FUNDAMENTAL RIGHTS (UDAAN)

ESSENTIALS OF FUNDAMENTAL RIGHTS IN INDIA: A CITIZEN’S GUIDE #

(Art. 14-18)

• Equality before Law – article 14
• Prohibition of discrimination based on grounds of religion, race, caste etc. (Article 15)
• Equality of opportunity in matters of public employment (article 16)
• Abolition of Untouchability (article 17)
• Abolition of titles (article 18)

(Art. 19-22)

• Protection of six Fundamental Rights regarding freedom of: (i) speech and expression (ii) assembly (iii) association (iv) movement (v) residence & (vi) profession – Art. 19
• Protection in respect of conviction for offences – Art. 20
• Protection of life and personal liberty – Art. 21
• Fundamental Rights to elementary education – Art. 21 A
• Protection against arrest and detention in certain cases – Art. 22

(Art. 23-24)

• Prohibition of traffic in human beings and forced labour – Art.23
• Prohibition of employment of children in factories etc. – Art.24

(Art. 25-28)

• Freedom of conscience and free profession, practice and propagation of religion- Article 25
• Freedom to manage religious affairs – Article 26
• Freedom from payment of taxes for promotion of any religion –Article 27
• Freedom from attending religious instruction or worship in certain educational institutions – Article 28

• Protection of language, script and culture of minorities – Article 29
• Fundamental Rights of minorities to establish and administer educational institution- Article 30

• Fundamental Rights to move the supreme court for enforcement of fundamental rights (Part of basic structure Doctrine) – Article 32

• Art.12 has defined the term “State” includes: Govt. and parliament + Govt. and legislature of states + All local authorities that are municipalities, panchayat, district boards, improvement trust etc. + All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL etc.
• ACCORDING TO SUPREME COURT: even a private body or an agency working as an instrument of the state falls within the meaning of state under the article 12

• Article 13 – All “laws” that are inconsistent with or in derogation of any of the fundamental rights shall be void.
• Term “law” denotes: 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- order, byelaw, rule, regulation or notification + Non legislative sources of law that is custom or usage having force of law.
• These can be challenged in the courts as violating FR and hence can be declared as void.
• Article 13 provides for judicial review
• Article 13 doesn’t include constitutional amendment as a law and cannot be challenged. However the supreme court held in Kesavananda Bharati case (1973) that constitutional amendment can be challenged on the ground that it violates a fundamental right that forms the’’ Basic structure’’ of the constitution and hence can be declared as void.

• Article 14: Right to Equality à Equality before Law (British notion + Negative notion) + Equal Protection of laws (American concept + positive notion).
• Article 14: the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• EQUALITY BEFORE LAW (BRITISH ORIGIN): Absence of any special privileges in favour of any person + Equal subjection of all persons to the ordinary law of the land administered by ordinary law courts + No person is above law.
• EQUAL PROTECTION OF LAW (AMERICAN CONSTITUTION): Equality of treatment under equal circumstances, both in privileges conferred and liabilities imposed by the laws + Similar application of the same laws to all person who are similarly situated + Like should be treated alike without any discrimination
• Confers Fundamental Rights on all persons (citizens and foreigners) and includes Legal Persons (statutory corporation, companies, registered societies or any other type of legal person).
• RULE OF LAW: The concept of ‘Equality before Law’ à Rule of law à A V Dicey
• Rule of law à Basic Feature of the constitution.
• EXCEPTIONS TO EQUALITY:
• President of India and Governor + Foreign sovereigns and diplomats + UNO and its agencies
• Article 31C (The Supreme Court held that where Article 31-C Comes in, Article 14 goes out)
• Article -361A: No person liable for any civil or criminal proceedings in any court in respect of publication in news reports of true reports of any proceedings of parliament or state legislature.
• Article -105: Parliamentary privilege of members of parliament
• Article -194: privileges of state legislature in the legislature or any committee thereof.

