Chapter 9: FUNDAMENTAL RIGHTS

Introduction

Constitution guarantees certain minimum rights to all citizens and aliens [with some exceptions] of India. These are applicable not only to people but also organizations [with some exceptions]. They are justifiable, enforceable by courts. Inspired from USA constitution.

Total 6 rights are present. Right to property was turned into a legal right.

Features of fundamental rights:

  1. Government can impose reasonable restrictions on them on certain grounds. These grounds can be challenged by courts.
  2. Some protect against arbitrary action of state and individual but most protect against action by state.
  3. They can be curtailed during emergencies. Or martial law.
  4. Their application to armed forces, police can be restricted or abrogated.
  5. An aggrieved person can move the SC directly for protection.
  6. Only parliament not state legislatures can make laws to enforce these fundamental rights and punish those who break / deny them so that uniformity is maintained throughout India.

The definition of State is all executive and legislative bodies of State and Union and all local government bodies. It includes statutory and non statutory organisations. A private body acting as an agent of state is also included.

 

Judicial Review

Supreme Court and high courts can declare a law null and void if it violates the fundamental rights. Law includes an act, ordinance, rules and regulations, bylaws, customs or norms. Earlier constitution amendment wasn’t covered in the ambit but SC ruled that even an amendment can be challenged.

Both SC and HC have the power of judicial review. Hence the Supreme Courts jurisdiction in such matters is original but not exclusive.


Fundamental Rights

Right to Equality [art 14-18]: 


Equality before the law and equal protection of law [Article 14]: This right applies to citizens, aliens and legal persons. Equality before the law is of British origin it means “No one is above the law”. The second concept is of US origin it means “The like should be treated alike under equal circumstances”. This means that where equals and unequals are treated differently this article doesn’t apply.

      Equality before law is a part of Diceys “Rule of law” that has three aspects:


  1. No man can be punished except for breach of law.
  2. Equal subjection of all subjects to ordinary law administered by ordinary courts.
  3. Constitution isn’t a source of rights but a result of rights of individuals as defined and enforced by courts.

The third rule isn’t applicable to Indian system where constitution is a source of rights.

Exceptions to equality [constitutional and others]:

A.  President or governor enjoys immunity for any act [civil / criminal] done in office or during exercise of powers. The enjoy immunity from criminal proceeding even for personal actions during their term. Civil proceeding can be initiated against them for things done in personal capacity during their term only after giving a 60 day notice.

B. No person can be held liable for civil or criminal action for publication in media of a significantly true report of proceeding in legislatures of centre or state.

C. No MP / MLA can be held responsible in any court for their votes in the legislatures / anything said by them in the legislatures.

D. Diplomatic immunity to ambassadors, foreign dignitaries, UN and its agencies.

E. Laws made to implement the below articles cannot be challenged on the grounds that they violate article 14.

Article 39 (b) says: The State shall direct its policy towards securing that the ownership and Control of the material resources of the community are so distributed as best to sub serve the Common good.

Article 39 (c) says: The state shall direct its policy towards securing that the operation of the Economic system does not result in the concentration of wealth and means of production to the Common detriment.

 

Prohibition of Discrimination on Certain Grounds [Article 15]: The state cannot discriminate [make adverse distinctions] amongst citizens on grounds only [means discrimination on other grounds is allowed] of race, religion, caste, sex and birthplace.  This provision is applicable to state not private individuals. 

Second aspect is that state as well as private individuals can’t deny access to individuals on grounds only of race, religion, caste, sex and birthplace to establishments maintained by public funds.

Exceptions:

Reservations or special provisions can be made for women, children, and backward classes.


Equality of Opportunity in Public Employment [article 16]: The state can’t deny citizens from employment in public offices [not private] on grounds only [means discrimination on other grounds is allowed] of race, religion, caste, sex, place of birth or residence, descent.

Exception:

Residence can be allowed as a condition for employment for public offices of states/UT/local bodies but by act of parliament. Reservations can be made for backward classes not adequately represented in state services. Law can allow members of a religious body to be of that religion only.


Abolition of Untouchability [Article 17]:  This act is applicable for state as well as private individual and forbids practice of untouchability in any form. Protection of civil rights act prohibits the following:

  1. Preventing a person from a place of public worship, shop, hotels, public entertainment, institutions of public benefit;
  2. Refusing to sell goods or services; justifying untouchability or preaching it or insulting people of scheduled caste on grounds of untouchability.

