FUNDAMENTAL RIGHTS - Indian Polity
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Basics of the Fundamental Rights
It covered in the Part III of the Indian Constitution (Under article 12 to
article 35). It has largely been incorporated from Bills of Rights of USA
constitution and also called as Magna Carta of Indian Constitution because it is
Justiciable or Enforceable in a court of law. This is the elaborated fundamental
rights description in entire world.
They do not do any discrimination among the citizens of India on the base of
colour, religion, sex etc. It holds the equality of all individuals, the dignity
of the individual, the larger public interest and unity of the nation. It
promotes ideal of political democracy and prevent the establishment of an
authoritarian despotic rule in the country, and protect the liberties and
freedoms of the people against the invasion by the State.
It also aim at establishing 'a government of laws and not of men'. Rule of
law has three components i.e. Supremacy, Classes to same law and Impartial and
powerful judiciary.
Why the Fundamental Rights are Fundamental?
Because they cover the basic of fundamental needs
of citizen and are guaranteed and protected by the Constitution, which
is the fundamental law of the
land. It form the back bone, core and soul of constitution (Fundamental
Rights +
Directive Principles of State Policy). They are most essential for the
all-round
development (material, intellectual, moral and spiritual) of the
individuals.
Originally, the Constitution provides for Seven Fundamental Rights:- Right to Equality (Articles 14 to 18)
- Right to Freedom (Articles 19 to 22)
- Right against Exploitation (Articles 23 to 24)
- Right to Freedom of Religion (Articles 25 to 28)
- Cultural and Educational rights (Articles 29 to 30)
- Right to property (Article 31) : It was deleted by the 44th Amendment Act 1978. IT is made under legal right under Article 300-A in Part XII of the Constitution.
- Right to Constitutional Remedies (Article 32): According to father of Indian Constitution Dr. B.R. Ambedkar, Right to enforce Right since itself is fundamental, supreme court can not refuse you to entertain the Right.
Features of Fundamental Rights
Some are available only to citizen (15,16,19.29,30), rest are available to
both citizen and aliens (except enemy aliens). It is not absolute but qualified
(reasonable restrictions decided by the courts). Strike a balance between the
rights of the individual liberty and social control. It deals with most of the
area against state's arbitrary action, so when such rights are violated by the
private individuals, there are no constitutional remedies but only legal
remedies.
Some negative rights (like place limitations on State), while others positive
in nature (like conferring certain privileges on the persons). Justiciable,
allowing persons to move the courts for their enforcement as they are defended
and guaranteed by the Supreme Court (Article 32), if and when they are violated.
They are not sacrosanct or permanent. Change can be done by CAA (not covered in
basic structure of constitution). They can be Suspended during National
Emergency except 20, 21. Six rights of Article 19 can be suspended only when
emergency is declared on the grounds of war or external aggression (i.e.
external emergency) and not on the ground of armed rebellion (i.e. internal
emergency).
Limitated by Article 31A (saving of laws providing for acquisition of
estates, etc.), Article 31B (validation of certain acts and regulations included
in the 9th Schedule) and Article 31C (saving of laws giving effect to certain
directive principles). 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).
Fundamental Rights restricted while martial law is in force (not national
emergency). Military rule imposed under abnormal circumstances to restore order
(Article 34). Mostly it is directly enforceable (self-executory) while certain
rights like 21A (Right to Education) 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 (to maintain a uniform standard in entire nation) (Article
35).
Article - 33 : Armed Forces & Fundamental Rights
It empowers the Parliament to restrict or abrogate the FRs of
the members of armed forces, para-military forces, police forces, intelligence
agencies etc. (include employees who are non-combatants), done for proper
discharge of their duties and the maintenance of discipline. Under the law, only
Parliament can make laws to give the effect to them (Article 19), it cannot be
challenged on violation of any of the fundamental rights.
A parliamentary law enacted under Article 33 can also exclude
the court martial (tribunals established under the military law) from the writ
jurisdiction of the Supreme Court and the high courts, so far as the enforcement
of Fundamental Rights is concerned.
