Fundamental rights (Articles 12-35)

  • The Fundamental Rights is defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution are guaranteed by the constitution to all person without any discrimination.
  • They are enforceable by the courts, subject to specific restrictions.
  • The sanction behind these FRs is for promoting the ideal of political democracy
  • The concept of fundamental rights first came into being in Magna Carta in England in 1215.
  • Fundamental Rights in Indian constitution is inspired by the ‘Bill of Rights’ (Fundamental Rights) included in the constitution of the USA
  • This section of the constitution is also called as Magna Carta of India
  • The FRs operates as limitations on the tyranny of the executive and arbitrary laws of the legislature.
  • Originally, the constitution provided for 7 FRs. However, the Right to property was deleted by the 44th amendment act, 1978.
  • 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

  • Executive and legislative organs of the union
  • Executive and legislative organs of the state
  • All local bodies
  • All statutory and non-statutory authorities
  • Private body or agency working as an instrument of state can fall within the meaning of the state

What constitutes law under article 13?

  • Permanent laws enacted by Parliament or state legislatures
  • Temporary laws like ordinances
  • Statutory instruments in the nature of delegated legislation
  • Non-legislative sources of law

Even constitutional amendment act can be challenged (Keshavananda Bharati case)

Article 14:

Right to equality: Equality before law and equal protection of laws

  • Includes legal persons as well
  • Equality before law: British version
  • Equal protection of laws: American constitution
  • It permits reasonable classification of persons, objects and transactions by the law but it should not be arbitrary

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


Exceptions to equality

  • President and governor not answerable to court for their official acts
  • No criminal proceedings shall be instituted or continued against the President or the governor in any court during his term of office
  • No process for the arrest or imprisonment of the President or governor
  • Civil proceeding on personal acts only after two months notice
  • No liability of true reporting in newspapers
  • No member of Parliament shall be liable for anything said or vote
  • Article 31C
  • Foreign sovereigns enjoy immunity; this includes even UNO

Article 15

No citizen of India shall be discriminated on the basis of religion, race, caste, sex or place of birth

  • Usage of two keywords- ‘discrimination’ and ‘only’
  • Ground mentioned in the article: religion, race, caste, sex or place of birth
  • The second provision in this article is applicable to even private individuals and legal persons

Exceptions

  • Special provisions for women and children
  • Advancement of socially and educationally backward classes of citizens or for the SC and ST
  • Provision for education of the above could be made for education in aided and unaided

Article 16: equality of opportunity in public employment

  • Addition of two more grounds: Descent or residence

Exceptions:

  1. Parliament can prescribe residence as condition for certain employment
  2. State can provide reservation for any backward classes if they are inadequately represented
  3. Religious denomination exception

Abolition of untouchability: article 17

  • Protection of civil rights act, 1955
  • Term untouchability has not been defined anywhere in the constitution
  • It is available against even private individuals

Article 18: abolition of titles

  • State cannot confer titles until it is military or academic
  • Prohibits a citizen of India from accepting titles from foreign countries
  • Foreigner who holds office of profit should take consent of the President
  • No gift also for a foreigner without President’s approval

Article 19: Right to freedom

  • It has six rights within it
  • Right to hold property was deleted by the 44th amendment act of 1978
  • These rights are not applicable to aliens, legal corporation
  • They are not available against private individuals
  • Reasonable restrictions can be imposed on enjoyment of these rights
  • Restrictions should be based on the grounds mentioned in article 19 and not on any other grounds

 

Freedom of speech and expression

  1. Includes freedom of commercial advertisements
  2. Right against bundh called by a political party
  3. Freedom of silence
  4. It does not include right to strike

 

Reasonable restrictions

  1. Sovereignty and integrity of India
  2. Security of the state
  3. Friendly relations with foreign states
  4. Public order
  5. Decency or morality
  6. Contempt of court
  7. Defamation and
  8. Incitement to an offence

 

Freedom of assembly

  • Can be exercised only on public land
  • Assembly must be peaceful and unarmed
  • Reasonable restriction: sovereignty and integrity of India and public order

 

Freedom of association

  • Right to obtain recognition of the association is not a fundamental right
  • Right to strike is not a constitutional right can be regulated by appropriate law

 

  • Reasonable restriction: interest of general public and protection of interests of any scheduled tribes
  • Article 19 does not deal with movement outside the country
  • Freedom of residence is complementary to the above right
  • Freedom of profession

 

Article 20: Protection in respect of conviction for offences

  • Grants protection against arbitrary and excessive punishment to an accused person
  • Applicable to almost everyone
  1. No ex-post facto law (not on civil or tax laws or even on criminal trials, preventive detention cases)
  2. No double jeopardy (not available in proceedings before departmental or administrative authorities)
  3. No self-incrimination (not applicable to civil proceedings)

