Fundamental Rights

Question 1

Genesis of fundamental rights

Answer 1

On 15th June 1215,
King John of England brings the concept of fundamental rights (Magna Carta).
The reason being, to bring peace between the king and a group of Rebel barons
It resulted in the promise protection of Church rights, protection for barons from illegal imprisonment, access to swift justice, limitations on feudal payment to crown, commitment should not be broken between kings or group of Rebel barons.

Dr BR Ambedkar said, that the fundamental rights are the most discussed part of the constituent assembly
Hence, It was the most time taking part

The reasons to introduce fundamental rights were:
To maintain the framework for government within which government has to work. It can’t go beyond those powers, to avoid dictatorship.

Question 2

Fundamental rights under constitution

Answer 2

Part 3: known as the Magna Carta of India

Magna Carta is the charter of rights

Article 12-35 deals with the fundamental rights

It was derived from the American constitution (bill of rights) but the constitution of India is way more elaborate on it

Fundamental rights are guaranteed to all persons without discrimination to maintain equality, dignity, larger public interest and the unity of nation

It seeks to prevent an authoritarian state, or a despotic rule in the country.

It aims to protect the liberties and freedom of the people against invasion of state

Its goals are:
Establish a government of law and not of men
All rounded development of material, intellectual, moral and spiritual development of individual
Hence, it is the most comprehensive part of the Indian constitution

Question 3

Articles of fundamental rights

Answer 3

Right to equality (art 14-18)
Right to freedom (art 19-22)
Right against exploitation (art 23-24)
Right to freedom of religion (art 25-28)
Cultural and educational rights (art 29-30)
Right to property (art 31)
Deleted by the 44th amendment Act of 1976
Made the legal right to government (art 300A)
Reason:
Nobody will likely give their property to government. People will go to supreme Court to demand right to property. Hence, no infrastructure development.

Right to constitutional remedies (art 32)
Most important
Provides remedies if any fundamental right is breached

42nd amendment:
1976
During emergency = mini constitution

44th amendment:
1978
To clear mistakes in the 42nd amendment

Question 4

Features of fundamental rights

Answer 4

Some fundamental rights are available only to citizens (art 15, 16, 19, 29, 30 are only for Indian citizens)

Not absolute but qualified (state can impose reasonable restrictions on hurting the fundamental rights of another citizen) and strike balance between individual and society and between individual liberty and social control

Available against arbitrary action of the state with few exceptions like (those against State’s action against action of private individuals)

Some are positive in nature (conferring certain privileges on people), while some are negative (place limitations on the authority of the state)

Justiciable (people can move to court for their enforcement when violated)

Defended and guaranteed by the supreme court

Not sacrosanct, not permanent, Parliament can curtail, reduce, repeal and revoke it through constitutional amendment Act passed in lok sabha and rajya sabha and not by an ordinary act. However that requires simple majority and without affecting the basic structure of the constitution

Can be suspended except in times of National emergency (art 20, 21). Rights under article 19 are only suspended during external emergency and not internal emergency

Scope of operation is limited

Application to members of the armed forces, paramilitary forces, police, intelligence agencies, analogous forces restricts the power given to the citizens according to article 33.

Martial law can be imposed under abnormal circumstances from the imposition of the national emergency and the power of the citizens can be restricted (article 34)

Most of them are directly enforceable however some can only be enforced on the basis of laws made for giving affect to them.

Made only by the Parliament and not state legislature.

Uniformity throughout countries maintained

Question 5

Definition of the state (according to article 12)

Answer 5

State includes the following:
The Parliament of India (executive and legislative organs of the centre)
Government of legislature of States (executive + legislative organs of state government)
Local authorities (municipalities, panchayats, district boards, improvement trust)
Other authorities (statutory or non statutory authorities like, LIC, ONGC, SAIL)

All the force can be challenged in courts for violating fundamental rights

According to supreme Court, even a private body or agency working as an instrument of state falls within the meaning of state under article 12

Question 6

Laws inconsistent with the fundamental rights

Answer 6

Laws that are inconsistent wave or in derogation of any of the fundamental rights shall be void

According to article 32 (for Supreme court) and article 226 (for high court)

They can declare a law unconstitutional and invalid on the grounds of contravention of any of the fundamental rights

The term law in article 13 includes permanent laws enacted by the parliament or state legislature

Temporary laws like ordinances issued by the president or state governors

Statutory instruments in the nature of delegation legislation or the executive legislation