Article - 34 : Martial Law
It imposes restrictions on fundamental rights while martial
law is in force in any area within the territory of India. Empower the
Parliament to indemnify any government servant or others for any act done
by him in connection with the maintenance or restoration of order in any area
where martial law was in force. So, Act of Indemnify made by the Parliament
beyond Judicial Review only on violation of the fundamental rights.
Martial Law: (military rule) Not described in Indian
Constitution. Civil administration is run by the military authorities according
to their own rule and regulations framed outside the ordinary law, implying
suspension of ordinary law and the government by military tribunals. It is
imposed under the extraordinary circumstances like war, invasion, insurrection,
rebellion, riot or any violent resistance to law to repel force by force for
maintaining or restoring order in the society.
Abnormal powers including imposing restrictions and
regulations on the rights of the civilians, can punish the civilians and even
condemn them to death. The Supreme Court held that the declaration of martial
law does not ipso facto result in the suspension of the writ of habeas corpus.
Difference with respect to National Emergency- Martial law affect only Fundamental Rights, while national Emergency is broader in scope affecting Centre State Relationship, Fundamental Rights, Legislative powers, Revenue distribution.
- Military law suspends ordinary law, But courts and government continues in National Emergency.
- Martial law imposed to restore the breakdown of law and order due to any reason, while National Emergency can be imposed only on three grounds (Article 352) i.e. War, External aggregation or Armed rebellion.
- Martial law is always imposed only in some area of the country but National Emergency can be in some area or the entire country.
Article 35 : Laws for Effecting Fundamental Rights
Power to make laws, to give effect to certain specific
fundamental rights shall vest only in the Parliament and not in the state
legislatures, even if under state list to ensure uniformity throughout India.
- Prescribing residence as a condition under Article 16.
- Empowering courts other than the Supreme Court and the High Courts to issue directions, orders and writs of all kind for the enforcement of fundamental rights (Article 32).
- Restricting or abrogating the application of Fundamental Rights to members of armed forces etc. (Article 33)
- Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34).
- Untouchability - (Article 17)
- Traffic in human beings and forced labour - (Article 23)
- Law before independence will continue as such
Definition of State : (Article - 12)
It includes Government and Parliament of India, that is, executive and
legislative organs of the Union Government. Government and legislature of
states, that is, executive and legislative organs of state government. All local
authorities, that is, municipalities, panchayats, district boards, improvement
trust etc. All other authorities, that is, statutory or non-statutory
authorities like LIC, BHEL, SAIL, GAIL etc. or even a private body or an agency
working as an instrument of the State.
It is the actions of these agencies that can be challenged in the courts as
violating the Fundamental Rights.
Article - 13 : Laws inconsistent with Fundamental Rights
Doctrine of Judicial Review: All law that are inconsistent with or in
derogation of any of the fundamental rights shall be void. Supreme Court
(Article 32), High Court (Article 226) can declare a law unconstitutional and
invalid on the ground of contravention of any of the Fundamental Rights.
Law:- Permanent laws enacted by the Parliament or the State Legislatures'
- Temporary laws like ordinances issues by the president of the state governors;
- Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and
- Non-legislative sources of law, that is, custom or usage having the force of law.
Article - 13: with respect to Constitutional Amendment Act
Constitutional Amendment Act is not a law and hence cannot be challenged, it
was the position till 24th April 1973. However, the Supreme Court held in the
Kesavananda Bharti case (1973) that a Constitutional Amendment Act can be
challenged on the ground that it violates a fundamental right that forms a part
of the 'basic structure' of the Constitution and hence, can be declared as void.
Article - 32: Right to Constitutional Remedy
According to Dr. B.R. Ambedkar, mere declaration of fundamental right is
meaningless without providing a effective machinery for their enforcement.
Hence, Article 32 : right to remedies for the enforcement of the fundamental
rights of an aggrieved citizen.
Right to get the Fundamental Rights protected is in itself a fundamental
right making the fundamental rights real. That is why Dr. Ambedkar called
Article 32 as the very heart and soul of the Constitution - 'an Article
without which this constitution would be a nullity'. Supreme Court
(under 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.