• Article 15: Prohibition of Discrimination on Certain Grounds à State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
• This provision prohibits discrimination both by the State and private individuals.
• Article 15(3) and 15(4) are foundational bricks of reservation in the country.
• Four exception to this general rule of non-discrimination: “State is permitted to make any special provision”: for women and children + for advancement of any socially and educationally backward classes of citizens or for SCs and STs + for advancement of any socially and educationally backward classes of citizens or for scheduled caste and schedules tribes regarding their admission to educational institutions including private educational institutions whether aided or unaided by state except minority educational institutions + for advancement of any economically weaker section of citizens.

RESERVATION FOR OBC IN EDUCATIONAL INSTITUTIONS:

Exception in article 15 (C) à 93rd amendment act = Enacted Central Educational Institutions (reservation in admission) Act, 2006 à quota for 27% reservation for OBC in all central higher educational institutions including the IITs and the IIM. 

RESERVATION FOR EWS IN EDUCATIONAL INSTITUTIONS:

The above exception (C) was added by the 103rd Amendment Act of 2019 à central government issued an order in 2019à10% reservation to EWS in admission to educational institutions.

• Article 16: 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.

FOUR EXCEPTIONS TO GENERAL RULE OF EQUALITY OF OPPORTUNITY:

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 [ only in Andhra Pradesh and Telangana]

2. The state can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in state services

3. A law can provide that the incumbent of an office related to a religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

4. State – permitted to make a provision for the reservation of upto 10% of appointment of post in favour of any EWS of citizen.

• Abolition of Untouchability: forbids untouchability in any form à Untouchability (offences) Act,1955 = 1976 amended and renamed as Protection of Civil Rights Act.
• Untouchability – Not defined in Constitution or in the act
• Mysore high court: “subject matter of article 17 is not untouchability in literal or grammatical sense but the but ‘practice as it had developed historically in country’ à social disability imposed on certain classes
• Does not cover the social boycott of a few individual or their exclusion from religious services etc.
• Available against private individuals and the constitutional obligation of the state to take necessary action to ensure that this Fundamental Rights is not violated.

• 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.
• In 1996, the Supreme Court upheld the constitutional validity of the National Awards–Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri.
• SC ruled that these awards do not amount to ‘titles’ within the meaning of Art. 18 that prohibits only hereditary titles of nobility.
• SC also ruled that they should not be used as suffixes or prefixes to the names of awardees. Otherwise, they should forfeit the awards.
• 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.

Article 19 (1):

1. Fundamental Rights to propagate one’s views as well as views of others

2. Freedom of press

3. Freedom of commercial advertisements

4. Fundamental Rights against tapping of telephonic conservation

5. Right to telecast, that is, government has no monopoly on electronic media

6. Right against bundh called by a political party or organization

7. Right to know about government activities

8. Freedom of silence

9. Right against imposition of pre-censorship on a newspaper

10. Right to demonstration or picketing but not right to strike

REASONABLE RESTRICTION: Sovereignty and integrity of India + Security of the state + Friendly relations with foreign states + Public order + Decency + Morality + Contempt of court + Defamation + Incitement to an offence.

Article 19 (2):

• Right to assemble peaceably and without arms – All Citizens
• Right to hold public meetings, demonstration and take out processions
• Only on public land + peaceful + unarmed.
• Does not protect violent, disorderly, riotous assemblies or one that causes breach of public peace or involves arms
• Does not include Right to Strike

REASONABLE RESTRICTION:

• Sovereignty and integrity of India + Public order
• Section 144 – Criminal procedure Code (1973): Magistrate can restrain an assembly, meeting or procession à risk of obstruction, annoyance or danger to human life, health or safety or disturbance of public tranquility or riot or any affray.
• Section 141 of IPC: Assembly of five or more persons becomes unlawful if the object:
• To resist execution of any law or legal process
• To forcibly occupy the property of some person
• To commit any mischief or criminal trespass
• To force someone to do an illegal act
• To threaten govt officials on exercising lawful powers

