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Fundamental Rights Flashcards

To remember all the important articles within Part III of Constitution

1
Q

Fundamental Rights

A

The Fundamental Rights are defined as basic human freedoms where every Indian citizen has the right to enjoy for a proper and harmonious development of personality and life (physical, mental, emotional, spiritual, & overall development). These rights apply universally to all citizens of India, irrespective of their race, place of birth, religion, caste or gender.

It is included in Part III of the Indian Constitution from Art. 12-35. It was inspired from the USA’s “Bill of Rights”.

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2
Q

Difference b/w Fundamental Rights & Ordinary Rights

A

FRs are given and taken back (in case of a national emergency) only by the Constitution, which, when breached, a citizen can appeal in court (SC or HC).

ORs are given and taken back by the will of the law-making body(s), as the provision in the law states. The citizen may or may not appeal in court when rights are breached.

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3
Q

Features of Fundamental Rights

A
  1. Some are given only to the citizen on India, while others are given to all the citizens, including foreigners, and legal persons like companies and corporations
  2. Impose restriction on arbitrary functioning of State.
  3. Constitutionalism is present where FR is present.
  4. Limits the scope of the state’s functioning area.
  5. Citizen can directly appeal in higher court when their FR is breached.
  6. FRs impose negative obligation on the state (Nature of FR).
  7. The democracy of the country will be strong and smooth functioning where FRs are established.
  8. FRs allow citizens and legal persons to file grievances against private entities and individuals in cases of breach.
  9. Ensures political democracy.
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4
Q

Classification of Fundamental Rights

A
  1. Right to Equality (A14-18)
  2. Right to Freedom (A19-22)
  3. Right against Exploitation (A23-24)
  4. Right to Freedom of Religion (A25-28)
  5. Cultural and Educational Rights (A29-30)
  6. Right to Property (A31)
  7. Right to Constitutional Remedies (A32)

*Right to Property (A31) was abolished in the 44th Amendment Act, 1977.

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5
Q

Article 12

A

It defines “State” for the purpose of Part III of the Constitution.

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6
Q

Define State according to Article 12

A

The State includes Parliament and the Union Govt., State Assembly and State Govt., all local authorities (Municipalities, Panchayats, District boards, etc.), Statutory & Non-Statutory Authorities (LIC, ONGC, SAIL, etc.), and private bodies/agencies that work as an instrument of the State.

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7
Q

Article 13

A

It has 3 parts.

A13(1): All laws (pre- & post-constitutional) that are inconsistent with or in derogation of any of the fundamental rights shall be unconstitutional and become “Null & Void”.

A13(2): If State makes laws (in future or present) that breach Part III of the constitution then that particular will be stated unconstitutional.

A13(3): It defines the term “law” in the context of Part III.

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8
Q

Principal in A13 and related cases

A

Doctrine of Eclipse (DoE):
Any law that is inconsistent with fundamental rights is not invalid. It is not totally dead but overshadowed by the fundamental right. The inconsistency (conflict) can be removed by a constitutional amendment.

Case 1: Bhikaji Narayan Case, 1955
It highlighted DoE that if pre-constitutional laws are violating Part III, then they are not totally abolished but kept inactive, except where FR are not applicable and can be reinstated under any future amendment act in Part III if applicable.

Case 2: Deepchand Case, 1959
DoE is applicable for only pre-constitutional laws because post-constitutional laws are made according to Part III. Even if the law violates Part III, it will be designated as null & void from the beginning.

Case 3: Ambika Mills Case
DoE is applicable for both pre- and post-constitutional laws if that particular law is important.

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9
Q

1st Constitutional Amendment Act

A

It was done in the year 1951.
Case: Shankari Prasad Case, 1951
Case reason: The 1st Amendment Act is unconstitutional.
Changes brought: A15(4), A19, Schedule IX
Act was sought against: A13(2) & A13(3)

Overview:
Parliament has 2 powers in the law-making process:
a. Making ordinary law under A365, which is in accordance with A13(3), otherwise stated as unconstitutional.
b. Making law through constitutional amendments under A368, which is not under the premise of A13(3); hence, laws made under A368 are constitutional.