Article 32 contains the following four provisions:- The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed.
- The Supreme Court shall have power to issue directions or orders or writs any of the fundamental rights.
- Parliament can empower any other court to issue directions, orders and writs of all kinds (not HC, already under 226).
- The right to move the Supreme Court shall not be suspended except by President during a national emergency (Article 359).
- Supreme Court has been vested with the 'original' (direct approach with or without appeal) and 'wide' (not only orders, directions but also writs) powers for to provide a guaranteed, effective, expedious, inexpensive and summary remedy for the protection of the fundamental rights.
- Only Fundamental Rights can be enforced under Article 32 and not any other like non-fundamental constitutional rights, statutory rights, customary rights etc.
- Jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court Article 226. (direct approach to High Court or Supreme Court). Where relief through high court is available under Article 226, the aggrieved party should first move the high court.
- Supreme Court (32) and the High Court (226) can issue writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
- Parliament (under Article 32) can be empower any other court to issue these writs (not done till date).
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Power with respect to writ jurisdiction
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Limited to fundamental rights for supreme court (narrower), but both fundamental rights and Legal rights for High Courts.
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For Supreme Court territory is wider as includes entire India
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High Court may refuse to issue writs and 226 is not fundamental right, but Article 32 being a fundamental right itself, Supreme Court cannot (Hence, Supreme Court is ultimate defender and guarantor of fundamental rights.
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Habeas Corpus: 'to have the body of'. Order issued by the court to a person who has detained another person, to produce the body of the latter before it. Examines the cause and legality of detention. Set free it detention is found to be illegal. Protection of individuality liberty against detention.
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It is both against State and Private Citizen and Principle of Locus Standi does not apply. Writ is not issued (a) lawful, (b) contempt of a legislature or a court, (c) detention is by a competent court, (d) outside the jurisdiction of the court.
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Mandamus: '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.
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Filed only by aggrieved person (Principle of Locus Standi applies).
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The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president, governor, chief justice of a high court acting in judicial capacity.
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Prohibition: 'to forbid'. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding/usurping its jurisdiction.
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The writ of prohibition can be issued only against judicial and quasi-judicial authorities.
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Certiorari: 'to be certified/informed'. It is issued by a higher to a lower court/tribunal either to transfer a case or to squash the order. 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.
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Till recently, the writ of certiorari could be issued against judicial, quasi-judicial authorities and administrative authorities. Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.
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Quo-warranto: '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, preventing illegal usurpation of public office by a person.
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The writ can be issued only in case of a substantive public office of a permanent character created by a statue of by the Constitution. It cannot be issued in cases of ministerial office or private office.
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Present Position of Right to Property
Originally fundamental rights Article 19(1)(f) guaranteed to every citizen
the right to acquire, hold and against deprivation of his property. State can
acquire on two conditions: (a) it should be for public purpose, and (b) it
should provide for payment of compensation (amount) to the owner.
Lot of controversy merged. Many amendments done which introduced Article 31
A, B, C to prevent Judicial Review of certain laws. So, finally 44th CAA, 1978
removed repeating Article 19(1)(f) and Article 31 from Part III. 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 and a constitutional right. Not a Fundamental
Right as it is not a part of the basic structure of the Constitution.
- It can be regulated i.e. curtailed, abridged or modified merely by an ordinary law of the Parliament (no CAA needed).
- Protection only against executive action (not legislative).
- No Guaranteed right to compensation in case of acquisition or requisition of the private property by the state.
What is the Exception to state acquisition
These are the two cases where compensation is guaranteed in case of acquisition requisition of the private property by the Stat are:
- Whe the State acquires the property of a majority educational institution (Article 30); and
- When the State acquires the land by a person under his personal cultivation and the land is within the statutory ceiling limits (Article 31 A).
List of the Articles 12-35
12. Definition of State
13. laws inconsistent with or in derogation of the Fundamental Rights.