Like order by law, rule, regulation and notification

Non legislative sources of law are custom or usage having force of law like the triple talaq

Article 13 is a constitutional amendment and not a law and so it can’t be challenged

But the Keshavananda Bharati (1973) states that constitutional amendment can be challenged on the grounds that it violates the fundamental rights which forms the basic structure of the constitution and hence declared as void

Question 7

Right to equality

Answer 7

State shall not deny any person the equality before law or equal protection of laws within the territory of India

By person it means legal persons, statutory corporations, companies, registered societies or foreigners within the territory of India

Protection of law as a concept is originated from America. It is a positive concept given by Aristotle. It is the equality to treatment under equal circumstances including privileges conferred and liabilities imposed by laws.

Similar application of same laws to all people who are similarly situated

Same treatment without any discrimination

Equality before law as a concept originated from Britain. It is the rule of law by British jurist, AV Dicey.

He gave three elements:
1. Absence of arbitrary power (applicable in India, no man can be punished for the breach of law)
2. Equality before law (applicable in India, equal subjugation of all citizens to ordinary law of land administered by ordinary law courts, it includes the rich, the poor, the officials and non-officials)
3. The primacy of rights of individuals (not applicable in India, constitution is result of rights of individuals as defined & enforced by courts of law rather than the constitution being source of individual rights (UK)

In India the constitution is a source of individual rights. The supreme court holds that the rule of law as embodied in the article 14 is a basic feature of the constitution and so it cannot be destroyed.

Exceptions to equality:
The president and governor enjoy immunities under the article 361
They are not answerable to any court for the exercises and performance of powers and duties of his office
No criminal proceedings shall be instituted or continued in any court during his term of office
No process for imprisonment shall be should from any court during his term of office
No civil proceeding shall be instituted during his term of office in any Court until expiration of 2 months after notice has been delivered to him

Acc to Article 361A, no person shall be liable to any civil or criminal proceedings and any court on the proof or evidence of any publication in newspaper, radio, television or a substantially true report of any proceedings on both House of parliament or house of legislature

Article 105, no member of parliament 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 194, same as article 105 but in relation to state legislature said or done in parliament

Article 31C is an exception to article 14 as it provides that laws made by the state for implementing the DPSPs in clause B & C of article 39 can’t be challenge on the grounds that they are violative of article 14

The supreme court held that if article 31C comes in article 14 goes out

Immunity from criminal and civil proceedings, foreign sovereigns (rulers), ambassadors, diplomats etc

Question 8

Article 15

Answer 8

The state shall not discriminate against any citizen on the grams of religion, race, caste, sex or place of birth

The crucial words in this provision are discrimination, disability, liability, restriction or condition on the basis of religion, race, caste, sex or place of birth

Access to shops, restaurants, hotels, places of entertainment

Use of Wells, tanks, bathing ghats, roads place of public resort maintained wholly or partly by State funds or dedicated to the use of the general public

This provision prohibits discrimination both from the state and private individuals

While former provision prohibits discrimination only by the state, state is permitted to make special provisions for women and children in terms of reservation of seas for women in local bodies and provision of free education for children

Any socially and educational backward classes of citizens or for SCs and STs, reservation of seats or free concession in public educational institutions, admission to educational institutions including private educational institutions whether aided or unaided by (according to 93rd constitutional amendment act of 2005), centre enacted the Central educational institutions (reservation in admission) act of 2006, provided quota of 27% for candidates belonging to OBC category in all higher educational institutions like IITs and IIMs

Advanced sections among the OBC are excluded; this is called the creamy layer

Question 9

Creamy layer

Answer 9

Children of following different categories belong to creamy layer and will not get quota benefit:

Persons holding constitutional posts like president, vice president, judges of supreme court and high court, chairman and members of UPSC, SPSC, CEC, CAG

Group A/ class 1 officers of group B and class 2 officers of all India, Central and state services, employees holding equivalent posts in PSUs, banks, insurance organisations, universities, private employment

Persons who are in the rank of Colonel in army, Navy, Air force or paramilitary

Professionals like doctors, lawyers, engineers, artists, authors, consultant, etc

Percent engaged in trade, business and industry

People holding agriculture land above a certain limit or buildings in urban areas

Persons having gross national income of more than 8 lacs or possessing wealth above 8 lacs

Question 10

Equality of opportunity (article 16)

Answer 10

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 the grounds of religion, race, caste, sex, descent, place of birth of residence.

