Fundamental Rights

—  Fundamental Rights

• —  Magna Carta of India
• —  Political and Civil Rights meant for all the citizens
• —  Enshrined in Part III of The Constitution from Articles 12 to 35
• —  Meant for promoting ideal of Political Democracy.
• —  Justiciable in nature
• —  Uphold the equality of all the individuals, the dignity of the individual, the larger public interest and unity of the nation.

Seven Fundamental Rights                               

1. Right to equality (Art. 14-18)
2. Right to freedom (Art. 19-22)
3. Right against exploitation (Art. 23-24)
4. Right to Freedom of Religion (Art. 25-28)
5. Cultural and Educational rights (Art. 29-30)
6. Right to Property  (Art. 31)
7. Right to Constitutional remedies (Art. 32)

—  Right to Equality

Article 14: Equality before Law:

   “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 the law:

—  is of British origin

—  negative concept

1. absence of any special privileges in favour of the individual
2. equal subjection of all to the ordinary law of the land
3. no person is above the law

The equal protection of the laws

—  American in origin

—  Positive concept

1. The equality of treatment under equal circumstances
2. The similar application of the same laws to all persons similarly situated
3. Like should be treated alike without discrimination

Article 15: Prohibition of Discrimination on Certain Grounds

  “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

—  No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) Access to shops, public restaurants, hotels and places of public entertainment; or

(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

—  Nothing in this article shall prevent the State from

—  making any special provision for women and children.

—  making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

—  relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State

 Article 16: Equality of opportunity in matters of public employment:

“(1) There shall be 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, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”

Exceptions:

—  Parliament prescribes residence as a condition for certain employment or appointment in a state or union territory local or other authority.

—  The State can provide for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Article 17: Abolition of Untouchabilty

 “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.”

Article 18: Abolition of Titles

(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

—  Right to Freedom

Article 19:  Protection of certain rights regarding freedom of speech etc.

(1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory

     of India; [and]

(g) to practice any profession, or to carry on any occupation, trade or business.

Article 20: Protection in respect of conviction for offences:

“Grants protection against arbitrary and excessive punishment to an accused person whether citizen or foreigner.”

A) No ex-facto law:

B) No double jeopardy:

C) No self-incrimination:

 Article 21: Protection of Life and Personal Liberty

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Ø   Assures personal liberty of citizens against the arbitrary actions on the part of the law enforcing authorities.    

Article 21A: Right to Education

 “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may, by law, determine.”

(added by 86^th constitutional amendment act, 2002. (w.e.f. 1-4-2010)

   Article 22: Protection against arrest and detention in certain cases

—  Grants protection to person who are arrested or detained. Detention is of two types- punitive  and preventive.

—  Punitive detention: to punish a person for an offence committed by him after trial and conviction in courts.

—  Preventive detention: means detention of a person without trial and conviction by a court- to prevent him from committing an offence in the near future.

The first part of Art 22 deals with cases of ordinary law:

—  Right to be informed of the grounds of arrest.

—  Right to consult and be defended by a legal practitioner

—  Right to be produced before a magistrate within 24 hours, excluding the journey time.

—  Right to be released after 24 hours unless the magistrate authorizes further detention.

Second part of Article 22 deals with the cases of preventive detention:      

—  The detention of a person cannot exceeds three months….

—  The grounds of detention should be communicated to the detenu….

—  The detenu should be afforded an opportunity to make a representation against the detention order.

—  Rights Against Exploitation

Article 23: Prohibition of Traffic in Human Beings and Forced Labour.

 1) “Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. ”

—  Traffic in human beings:

 1. Selling and buying of men, women and children like goods

 2. Immoral traffic in women and children , including prostitution

 3. Devadasi and

 4. Slavery

-  Immoral Traffic (Prevention) Act, 1956

—  Begar: means compulsory work without remuneration

—  Other similar forms of forced labour: like bonded labour.

  Forced labour means compelling person to work against his will.

• Bonded Labour System Act, 1976
• The Minimum Wages Act, 1948
• Equal Remuneration Act, 1976
• Contract Labour Act, 1970

•      This right is available to both citizens and non-citizens

—  Protects individuals not only against the state but also against private persons

—  Exceptions:

  2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

—  Article 24: Prohibition of employment of children in factories, etc.

“No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”

q  The Child Labour (Prohibition and Protection) Act, 1986

—  In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops, factories, tea-shops and so on.

—  Employing children below 14 years of age would be liable for prosecution and penal action.

—  Right to Freedom of Religion

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

  “(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”

            a) Freedom of conscience:

            Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.

            b) Right to profess:

            Declaration of one’s religious beliefs and faith openly and freely

            c) Right to practice:

            Performance of religious worship, rituals, ceremonies and exhibition of beliefs and  ideas

            d) Right to propagate:

            Transmission or dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion.

—  (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a)regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

—  Two explanations:

—  Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

—  Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

—  Article 26: Freedom to manage religious affairs:

“Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law

 Article 27: Freedom as to payment of taxes for promotion of any particular religion.

            “No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.”

—  Article 28: Freedom as to attendance at Religious instruction or religious worship in certain educational institutions:

            “No religious instruction shall be provided in any educational institution wholly maintained out of State funds”

Cultural and Educational Rights

—  Article 29: Protection of interests of minorities:

            “(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”

            “(2) 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, language or any of them.”

Ø  The first provision protects the right of group, while

Ø  Second provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs.

Ø  Art. 29 grants protection to both religious and linguistic minorities.

—  Article 30: Right of minorities to Establish and Administer Educational Institutions:

            “(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

—  (1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.]- added by 44^th constitutional amendment, 1978

            “(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

Right to Constitutional Remedies

• A mere declaration of fundamental rights in the constitution is meaningless, useless and worthless without providing an effective machinery for their enforcement, if and when they are violated.
• Very soul and heart of the constitution.
• The most important article of the constitution without this article constitution will be nullity- Dr.Ambedkar

 Article 32: Remedies for enforcement of rights conferred by this Part.

            “(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”

            (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

            (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

            (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

q  Supreme Court has been constituted as the defender and guarantor of the fundamental rights of the citizens.

—  Habeas Corpus:

—  Latin word,

—  literal meaning- ‘to have the body of’

—  It is an order issued by the court to a person who has detained another person, to produce the body of the later before it.

—  It would set the detained person free, if the detention is found to be illegal

—  This writ can be issued against both public authorities as well as private individuals.

—  Is bulwark of individual liberty against arbitrary detention.

—  Mandamus:

—  Literally means ‘we command’

—  It is command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.

—  It can be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.

—  Prohibition:

—  Literally means ‘to forbid’.

—  It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not posses.

—  Unlike mandamus that directs activity, the prohibition directs inactivity.

—  Certiorari:

—  Literally means ‘to be certified’ or ‘to be informed’

—  It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case

—  Issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.

—  Preventive as well curative.

—  Quo-warranto:

—  Literally means ‘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.

—  It prevents illegal usurpation public office by a person.