FUNDAMENTAL RIGHTS |
- Article 12-35 of Part III of constitution.
- Inspired from Constitution of USA (Bill of Rights) + Fundamental for all round development: Material, intellectual, moral and spiritual + Magna carta of india + Justiciable + Guaranteed to all subjected to reasonable restriction + Ideal of political democracy + Limitations on the tyranny of the executive and arbitrary of laws of legislature + Harmony between FR and DPSP is part of basic structure of the constitution.
INITIALLY, SEVEN FUNDAMENTAL RIGHTS: |
- Right to Equality (Article 14-18)
- Right to Freedom (Article 19-22)
- Right against Exploitation (Article 23-24)
- Right to Freedom of religion (Article 25-28)
- Cultural and Educational right (Articles 29-30)
- Right to Property (Article 31) à now Article 300A- 44th Amendment Act ,1978 (Legal Right)
- Right to Constitutional Remedies (Article 32)
At present only 6 Fundamental Rights – right to property (moved)
FEATURES OF FUNDAMENTAL RIGHTS |
- Some only available to Indian citizen- Article 15, Article 16, Article 19, Article 29 and Article 30)
- Not Absolute but Qualified – Subjected to reasonable restrictions
- All are available against the arbitrary action of the state
- Some are negative in character and some are positive.
- Not sacrosanct or permanent – can be amended by parliament
- Except article 20 & 21, all other rights get suspended during National Emergency (Art. 352)
- 19 can be suspended only during ground of war or external aggression (External Emergency) and not on the ground of armed rebellion (Internal Emergency).
- Scope of operation is limited by Art.31A (saving of laws providing for acquisition of estates), Art.31B (validation of certain acts and regulations included in the 9th schedule) and Art.31C (saving of laws giving effect to certain directive principles)
- Can be restricted while martial law is in force (Art. 34)
- Most are self- executory. For some law can be made only by parliament and not by state legislature.
FUNDAMENTAL RIGHTS |
Right to Equality (Art. 14-18) |
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Right to Freedom (Art. 19-22) |
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Right Against Exploitation
(Art. 23-24) |
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Right to Freedom of Religion (Art. 25-28) |
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Cultural and Educational Rights (Art. 29-30) |
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Right to Constitutional Remedies (Art. 32) |
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FUNDAMENTAL RIGHTS AND CONSTITUTIONAL PROVISIONS |
ARTICLES | DESCRIPTION |
Article 12 |
• Art.12 has defined the term “State” includes: Govt. and parliament + Govt. and legislature of states + All local authorities that is 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 |
• 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
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• 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 right 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:
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Article 15 |
• 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 educational backward classes of citizens or for SCs and STs + for advancement of any socially and educational 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 order in 2019à10% reservation to EWS in admission to educational institutions. |
Article 16 |
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 religious or denominational institution or a member of its governing body should belong to the particular religion or denomination. 4. State à permitted to make a provision for the reservation of upto 10% of appointment of post in favour of any EWS of citizen.
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Article 17 |
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Article 18 |
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RIGHT TO FREEDOM (ART. 19): Article 19 Guarantees to all citizen the six rights. These are: |
- Originally article 19 had 7 rights à right to property deleted by 44th Amendment Act 1978 à 300A
- Right to freedom of speech and expression
- Right to assemble peaceably and without arm
- Right to form associations or unions or cooperatives societies
- Right to move freely throughout the territory of India
- Right to reside and settle in any part of the territory of India
- Right to practice any profession or to carry on any occupation, trade or business
- These six rights are protected against only state action and not private individuals. Only to Citizens [not foreigners and legal entities]
- State can impose reasonable restriction on these 6 rights solely on the grounds mentioned in article 19 itself and not on other grounds.