Question 11

Article 17, abolition of untouchability

Answer 11

Abolition of untouchability forbids its practice in any form

Enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law

Untouchability act of 1955 was amended and renamed as the protection of civil rights at of 1955 to enlarge its scope and make panel provisions more stringent

Offences committed on the grounds of untouchability are punishable by imprisonment of up to 6 months and fine up to 500 or both

Persons convicted of untouchability will be disqualified in election of parliament or election of state legislature

Question 12

(Article 18) Abolition of Titles

Answer 12

In abolish the titles and made 4 provisions in this regard:
It prohibits state from conferring any title on anybody (whether citizen of India or a foreigner), except military distinction or in academic distinction
It prohibits a citizen of India from accepting 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 president
No citizen or foreigner holding any office of profit or trust under state is to accept any present, emolument or office from or under any foreign state without the consent of the president

Question 13

Right to freedom (Article 19)

Answer 13

Guarantees citizens 6 rights:
Freedom of speech and expression, assembly, association, movement, residence and profession

However state can imposed reasonable restrictions on the above 6 rights on the grounds mentioned in the article 19 itself

Question 14

(Article 20) Protection In Respect Of Conviction For Offences

Answer 14

Protection against arbitrary and excessive punishment to an accused whether citizen or foreigner or legal person like a company or a corporation

It contains three provisions
No person shall be conducted of any offence except for violation of law in force at the time of the commission of the act, nor subjected to penalty greater than that prescribed by law in force at the time of the commission of the act

No double jeopardy (no person shall be persecuted for the same often twice)

No self incrimination (no person accused shall be compelled be a witness against themselves). For oral or documentary evidence only.

The above three limitations are imposed on criminal laws only and not civil or tax laws (imposed retrospectively)

Question 15

(Article 21) Protection Of Life And Liberty

Answer 15

Protection under article 21 includes
Right to live with human dignity, decent environment, livelihood, privacy, shelter, Health, free education up to 14 years, free legal aid, against solitary confinement, speedy trial, against hand cuffing, against inhumane treatment, against delayed execution, travelling abroad, against bonded labour, against custodial harassment, emergency medical aid, timely medical treatment in government hospital, to not be driven out of a state, fair trial, prisoner to have necessities of life, for women to be treated with decency and dignity, against public hanging, hearing, information and reputation.

Article 21A- state shall provide free and compulsory education to all children of ages 6 to 14. Makes elementary education of fundamental right.

86th constitution amendment act of 2002: education for all

Fundamental duty under article 51A- it shall be the duty of every citizen of India to provide opportunity for education to his child or ward between the ages of 6 to 14

In 2009, the parliament enacted the right to children to free and compulsory education (RTE) act to provide that every child has the right to be provided full time elementary education of satisfactory and equitable quality in a formal School.

Question 16

(Article 22) Protection Against Arrest

Answer 16

Protection against arrest and detention

Detention is of two types: punitive and preventive

Punitive detention: punishing a person for an offence committed by him after trial in court

Preventive detention: retention of person without trial and conviction by court. It is a precautionary measure based on suspicion

Article 22 has two parts:
1. Deals with the cases of ordinary law. Rights of a person who is detained under ordinary law: Right to be informed of the grounds of arrest, to consult and be defended by a legal practitioner, to be produced before a magistrate within 24 hours, to be released after 24 hours unless magistrate or authorizes further detention. It does not cover orders of a court, civil arrest, arrest on failure to pay income tax, deportation of an alien

2. Cases of preventive detention law. Protection of people who are arrested or detained under a preventive detention law (both citizens and aliens), includes: detention cannot exceed 3 months unless an advisory body reports sufficient cause for extended detention and the grounds of detention should be communication to a detainee. The detainee should be afforded an opportunity to make a representation against the detention order

Question 17

(Article 23) Right Against Exploitation

Answer 17

Prohibition of traffic in human being and force labour and other forms of force labour to citizens and non citizens

It protects individuals not only against the state but also against private persons

However it permits the state to impose compulsory service for public purposes like in military or social service without imposing any discrimination on the grounds of religion, race, caste or class

Question 18

(Article 24) Prohibition Of Employment Of Children In Factories

Answer 18

Below the age of 14, a person is not allow to work in a factory, mine, or hazardous activities like construction or railways. Birthday are not prohibited from working in harmless or innocent works like in films and state shows

In 1966 the supreme court directed the establishment of child labour rehabilitation welfare fund in which the offending employer would deposit a fine of 20000 rupees for each child employed by him