Article 21: protection of life and personal liberty

  • “procedure established by law”
  • Gopalan case: not available against arbitrary legislative action
  • Maneka Gandhi case: wider interpretation of article 21 (just, fair and reasonable)
  • Various rights included under this are:
  • Right to live with human dignity.
  • Right to the decent environment including pollution-free water and air and protection against hazardous industries.
  • Right to livelihood.
  • Right to privacy.
  • Right to shelter.
  • Right to health.
  • Right to free education up to 14 years of age.
  • Right to free legal aid.
  • Right against solitary confinement.
  • Right to a speedy trial.
  • Right against handcuffing
  • Right against inhuman treatment.
  • Right against delayed execution.
  • Right to travel abroad.
  • Right against bonded labor.
  • Right against custodial harassment.
  • Right to emergency medical aid.
  • Right to timely medical treatment in a government hospital.
  • Right not to be driven out of a state.
  • Right to a fair trial.
  • Right of prisoner to have necessities of life.
  • Right of women to be treated with decency and dignity
  • Right against public hanging.
  • Right to hearing.
  • Right to information.
  • Right to reputation.
  • Right of appeal from a judgment of conviction
  • Right to social security and protection of the family
  • Right to social and economic justice and empowerment
  • Right against bar fetters
  • Right to appropriate life insurance policy
  • Right to sleep
  • Right to freedom from noise pollution
  • Right to electricity
  • Right to Privacy

Article 21A: Right to education

  • Free and compulsory education to all children in the age group of 6-14 years
  • Added by 86th constitutional amendment act

 

Article 22: Protection against arrest and detention

  • Two types of detention: punitive and preventive

First part of article 22

  1. Right to be informed on 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
  4. Right to be released after 24 hours unless the magistrate authorizes further detention

These are applicable to those acts which are of a criminal or quasi-criminal nature

These safeguards are not available to a person detained under preventive detention law and also to an alien

Preventive detection provisions are applicable to both citizens as well as aliens

  1. Detention of a person cannot exceed three months unless an advisory board recommends the same (the board is to consist of judges of a high court)
  2. Ground of detention should be communicated to Detenu. However, facts considered important may not be communicated
  3. Opportunity for representation should be provided.

Constitution has divided the legislative power with regard to preventive detention between Parliament (exclusively for defence, foreign affairs and security of India) and the state legislatures

Right against exploitation

Article 23: Prohibition of traffic in Human beings and Forced Labour

  • Protection against private actions as well
  • Compulsion arising from economic reasons are also included
  • Exception: compulsory military service

Article 24: Prohibition of employment of children in factories etc

  • Does not prohibit employment in harmless activities
  • Commission for Protection of Child rights act, 2005 was enacted to provide for a national commission and state commission for child rights

Right to freedom of religion

Article 25: Freedom of conscience and free profession, practice and propagation of religion

  • No forcible conversions allowed
  • Available to both citizens and non-citizens
  • Covers both rituals and practices
  • It guarantees rights of individuals
  • State can regulate these religious institutions
  • State can provide for social welfare and reform

 

Article 26: Freedom to manage religious affairs

  • To establish institutions
  • To manage its religious affairs
  • To own property
  • To administer such property
  • It guarantees rights of religious denominations
  • These are not subject to other provisions relating to FR

Religious denomination

  • Group of people with common belief
  • Common organization
  • Distinctive name

 

Article 27: Freedom of taxation for promotion of a religion

  • It prohibits levy of a tax and not fee

 

Article 28: Freedom from attending religious instruction

  • Institution wholly setup by use of state funds: prohibited
  • Institution administered by state but established by a trust: allowed
  • Institutions recognized by a state: voluntary basis
  • Institution receiving aid from state: voluntary basis

Cultural and educational rights

Article 29: right to conserve distinct language, script or culture of its own

  • No discrimination can be made on the basis of language in educational institutions
  • This is applicable to not just to minorities
  • It provides protection to both religious and linguistic minorities

Article 30: To administer educational institutions

  • Applicable to both religious and linguistic minorities
  • Here, protection is confined only to minorities

Article 32: Right to constitutional remedies

  • Most important part of the Fundamental Rights
  • Parliament can empower any other court to issue directions, orders and writs of all kinds
  • President can suspend the enforcement of Fundamental rights during a national emergency (article 359)
  • Article 32 can be invoked in only those cases where there is violation of FR

 

Writs

  • Before 1950, only high court of Bombay, Madras and Calcutta could issue writs.
  • Idea borrowed from British
  • Writ jurisdiction of Supreme Court is narrower
  • Territorial jurisdiction of SC is much greater than HC
  • SC is the defender and guarantor of fundamental rights

 

Habeas Corpus

  • Tool of individual liberty against arbitrary detention
  • Can be issued against both public and private individuals
  • The writ cannot be issued in following cases:
  1. Detention is lawful
  2. Proceedings is for contempt of legislature or court
  3. Detention is by a competent court
  4. Detention is outside court jurisdiction

 