Right to Equality
14. Equality before law
15. Prohibition of discrimination on grounds of religion, race, caste, sex or birth place
16. Equality of opportunity in matters of public employment
17. Abolition of untouchability
18. Abolition of titles
Right to Freedom
19. Protection of certain rights regarding freedom of speech, etc.
20. Protection in respect of conviction for offences
21. Protection of life and personal liberty
21A. Right to education
22. Protection against arrest and detention in certain cases
Right Against Exploitation
23. Prohibition of traffic in human being and forced labour
24. Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
25. Freedom of conscience and free profession, practice and propagation of religion
26. Freedom to manage religious affair
27. Freedom as to payment of taxes for promotion of any particular religion
28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions
Cultural and Educational Rights
29. Protection of interests of minorities
30. Right of minorities to establish and administer educational institutions
31. Compulsory acquisition of property - (Repealed)
Saving of Certain Laws
31A. Saving of laws providing for acquisition of estates, etc.
31B. Validation of certain Acts and Regulations
31C. Saving of laws giving effect to certain directive principles
31D. Saving of laws in respect of anti-national activities - (Repealed)
Right to Constitutional Remedies
32. Remedies for enforcement of rights conferred by this part
32A. Constitutional validity of State laws not to be considered in proceedings under Article 32 - (Repealed)
33. Power of Parliament to modify the rights conferred by this part in their application to forces, etc.
34. Restriction on rights conferred by this part while martial law is in force in any area
35. Legislation to give effect to the provisions of this part
Article 14 - Equality before Law and Equal Protection of Laws
There is not a fundamental difference in the motive, motive is to upheld laws and the natural justice. However, there is a fundamental difference in the way they approach it.
- State shall not deny to any person (means legal person and includes citizen, foreigners, corporation, companies, registered societies) equality before the law or the equal protection of the laws within the territory of India. (Rule of Law: basic feature of Indian Constitution, hence no amendment).
- Equality Before Law: (a) Absence of any special privileges, (b) all persons are subjected to the same ordinary law of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high or low, official or non-official) is above the law.
Equal Protection of Law
Positive concept from USA and it deals with equality of treatment under equal
circumstances, both in the privileges conferred and liabilities imposed by the
laws. Similar application of the same laws to all persons who are similarly
situated.
Exceptions- President and Governor (Article - 361)
- not answerable to any court for the exercise of the powers and duties of their office
- no criminal proceedings or arrest warrant against them while they are in office
- 2 months notice before civil proceeding
Similarly, no MP/MLA 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 and Article194). Foreign diplomats, U.N. and its agencies:
They are immune from criminal and civil proceedings.
Article - 15
State shall not discriminate against any citizen on grounds only
of religion, race, caste, sex or birth place. 'Discrimination' means to make an
adverse distinction with regard to' or 'to distinguish unfavourably from others'
while 'only' word infers that discrimination on other grounds is not prohibited.
No citizen shall be subjected to any disability, liability, restriction on
grounds only of religion, reace, caste, sex, or birth place with regard
to (a) access to shops, public restaurants, hotels and places of public
entertainment; or (b) 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.
Exceptions- Special provision for women and childlen. For e.g., reservation of seats for women in local bodies or right to education.
- The state is permitted to make any special provision for the advancement of any socially and any educationally backward classes of citizens or foe the SCs and STs. For example, reservation of seats or fee concessions in public educational institutions.
- The state is empowered to make any special provision for the advancement of any SEBC/SCs/STs regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.
Article - 16: Equality of Opportunity in Public Employment
[1]. It deals with equality of opportunity for all citizens
in matters relating to employment or appointment to any office under the State.
[2]. No citizen shall, on grounds only of religion, race,
caste, sex, descent, birth place, residence or any of them, be ineligible for,
or discriminated against in respect of, any employment or office under the
State.
[3]. Nothing in this article shall prevent Parliament from
making any law prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or other
authority within, a State or Union territory, any requirement as to residence
within that state or Union territory prior to such employment or appointment.
[4]. Provision for the reservation of appointments or posts
in favour of any backward class of citizen which, in the opinion of the State,
is not adequate represented in the services under the State.
[4A]. Nothing in this article shall prevent the State from
taking any provision for reservation in matters of promotion (77th CAA), with
consequential seniority (85th CAA), to any class or classes of posts in the
services under State in favour of the SCs and Sts which, in the opinion of the
State, are not adequately represented in the services under the State.