Abolition of Titles [Article 18]: No state can confer a title other than academic or military on anyone [citizen or foreigner]. Any citizen or foreigner working for state institution can’t accept titles from foreign countries. Also to accept any present or emolument from foreign country consent of president is needed for citizens and foreigners working in state institutions.

Titles like Bharat Ratna, Padma awards were held valid.


Right to Freedom

Protection of Six Rights [Article 19]: Freedom of speech and expression [only on public grounds, peacefully and unarmed], profession [doesn’t apply to dangerous and immoral professions], movement [only internal movement in country], residence, assembly and associations [no right to strike]. A seventh right to acquire, hold and dispose property was deleted and converted to legal right.

The rights are protected against action of state but not private individual. Also they are available to citizens and shareholders of company but not aliens and legal persons viz. Corporation, institutions.

The state can impose restrictions on these rights only on grounds specified here viz. security, unity, sovereignty, integrity of India, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.

 

Protection in Respect of Conviction for Offences [Article 20]:

Protection against arbitrary and excessive punishments for offenses: It is available to citizens, aliens and legal bodies. The provisions as per law is no retrospective criminal laws can be passed [civil or tax laws are allowed], no person can be punished for same offense twice [not apply to departmental proceedings], no person can be forced to be witness against self only in criminal proceeding not civil.


Protection of Life and Personal Liberty [Article 21]: 

No person can be deprived life or liberty but as per procedure established by law but the law should be reasonable, fair and just. This is available to citizens and aliens.

 

Right to Education [Article 21 A]: This provision guarantees free and compulsory education to all between age of 6-14 yrs. Only elementary education is a right not higher education or professional.

 

Protection against Arrest and Detention [Article 22]: This article has two provisions preventive detention and punitive detention. Punitive detention is after a person is tried and convicted. Preventive detention is for preventing him from committing an offense in the future. If a person is arrested under ordinary law then he should be informed of reasons, can be defended by lawyer, should be taken to magistrate in 24 hrs and should be released after 24 hrs unless magistrate authorizes further detention.

For preventive detention the maximum period for detention is 3 months unless an advisory board of HC judges extends the period. Parliament and states can make laws for preventive detention. These laws can specify the period of detention till which a person can be held without taking him to advisory board. What is the max period of detention. Procedure to be followed by advisory board.

Preventive detention is not an integral part of the constitution of any democratic country.

 

Right against Exploitation - Prohibition of Traffic in Human Beings and Forced Labour [Article 23]: This right is available to both citizens and aliens. It is available against both State action and private persons.

Article 23 makes an exception in this regard and allows state to make service for public purposes, military or social service, compulsory without pay. However state can’t make any discrimination on grounds only of religion, class, race and caste.

Article 24 prohibits employment of children below age of 14 yrs in any factory, mine or hazardous activity.

 

Right to Freedom of Religion (Freedom of Conscience and Free Profession, Practice and Propagation of Religion) [Article 25]:  This allows all to freedom of conscience, right to propagate-profess-practice religion of choice. This doesn’t have right to convert forcibly. These rights are available to citizens and aliens.

State can have restrictions on this on certain grounds. Hindus for this article includes Sikhs, Buddhists and Jains.

Second provision is Freedom to Manage Religious Affairs [Article 26] every religious denomination can establish and maintain institutions for religious and charitable purposes, right to manage own religious affairs, buy and administer movable and immovable property.

Thus article 25 is for individuals and 26 are for religious groups.

Article 27 says that no person can be forced to pay taxes to promote a religion or maintain any religious group. State cannot spend public money for promoting any particular religion or group. But it can for all religions and groups. This article prevents state from imposing a tax for religious purpose but imposing a fee is allowed.

Article 28 says no religious instruction shall be provided in an institution maintained wholly by state funds. But for institution administered by state but established by trust for religious purposes, this provision doesn’t apply. For institutions that are recognized by the state or receive aid from state, religious instruction is permitted on voluntary basis.

 

Cultural and Educational Rights (Protection of Interests of Minorities) [Article 29]: A section of citizens [minorities and majority] living anywhere in India can conserve their language, script and culture. No person can be denied admission in an educational institution maintained by state funds or receiving aid out of state funds on grounds only of race, religion, caste, language.

This includes religious and linguistic minorities. Also there is a right to agitate for protection of a language.

 

Right of Minorities to Establish and Administer Educational Institutions [Article 30]: Includes both religious and linguistic minorities.  This allows only minorities to establish and administer educational institutes of choice. State can’t discriminate between religions for granting aid. State can’t acquire property of religious minority institutions compulsorily.