Article 19 (3):

• Article 19(3): All citizens have the right to form association or unions or cooperative societies:
• RIGHT TO FORM: Political Parties + companies + partnership firms + societies, clubs + organizations + trade unions or anybody of persons.
• Includes right to continue with the association
• Includes negative right of not to form or join an association or union
• Reasonable restrictions: Sovereignty of India + Integrity of India + Public order + Morality.
• Right to obtain recognition of association is not a fundamental right.
• Supreme Court held that trade union:
• Have no guaranteed right to effective bargaining
• Have no right to strike
• Have no right to declare lockout. Hence can be controlled by an appropriate industrial law.

Article 19 (4):

• Every citizen right to move freely – state to state & within state
• Unity of india – promote national feeling
• RESTRICTIONS: Interest of general public + Protection of interests of any scheduled tribe
• SUPREME COURT: movement of prostitutes can be restricted on grounds of public health and morals.
• Internal freedom of movement: right to move inside the country – art. 19
• External freedom of movement: right to move out of the country – art. 21

Article 19 (5):

• Right to reside and settle in any part of territory of India.
• Intended to remove internal barriers within the country
• RESTRICTIONS: Interest of general public + Protection of interests of any scheduled tribe.
• In many parts of the country, the tribals have been permitted to regulate their property Fundamental Rights in accordance with their customary rules and laws
• Right to residence and right to movement are complementary to each other.

Article 19 (6):

• All citizens are given the right to practice any profession or to carry on any occupation, trade and business.
• Very wide à all means of earning one’s livelihood
• STATE IS EMPOWERED TO:
• Prescribe professional / technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business;
• Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.
• State is not required to justify its monopoly.
• Does not include Fundamental Rights to carry on a profession or business or trade or occupation that is immoral or dangerous –state can absolutely prohibit these or regulate them through licensing.

• Article 20– Protection against arbitrary and excessive punishment to an accused person—Citizen, or foreigner or legal person like a company or a corporation.

Note: Only on proceedings before a court of law or judicial tribunal i.e. For bodies which are judicial in nature.

• Article 21: no person shall be deprived of his life or personal liberty except according to procedure established by law.
• GOPALAN CASE (1950): SUPREME COURT –
• Protection under article 21 is available against arbitrary executive action and not from arbitrary legislative action.
• Personal liberty = only liberty relating to the person or body of an individual.
• MANEKA GANDHI CASE (1978): wider interpretation of article 21 –
• Fundamental Rights to life and personal liberty of person cannot be deprived by law provided the procedure prescribed by that law is reasonable, fair and just.
• Fundamental Rights to life = Fundamental Rights to live with human dignity
• Personal liberty = widest amplitude and it covers a variety of Fundamental Rights that go to constitute personal liberties of a man.

• Article 21A – state shall provide free and compulsory education to all children of the age of six to fourteen years – in such manner the state may determine.
• 86th Amendment act – 2002 – Education for All – “Dawn of the second revolution in chapter of citizens Fundamental Rights“
• Article 45 in part IV – directive principles of state policy – provision for free education
• Now changed – state shall endeavor to provide early childhood care and education to his children until they complete age of 6 years
• Article 51 a – shall be duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years
• 1993 – Supreme court recognized Fundamental Rights to free education under article 21

• Article 22: grants protection to persons who are arrested or detained
• Preventive detention – without trial and conviction by court
• Punitive detention – punishment after trial and conviction
• Art. 22 (1) – This first part of Art. 22 confers the following Fundamental Rights on a person who is arrested or detained under an ordinary law: Fundamental Rights to be informed of the grounds of arrest + Fundamental Rights to consult and be defended by a legal practitioner + Fundamental Rights to be produced before a magistrate within 24 hour including the journey time + Fundamental Rights to be released after 24 hours unless the magistrate authorises further detention.
• These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.
• Art. 22(2) – This second part 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.
• The detention of a person cannot exceed three months unless the advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.
• Art. 22 also authorises the Parliament to prescribe: 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 + maximum period for which a person can be detained in any classes of cases under a preventive detention law + procedure to be followed by an advisory board in an inquiry.
• The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India.