Establishment of the National commission and state commission for protection of child rights and children’s courts for providing speedy trial of offences against children or a violation of child rights in 2006

Question 19

(Article 25) Right To Freedom Of Religion

Answer 19

All persons are equally entitled to the freedom of conscience and the right to freely profess, practice and propagate religion

Question 20

(Article 26) Right To manage religious affairs

Answer 20

It provides the following rights:
Right to established and maintain institutions for religious and charitable purposes
Right to manage their own affairs in matters of religion
Right to own an acquire movable and immovable property
Right to administer such property in accordance with law

According to the supreme court, the religious denomination must satisfied three conditions:
It should be a collection of individuals who have a system of beliefs, which they regard conductive to their spiritual well being
It should have a common organisation and designated by a distinctive name

Supreme court held that Ramkrishna mission and Ananda marga are religious denominations within Hindu religion but Aurobindo society is not

Question 21

(Article 27) Freedom From Taxation For Promotion Of Religion

Answer 21

It state that no person shall be compelled to pay taxes for the promotion or maintenance of any particular religion

State should not spend public money collected by the way of tax for the promotion or maintenance of any particular religion

This prohibit the state from favouring, patronising or supporting one religion over the other

Taxes can be used for the promotion or maintenance of all religions

Prohibits only Levi of tax, not a fee because the purpose of fee is to control secular administration of religious institutions and not to promote or maintain it

Fee can be levied on pilgrims to provide them some special service or safety measures

Question 22

Article 28 (freedom from attending religious instruction)

Answer 22

Freedom from attending religious instruction

It state that no religious instruction shall be provided in any education institution wholly maintained out of state funds

It shall not applied to an educational institution administered by State

But established under any endowment or trust requiring the imparting of religious instruction in such institution

Question 23

Cultural and educational rights

Answer 23

To declare as minority there are three conditions:

Minority area should not be dominated in any area within the country

It should be a citizen of India and not an outsider

He must have to accept the status of minority

Article 29:

Question 24

Article 32 (right to remedies for enforcement of fundamental rights of an aggrieved citizen)

Answer 24

This article makes the fundamental rights real

Ambedkar called article 32 as the most important article of the constitution and without this the constitution would be null and void. It is the very soul of the constitution and the very heart of it

The supreme court ruled that article 32 is a basic feature of the constitution and it cannot be taken away even by the amendment of constitution

It contains four provisions:
The right to move supreme court by appropriate proceedings of enforcement
The supreme court shall have the power to issue directions or orders or writs for the enforcement of any fundamental right
Writs issued maybe: habeas Corpus, mandamus, prohibition, certiorari or quo warranto

Parliament can empower any other court to issue directions, orders and writs of all kinds

Any other court here does not include high courts because article 226 has already conferred these powers on to the high courts

The right to move supreme court shall not be suspended except as otherwise provided for by the constitution

The constitution provides that the president can suspend the right to move any court for enforcement of fundamental right during national emergency (article 359)

Question 25

Writs

Answer 25

SC (article 32), HC (article 226) can issue habeas Corpus, mandamus, prohibition, certiorari, quo warranto

Parliament under article 32 can empower any other court to issue these writs

Before 1950 only High court of Calcutta Bombay and Madras had the power to issue writs

Article 226 now empowers HC to issue writs

They are borrowed from English law called prerogative writs (Vishesh Adhikar)
They are issued in exercise of prerogative of the king who was and still described as the fountain of justice. Later, HC started issuing these writs as extraordinary remedies to uphold the rights and liberties of British people.

The writs of supreme court differs from High court in three respects:
Supreme court can issue writs only for enforcing fundamental rights.
While High court can do so for any other purpose apart from fundamental rights.
Supreme court can issue writs against the person of government territory of India, while High court can issue writs against the government or authority located within its territory and jurisdiction only (state).