State can regulate minority institutions that seek recognition from it or aid.

 

Article 32 Right to Constitutional remedies:

This is the most important article of the constitution as it creates and empowers machinery to enforce the fundamental rights. The Supreme Court and high courts [article 226] can issue writs to protect for enforcement of these rights.

Supreme Court is thus the guarantor or guardian of fundamental rights. It is the guardian of the constitution. It has original jurisdiction in this matter i.e. a person can move the SC directly not just by way of appeals. Also the HC has original jurisdiction in matter of protection of fundamental rights.

President can suspend the right to move Supreme Court for enforcement of fundamental rights during national emergency.

Difference in writ jurisdiction of HC and SC:

SC as well as HC can issue these writs. Parliament can empower any other court for this purpose but so far it hasn’t.

SC can issue writs for enforcing fundamental rights but HC can issue writs for fundamental rights as well as for ordinary legal rights. SC can issue writs against a person or government throughout India but HC can only issue writs against a person or government within its territorial jurisdiction or outside only if cause of action arises within its jurisdiction.

HC can refuse to issue writs as article 226 confers it with discretionary power but SC has to exercise its power compulsorily.

Hence SC is the protector and defender of fundamental rights.

Types of writs:

Habeas Corpus: Can be issued to public authorities or private individuals to produce a detained person before the court.

Mandamus: Issued by court against public authority [not private individual] to perform a duty [only mandatory not discretionary] which he has failed / refused to perform.

Prohibition: Can be issued by higher court to lower court [or judicial / quasi judicial authority] to stop it from exceeding its jurisdiction [only preventive]. Can’t be issued against non judicial or private individual.

Certiorari: Can be issued by higher courts to lower courts / judicial or quasi-judicial bodies or administrative tribunals. This is to transfer a case from lower court to itself or squash an order of lower court. It’s not only preventive but curative. However it’s not available against legislatures, private individuals or bodies.

Quo warranto: Issued to inquire legality of claims of a person to a public office [permanent office created by statute / constitution only not private posts or temporary posts]. Unlike above writs this can be sought by any individual not just aggrieved person.

Fundamental rights of members of armed forces:

Parliament not states can pass a law to restrict fundamental rights of members of armed forces to ensure proper discharge of duties and maintenance of discipline amongst them. Such a law can’t be challenged in any court on grounds of contravention of any fundamental rights.

Parliament can also exclude court martial’s from writ jurisdiction of SC and HC so far as enforcement of fundamental rights is concerned.

Martial law [Article 34]

Government can declare military rule in any part of India [not whole] under breakdown of law and order. It is different from emergency. Parliament can indemnify any public servant for actions done by him to restore peace and order while martial law is in force. Such a law can’t be challenged in any court on grounds of contravention of any fundamental rights.

It suspends government and ordinary law courts in that area. It affects only fundamental rights [not centre state relations, financial resources etc].

 

Criticism of Fundamental Rights

1- Excessive limitations

2- No social or economic rights [social security, work, employment] this is found in constitution of democratic countries as well as some socialists.

3- Lack of clarity

4- No permanency / Suspension during emergency

5- No consistency philosophy

6- Preventive detention

7- Expensive remedy





Q. Which of the following are envisaged by the Right against Exploitation in the Constitution of India?
1. Prohibition of traffic in human beings and forced labour
2. Abolition of untouchability
3. Protection of the interests of minorities
4. Prohibition of employment of children in factories and mines
Select the correct answer using the code given below:(UPSC CSAT-2017)


  1. 1, 2 and 4 only

  2. 2, 3 and 4 only

  3. 1 and 4 only

  4. 1, 2, 3 and 4


Ans . C


  1. Right to equality and Cultural and educational rights cover points 2 and 3 respectively



Q. Which one of the following statements is correct? (UPSC CSAT-2017)


  1. Rights are claims of the State against the citizens.

  2. Rights are privileges which are incorporated in the Constitution of a State

  3. Rights are claims of the citizens against the State.

  4. Rights are privileges of a few citizens against the many


Ans . C


  1. People can demand from the states these rights.



Q. Right to vote and to be elected in India is a (UPSC CSAT 2017)


  1. Fundamental Right

  2. Natural Right

  3. Constitutional Right

  4. Legal Right


Ans . D


  1. Representation of Peoples Act gives it, it is not included in Fundamental rights.


Quiz

Score more than 80% marks and move ahead else stay back and read again!