[4B]. Carry Forward Rules: State can consider any
unfilled vacancies of a year which are reserved for being filled up in that
year in accordance with any provision for reservation made under clause [4] or
[4A] as a separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for
determining the ceiling of 50% reservation on total number of vacancies of
that year. (81st CAA, 2000).
In Indra Sawhney Vs. Union of India, (1992) after report from
Mandal Commission, Supreme Court held that reservation shall not exceed 50%
except in some extra ordinary situation. This rule will need to be applied every
year. But in some states, it exceeds that limit. For example - 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%
reservation.
Article - 17 : Abolition of Untouchability
Absolute right (can't be suspended at any time, available against private individual also, no exception). Untouchability is not be taken literally but the practice as it had developed historically in the country, imposing social restriction on certain classes of persons by reason of their birth in certain castes.
A person convicted of the offence of 'untouchability' is
disqualified for election to the Parliament or state legislature. Under the
Protection of Civil Rights Act (1955), the offences committed on the ground of
untouchability are as follows:
- Preventing any person from entering any place of public worship or from worshipping therein;
- justifying untouchability on traditional, religious, philosophical or other grounds;
- denying access to any shop, hotel or place of public entertainment;
- insulting a person belonging to scheduled caste on the ground of untouchability;
- refusing to admit persons in hospitals, educational institutions or hostels established for public benefit;
- preaching untouchability directly or indirectly; and
- refusing to sell goods or render services to any person.
Article - 18 : Abolition of Titles
It abolishes titles and makes four provisions in that regards:
- State can't confer any title (except a military or academic distinction) on anyone.
- No citizen of India shall accept 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.
Basically it is dome to counter the colonial mentality,
hereditary titles of nobility like Maharaja, Raja Saheb, Raj Bahadur, etc, are
banned because these are against the principle of equal status of all. National
awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri, were
discontinued by Morarji Desai government from 1977 to 1980. However, In 1996,
Supreme Court ruled that they are given on the basis of merit and do not amount
to 'titles' within the meaning of Article 18.
Right to Freedom
Article 19 provides 6 rights like 19(1)(a) to 19(1)(g)(f was
deleted by 44th CAA, 1978). They are available to individuals and shareholders
in a company (citizens) only against state.
(a) Right to freedom of speech and expression: Every citizen can
express his belief and opinions by almost any means possible. Broad
interpretation and includes: Propagate other's view, press, commercial
advertisements, telecasting, RTI, silence, peaceful demonstration; freedom
against strike, pre censorship, telephonic tapping, bandh etc.(b) Right to assemble peaceably and without arms; public meetings, demonstrations and take out processions, no right to strike.
- Under Section 144 of CrPC, a magistrate can restrain an assembly if any unlawful activity is suspected.
- Under Section 141 of IPC, as assembly of 5 or more persons becomes unlawful it the object is (a) to resist the execution of any law or legal process; (b) to forcibly occupy the property of some person; (c) to do an illegal act; and (e) to threaten the government or its officials on exercise lawful powers.
- 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.
- Prostitutes and AIDS
- The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.
- Internal Travel (given by Article 19) External Travel (given by Article 21)
(e) To reside and settle in any part of the territory of
India: 2 dimensions: (a) the right to reside in any part of the country,
which means to stay at any place temporarily, and (b) the right to settle in any
part of the country, which means to set up a home or domicile at any place
permanently. Similarly reasonable restrictions (regulation of prostitutes and
habitual offenders), complementary to freedom of movement.
(g) To practice any profession, or to carry on any
occupation, trade or business: includes all the means of earning one's
livelihood. Not include trade which are immoral (trafficking in women or
children) or dangerous (harmful drugs or explosives, etc). The State can
absolutely prohibit these or regulate them through licensing.
Reasonable Restriction
GENERAL : SUI of India, security, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.
SPECIFIC : Movement and residence - interest of general public and STs; Trade, business - professional or technical qualifications and partial or complete monopoly of state over means of production or service delivery.
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