Freedom of Speech and Expression Article 19 (1): |
THE SUPREME COURT HELD THAT FREEDOM OF SPEECH CONTAINS THE FOLLOWING:
1. Right to propagate one’s views as well as views of others 2. Freedom of press 3. Freedom of commercial advertisements 4. Right 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. |
Freedom of Assembly: Article 19 (2): |
REASONABLE RESTRICTION:
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Freedom of association Article 19 (3): |
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Freedom of movement Article 19 (4): |
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Freedom of residence Article 19 (5): |
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Freedom of profession Article 19 (6): |
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Article 20
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NO EX-POST –FACTO LAW: No person shall be Convicted of any offence except for violation of a law in force at the time of the commission of the act nor Subjected to a penalty greater than that prescribed by the law in force at the time of commission of offence + only on criminal law not on civil laws or tax laws + cannot be claimed in case of preventive detention or demanding security from person. | |
NO DOUBLE JEOPARDY: No one shall be prosecuted punished for same offence more than once.
Note: Only on proceedings before a court of law or judicial tribunal i.e. For bodies which are judicial in nature. |
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NO SELF INCRIMINATION: No person accused of any offence shall be compelled to be a witness against himself [extends to both oral and documentary evidence. Do not extend to civil proceedings or proceedings which are not of criminal nature]. | |
Article 21 |
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Article 21A |
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Article 22 |
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Article 23
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Article 24 |
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Article 25
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Article 26
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Art -25 | Art -26 |
Freedom of Conscience and Free Profession, Practice and Propagation of Religion. | Freedom to Manage Religious Affairs. |
Art. 25 guarantees rights of individuals. | Art. 26 guarantees rights of religious denominations or their sections. |
Art. 26 protects individualistic freedom of religion | Art. 26 protects collective freedom of religion |
Rights under Art. 25 are subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights. | Like Art. 25, the rights under Art. 26 are also subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights. |
Article 27
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Article 28
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· 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
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Article 29
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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 words ‘section of citizens’ in the Art. 29 that include minorities as well as majority. |
Article 30
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Article 32
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SUPREME COURT | HIGH COURT |
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WRIT –TYPES AND SCOPE |
- Supreme Court and High court can issue: Habeas corpus, Mandamus, Prohibition, Certiorari & Quo-warranto
- Borrowed from English à prerogative writs = fountain of justice
HABEAS CORPUS |
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MANDAMUS |
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PROHIBITION |
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CERTIORARI |
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QUO WARRANTO |
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Article 33 |
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Article 34 |
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Article 35 |
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MARTIAL LAW | NATIONAL EMERGENCY (ART- 352) |
It affects only Fundamental Rights. | It affects not only Fundamental Rights but also Centre-state relations, distribution of revenues and legislative powers between centre and states and may extend the tenure of the Parliament. |
It suspends the government and ordinary law courts. | It continues the government and ordinary law courts. |
It is imposed to restore the breakdown of law and order due to any reason. | It can be imposed only on three grounds–war, external aggression or armed rebellion. |
It is imposed in some specific area of the country. | It is imposed either in the whole country or in any part of it. |
It has no specific provision in the Constitution. It is implicit. | It has specific and detailed provision in the Constitution. It is explicit. |
EXCEPTIONS TO FUNDAMENTAL RIGHTS:
- Saving of laws providing for acquisition of estates
- Variation of certain acts and regulations: 9th schedule
- Saving of laws giving effect to certain directive principles
CRITICISM OF FUNDAMENTAL RIGHTS | SIGNIFICANCE OF FUNDAMENTAL RIGHTS |
Excessive limitations + No social and economic rights + No clarity + No permanency + Suspension during emergency + Expensive remedy + Preventive detention + No consistent philosophy | Bedrock of democratic system in the country + Formidable bulwark of individual liberty + Ensure dignity and respect of individual + Strengthen secular fabric of Indian state + Protect the interest of minority |
RIGHTS OUTSIDE PART III |
- No tax shall be levied or collected except by authority of law- article 265 (part XII)
- No person shall be deprived of his property save by authority of law- article 300-A (part XII)
- Trade, commerce and intercourse throughout the territory of india shall be free –article-301 (Part XIII)
FUNDAMENTAL RIGHTS | DPSPs | FUNDAMENTAL DUTIES |
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