• Article 23: Prohibition of traffic in human beings and forced labour
• This Fundamental Rights is available to both citizens and non-citizens.
• It protects the individual from both, against the State and private persons.
• Art. 23 permits the State to impose compulsory service for public purposes E.g. military service or social service, for which it is not bound to pay.
• NOTE: The ’Age’ is not mentioned in Article 23.
• 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.

• Art. 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway.
• It does not prohibit their employment in any harmless or innocent work.
• 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 Fundamental Rights and Children’s Courts for providing speedy trial of offences against children or of violation of child Fundamental Rights.

• Article 25: Right to freedom of religion: All persons are equally entitled to freedom of conscience and Fundamental Rights to freely profess, practice and propagate religion.
• Right to propagate does not include a Fundamental Rights to convert another person to one’s own religion.
• Art. 25 covers religious beliefs (doctrines) + religious practices (rituals)
• EXCEPTIONS: public order + morality + health + other provisions relating to fundamental rights + Right to propagate does not include Fundamental Rights to convert.

• Art. 26 – every religious denomination or any of its section shall have the following Fundamental Rights: Right to establish and maintain institutions for religious and charitable purposes + Right to manage its own affairs in matters of religion + Right to own and acquire movable and immovable property + Right to administer such property in accordance with law.

• Article 27– freedom from taxation for promotion of religion: No person shall be compelled to pay any taxes for promotion or maintenance of any particular religion or religious denomination.
• Provision prohibits the state from favoring, patronizing and supporting one religion over the other à taxes can be used for promotion or maintenance of all religion.
• Prohibit Tax Not Fee.

• Article 28 – Freedom from attending religious instruction: No religious instruction shall be provided in any educational institution wholly maintained out of state funds.
• 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 four types of educational institutions:

1. Institution wholly maintained by the state-completely prohibited

2. Institution administered by the state but established under any endowment or trust-religious instruction is permitted

3. Institution recognised by state

4. Institution receiving aid from the state 

• Article 29 – 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.
• 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.
• Art. 29(1) – Provision protects the right of a group
• Art. 29(2) – Provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs.
• Article 29 grants protection to both religious minorities as well as linguistic minorities.
• The Constitution of India does not define “minorities”.
• SC HELD THAT:

1. The right to conserve the language includes the right to agitate for the protection of the language.
2. The scope of this article is not necessarily restricted to minorities only. This is because of the use of the words ‘section of citizens’ in the Art. 29 that include minorities as well as majority.

• Article 30 – Right of Minorities to Establish and Administer Educational Institutions. Art. 30 grants the following Fundamental Rights to minorities (religious or linguistic):
• All minorities have right to establish and administer educational institutions of their choice
• Compensation amount fixed by state for compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate right guaranteed to them- added by 44th amendment act.
• In granting aid, the state shall not discriminate against any educational institution managed by a minority.
• Protection guaranteed under article 30 is confined only to minorities and doesn’t extend to any section of citizens as under article 29.
• NOTE: Protection under Art. 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Art. 29).

• Article 32: Right to constitutional remedies for the enforcement of the Fundamental Rights of an aggrieved citizen + Part of Basic feature.
• The right to get the FR protected is in itself a fundamental right, it makes FR real.
• The SC has been constituted as the defender and guarantor of the FR of the citizens.
• Ambedkar: “an article without which this constitution be a nullity. It’s the very soul of the constitution and the very heart of it”.
• Four provisions in Article 32: Right to move to SC + SC have power to issue writ + Parliament can empower any other court to issue directions, or order and writs of all kind + Rightmove the supreme court shall not be suspended except as otherwise provided by the constitution.

• Article 32: Original jurisdiction, not exclusive
• Party should first move to High Court
• Only fundamental right can be enforced
• Territorial jurisdiction is wider than the high court.
• Cannot refuse to exercise its writ jurisdiction. Hence defender and guarantor of fundamental rights of citizens.