The different kinds of writs other article 32 and 226 are:

Habeas Corpus
To have the body of (Latin)
It is an order issued by the court to a person who has detained another person to produce the body of the detained person before it
The court then examine cause and legality of detention
It would set the detained person free if the detention is found to be illegal
This writ is the bulwork of the individual against arbitrary detention
This can be issued against public authorities and private individuals
It is not issued where the tension is lawful, proceeding if for contempt of court or legislature, detention is by a competent court, detention is outside the jurisdiction of court

Mandamus
We command
It’s a command issued by the court to public officials asking him to perform his official duties that he has failed or refused to perform
Can’t be issued against a private individual or body, enforce departmental instruction dad does not process statutory force, when duty is discretionary and not mandatory, enforce the contractual obligation, against the President of India or state governors, against the chief justice of High court acting in judicial capacity

Prohibition
To forbid
Issued by higher court to lower court or tribunal
To prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that does not possess
Unlike mandamus that directs activity prohibition directs inactivity
It can be used only against judicial and quasi judicial authorities
Not available against administrative authorities, legislative bodies and private individuals or bodies

Certiorari
To be certified or informed
High court or lower court or tribunal either to transfer a case pending with latter to itself or to squash the order of the latter in a case
Issue on the grounds of excess jurisdiction or lack of jurisdiction or error of law
Unlike prohibition, it is only preventive (also curative)
Till 1990 it would only be issued against judicial authorities and quasi judicial authorities but not against administrative authorities but after 1991 the supreme court rule that certiorari can be issued even against administrative authorities affecting the rights of individuals
Like prohibition it is not available against legislative bodies, private individuals and bodies

Quo warranto
By what authority or warrant
Issued by court to enquire into the legality of claim of person to public office
Prevents illegal usurpation of public office by a person
Writs can be issued only in case of substantive public office of a permanent character created by statute or by constitution
Unlike the others, this can be sought by any interested person and not necessarily by an aggrieved person (pidit)

Question 26

Martial laws, Armed Forces And Fundamental Rights

Answer 26

Empowers parliament to restrict the fundamental rights of members of armed forces, paramilitary, police, intelligence agencies, and analogous forces.

Objective: to properly discharge the duties and maintenance of discipline among them

Power to make laws under article 33 is conferred by the parliament and not the state legislatures

Parliament can’t be challenged in any court

Parliament has enacted: army act of 1950, Navy act of 1950, Air force act of 1950, police forces (restriction of rights) act of 1966, border security force act, etc.

These imposed restrictions on their fundamental rights

Article 34:

Freedom of speech, right to form association, right to be members of trade unions or political associations, right to communicate with press, right to attend public meetings or demonstration, etc

The expression “member of armed forces” covers employees of armed forces like barbers, carpenters, mechanics, cooks, chowkidars, boot makers, tailors who are non-combatants

The parliamentary law enacted under article 33 can also exclude court martials of tribunals established under military law from the writ jurisdiction of High court and supreme court (as far as the enforcement of fundamental right is considered)

Restrictions on the fundamental rights while martial law is in force in any area within the territory of India

Parliament can validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under the martial law in such area

Act of indemnity made by parliament cannot be challenge in any court on the ground of contravention of any fundamental rights

Concept of martial law is borrowed from the English common law

Expression of martial law has not the been defined anywhere in the constitution

It literally means military rule and refers to a situation where civil administration is run by military authorities according to their own rules and regulations framed outside the ordinary law

Article 34 or the martial law can be declared in any area within the territory of India, imposed under extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law

Justification is to repel force by force for maintaining a restoring order in society

During operation of martial law, military authorities are vested with abnormal powers to take all necessary steps

The imposed restrictions and regulations on the right of civilians and can punish civilians and even condemn them to death

The supreme court held that declaration of martial law is not Ipso Facto (very fact), resulting in the suspension of habeas Corpus

Article 35

Power to make laws, to give effect to certain specified fundamental rights shall vest only in the parliament and not in state legislatures

Provisions ensure uniformity throughout India with regard to the nature of those fundamental rights and punishment for their violation

Question 27

Criticism of fundamental rights

Answer 27

Excessive limitations (curtailment of freedom)

No social and economic rights

No clarity on public order, minorities, reasonable restriction or public interest

No permanency (they are not sacrosanct or immutable as the parliament can curtail or abolish them according to the doctrine of basic structure)

Suspension during emergency (the suspension of the enforcement during the operation of National emergency except articles 20 & 21; provision cuts at roots the democratic system in country by placing the right of millions of innocent people in continuous jeopardy)

Expensive remedy (judicial process is to expensive and it hinders the common man from getting his rights enforced via courts)

Preventive detention (the critics assert that the provision of preventive detention, article 22, take away the spirit and substance of the chapter on fundamental rights; it confers arbitrary powers on state and negates individual Liberty; it also justifies criticism that the constitution of India deals with the right of state against the individual than the rights of individual against the states)

No consistent philosophy (according to some critics, the chapter on fundamental rights is not a product of any philosophical principle).