mining leases.
3. Judicial immunity under Article 31A applies only when the law is approved by the President of India. Compensation must be provided at market value for land acquired under personal cultivation within statutory ceiling limits.

Validation of Laws Through the Ninth Schedule (Article 31B)

1. Article 31B protects laws listed in the Ninth Schedule from being challenged under Fundamental Rights.
2. Originally intended to uphold land reform laws, the Ninth Schedule now includes a wide array of legislations.
3. Supreme Court Verdict in I.R. Coelho Case (2007): Laws added to the Ninth Schedule after April 24, 1973, can be reviewed if they violate basic structure doctrine or Fundamental Rights like Articles 14, 19, or 21.

Prioritization of Directive Principles (Article 31C)

1. Article 31C ensures that laws implementing Directive Principles under Article 39(b) and (c) are immune to challenges under Articles 14 and 19.
2. Initially, judicial review of such laws was restricted, but the Kesavananda Bharati case (1973) struck down this provision, ensuring the supremacy of judicial review.
3. An attempt to expand this protection to all Directive Principles through the 42nd Amendment Act was invalidated in the Minerva Mills case (1980).

 

Amendability of Fundamental Rights

1. Excessive Restrictions
   • Fundamental Rights are subject to numerous limitations and exceptions, reducing their effectiveness. Critics argue that they are granted with one hand and taken away with the other.
2. Lack of Socio-Economic Rights
   • The list excludes key socio-economic rights like the right to work, social security, and rest, limiting its inclusivity compared to constitutions of socialist or welfare states.
3. Ambiguity in Provisions
   • Terms like ‘reasonable restrictions,’ ‘public order,’ and ‘minorities’ are not clearly defined, leaving room for subjective interpretations by courts.
4. Lack of Permanence
   • Parliament can amend or abolish these rights through constitutional amendments, making them susceptible to political influences, as seen in the abolition of the right to property.
5. Suspension During Emergencies
   • Rights (except Articles 20 and 21) are suspended during a National Emergency, undermining democratic values during crises.
6. Expensive Enforcement
   • The judicial process to enforce these rights is costly and inaccessible to economically weaker sections, favoring the affluent.
7. Preventive Detention
   • Article 22 allows preventive detention, granting arbitrary powers to the State, which undermines individual liberty.
8. Absence of Philosophical Consistency
   • Critics argue that the Fundamental Rights lack a coherent philosophical foundation, making judicial interpretation inconsistent.

1. Article 32 establishes the Supreme Court as the protector and guarantor of Fundamental Rights. Key features include:
   • Relief under Article 32 cannot be refused on grounds like:
     • Availability of alternate remedies.
     • Presence of disputed facts or need for evidence.
   • The Supreme Court can modify the relief sought to suit the case’s requirements.
   • Public Interest Litigation (PIL): Expands access by allowing any individual or group to seek redress for collective or social issues.
   • Constitutional Immunity of Article 32: Article 32 is immune to legislative interference. Laws rendering Article 32 ineffective can be invalidated.
     • A.K. Gopalan v. State of Madras: The Supreme Court struck down provisions of the Preventive Detention Act, 1950, that curtailed the court’s ability to examine detention grounds, holding such provisions ultra vires.