• Article 226: Exclusive and original jurisdiction
• Legal and constitutional right, customary right
• Wider writ jurisdiction
• Narrower territorial jurisdiction
• May refuse

• Meaning: “to have the body of” + Order issued by court to the person who has detained another person, to produce the body of the latter before it.
• Bulwark of individual liberty against arbitrary detention + Only against illegal detention + Against both private and public
• Not issued when: Detention is lawful + Proceedings for contempt of court + Detention is by competent court + Detention is outside the jurisdiction of court.

• Meaning: “we command”
• Directs activity + Command issued by the court to public officials asking him to perform his official duties that he has failed or refused to perform.
• Against any public body, corporation, inferior court, tribunal or government for the same purpose.
• Cannot be issued: Against private individual or body + To enforce departmental instruction that does not possess statutory force + When duty is discretionary + To enforce contractual obligation + Against president or governor + against chief justice of high court acting in judicial capacity.

• Meaning: “to forbid”
• Issued by higher court to lower court + Prohibition directs inactivity + Issued only against judicial and quasi-judicial authorities
• Not available against: Administrative Authorities + Legislative bodies + Private individuals and bodies.

• Meaning: ‘To be certified or informed’
• Issued by higher court to lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of latter in the case
• Both preventive and curative
• Can be issued against: Judicial and quasi-judicial authority
• 1991 supreme court ruled: can be issued against administrative authority also – when it affects the rights of individuals.
• Not against: Legislative bodies + Private individuals or bodies.

• Meaning: “By what authority or warrant”
• Issued by court to enquire into legality of claim of person to public office
• Prevents illegal usurpation of public office by person
• Issued only in case of substantive public office by person
• Cannot be issued: Ministerial office Private office
• Can be sought by any interested person, not necessarily by an aggrieved person.

• Art. 33 empowers the Parliament to restrict or abrogate the FR of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces.
• The power to make laws under Art. 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.
• A parliamentary law enacted under Art. 33 can also exclude the court martial (tribunals established under the military law) from the writ jurisdiction of the SC and HC, as far as the enforcement of FR is concerned.

• Art. 34 – Provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India.
• It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force.
• Martial law implies the suspension of ordinary law and the government by military tribunals.
• The concept of martial law has been borrowed from the English common law.
• Expression “martial law” (military rule) has not been defined anywhere in the Constitution.
• It is implicit in Art. 34 under which martial law can be declared in any area within the territory of India.

• Art. 35 – The power to make laws, to give effect to certain specified FR shall vest only in the Parliament and not in the state legislatures.
• This provision ensures uniformity throughout India with regard to the nature of those FR and punishment for their infringement.
• The Parliament shall have (and the legislature of a state shall not have) power to make laws with respect to: Prescribing residence as a condition for certain employment or appointments (Art. 16) + Empowering courts other than the SC and HC to issue directions, orders and writs of all kinds for the enforcement of FR (Art. 32) + Restricting or abrogating the application of FR to members of armed forces, police forces, etc. (Art. 33) + Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Art. 34).
• Parliament shall have (and the legislature of a state shall not have) powers to make laws for prescribing punishment for those acts that are declared to be offences under the FR. These include the following: Untouchability (Art. 17) + Traffic in human beings and forced labour (Art. 23)
• Art. 35 extends the competence of the Parliament to make a law on the matters specified above although some of those matters may fall within the sphere of the state legislatures (State List).

• Justiciable
• Political justice
• Legal sanction
• Personal and individualistic
• Automatically enforced
• Courts can declare a law as unconstitutional if it violates fundamental rights

• Non justiciable
• Economic and social justice
• No legal sanction
• Societarian and socialistic
• Not Automatically enforced
• Courts cannot declare unconstitutional

• Mere duties
• No force of sanction as such need special laws to enforce sanction
• Not Automatically enforced