Mandamus

  • Demanding a public official to perform a duty which he has failed to perform
  • Can be issued against an inferior court also
  • Cannot be issued against a private individual or body. To enforce departmental instruction that does not possess statutory force; when the duty is discretionary; to enforce a contractual obligation; against President of governor; against CJI of a high court acting in judicial capacity

 

Prohibition

  • It means ‘to forbid’
  • Issued by a higher court to a lower court
  • To prevent exceeding jurisdiction
  • Only against judicial and quasi-judicial bodies
  • Not available against administrative authorities, legislative bodies and private individuals or bodies

 

Certiorari

  • Much like above but it is curative as well
  • Available against administrative authorities as well

 

Quo-Warranto

  • To adjudicate the legality of a claim of a person to public office
  • It can be issued against public office of substantive character
  • Cannot be issued against ministerial or private office
  • Any interested person can seek the application of this
  • Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of the armed forces, para-military forces, police forces, intelligence agencies and analogous forces.
  • Objective behind this article is to ensure proper discharge of their duties and maintenance of disciple among them
  • Power to make laws under this is conferred only to Parliament
Remember: A law made under this exclude the court martials from the writ jurisdiction of the Supreme Court and the high courts, so far as the enforcement of FRs is concerned
  • Article 34 provides for the restrictions on FRs while martial law is in force in any area within the territory of India
  • Parliament is authorized to indemnify any government servant for restoration of law and order whilst martial law is in force even if those actions were violative of FRs
  • The concept of Martial law has been borrowed from British
  • Despite its mention, the term ‘martial law’ has not been defined in the constitution
  • There are no grounds mentioned for the imposition of Martial law
  • During the operation of martial law, the military authorities are vested with abnormal powers to take all necessary steps.

However, the SC held Habeas Corpus is not suspended when martial law is in force

 

Difference between Martial law and National Emergency

Martial lawNational Emergency
It affects only FRIt affects FR, centre-state relations etc
It suspends the government and ordinary law courtsContinues their existence
Imposed to restore law and orderWar, external aggression or armed  rebellion
Imposed in some specific areas of the countrySome or whole of the country
No specific provision in the constitutionSpecific and detailed provision

Article 35: effecting certain fundamental rights

The parliament shall have the rights and the state legislature shall not have the right to make laws in the following provisions:

  1. Prescribing residence as a condition for certain employments or appointments in a union territory or local authority or other authority
  2. Empowers courts other than Supreme Court and high courts to issue directions, orders and writs of all kinds
  3. Restricting or abrogating the application of fundamental rights to members of armed forces, police forces etc
  4. Indemnifying any government or any other person for any act done during the operation of martial law in any area
  5. Punishment for acts involving untouchability
  6. Traffic in human beings and forced labour
Remember

• Any law in force at the commencement of the constitution with respect to matters mentioned above will continue to be in force until altered or repealed or amended by the Parliament

• Article 31 which contained right guaranteeing a citizen or a non-citizen, right against deprivation of his property. However, this act was removed through 44th constitutional amendment act. However, right to property is now only a legal right (protection of private property against executive action but not against legislative action)

Article 31A, 31B and 31C

 

Article 31A: Saving of laws providing for acquisition of estates etc

  • It saves five categories of laws from being challenges and invalidated on the ground of contravention of article 14 and article 19
  1. Acquisition of states and related rights by the state
  2. Taking over the management of properties by the state
  3. Amalgamation of corporations
  4. Extinguishment or modification of rights of directors or shareholders of corporations and
  5. Extinguishment or modification of mining leases

 

Drawback of Sanskrit drama
Remember: This does not immunize a state law from judicial review unless it has been reserved for the president’s consideration and has received his assent

 

Article 31B: Validation of certain acts and regulations

  • It saves the acts and regulations included in the 9th schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights
  • SC in one of its judgment ruled that there could not be any blanket immunity. Laws enacted after Keshavananda Bharati judgment can be challenged in court if they violate FRS guaranteed by 14, 15, 19 and 21

 

Article 31C: Saving of laws giving effect to certain directive principles

  • It contains following two provisions:
  1. No law shall be deemed void if it seeks to give effect article 39 (b) or 39 (c) even if it violates Article 14 or article 19
  2. Barring of courts to question such laws made so that it does not give effect to such a policy. (This provision was deemed unconstitutional by the court in the Keshavananda Bharati judgment)

 

Remember: 42nd amendment act was enacted to ensure that the blanket immunity provided under article 31C (1) was extended to every DPSP. However, the SC declared this unconstitutional in the Minerva Mills case
  1. Bedrock of political democracy
  2. Provides material and moral protection
  3. Bulwark of individual liberty
  4. Facilitate the establishment of rule of law
  5. Protect the interests of minorities and weaker sections of the society
  6. Strengthen the secular fabric of the Indian state
  7. Acts as a check to the absolute authority of the government
  1. Excessive limitations
  2. No and social economic rights
  3. No clarity
  4. No permanency
  5. Suspension during emergency
  6. Expensive remedy
  7. Preventive detention
  8. No consistent philosophy