Concluding verdict:
The 1st Constitutional Amendment Act, 1951, was made under A368, hence the act is constitutional.

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10
Q

Cases related to amendment acts

A

Golaknath Case, 1967
Defines A368; under which Parliament does amendments, defines the process of amendment, but it does not defines the belonginess of the amendment power.

25th Amendment Act, 1971
A368 was redefined. both its process and ownership of power (i.e. Parliament)

Kesavananda Case, 1973
Under A368, re-highlighted that Parliament can make amendments without changing the basis structure of the constitution.

*The basis structure was never clearly defined in the constitution.

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11
Q

Article 14

A

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This provision confers rights on all persons, whether citizens or foreigners. Moreover, the word ‘person’ includes legal persons, viz., statutory corporations, companies, registered societies, or any other type of legal person.

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12
Q

Concepts of Article 14

A
  1. Equality before Law: Originating from British constitution
  2. Equal Protection of Law: Originating from American constitution

Exceptions:
> President and Governor (under A361)
> Member of Parliament (under A105)
> MLAs (under A194)
> Foreign rulers, ambassadors, and UNO
> Any person working for news publication from the parliament & assembly.

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13
Q

Equality Before Law

A

(a) The absence of any special privileges in favour of any person.
(b) The equal subjection of all persons to the ordinary law of the land administered by ordinary law courts.
(c) No person (whether rich or poor, high or low, official
or non-official) is above the law.

It is a negative concept.

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14
Q

Equal Protection of Law

A

(a) The equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws.
(b) The similar application of the same laws to all persons who are similarly situated.
(c) The like should be treated alike without any discrimination.

It is a positive concept.

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15
Q

Rule of Law

A

The concept of ‘equality before law’ is an element of the
concept of ‘Rule of Law’ from British constitution.

It has 3 principles (3rd one modified in accordance to Indian constitution):
1) No one shall be punished without committing a crime.
2) Whether the crime has taken place or not will be decided by judiciary.
3) The Constitution is the basis of all laws in the country.

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16
Q

Article 15

A

Prohibition of Discrimination on Certain Grounds.

Defines discrimination as making an adverse distinction with regard to or to distinguish unfavourably from others.
It has 6 provisions in it, A15(1) to A15(6).

Provisions 3 to 6 are the exceptions to the 1st and 2nd provisions.

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17
Q

Article 15(1)

A

The state shall not discriminate between individuals ONLY on the grounds of religion, caste, gender, place of birth, and race.

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18
Q

Article 15(2)

A

The state or a private individual or both shall not forbid any individual from entering a public place on the basis of religion, caste, gender, place of birth, and race.
Public places: gardens, wells, shopping malls, etc.

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19
Q

Article 15(3)

A

The state has been empowered to arrange/provide special care/treatment to women and child for their development and growth.

It is positive discrimination as it is concerned with growth and development.

Ex.: Reservation for Women, Free Education policies for children, etc.

20
Q

Article 15(4)

A

It was added to the 1st Constitutional Amendment Act, 1951.
The state is empowered to make special arrangements for the advancement of the socially & educationally backward class of society (SC/ST).
Ex.: Reservation policy for SC/ST.

21
Q

Article 15(5)

A

It was added to the 93rd Constitutional Amendment Act, 2005.
The state is empowered to make special arrangements for backward classes of society (SC, ST, and OBC) for admission in any educational institutions, both public and private.

22
Q

Article 15(6)

A

It was added to the 103rd Constitutional Amendment Act, 2019.
The state is empowered to make special arrangements for the Economically Weaker Section (EWS) of society for admission in any educational institutions, both public and private.

23
Q

Article 16

A

Equality of Opportunity in Public Employment.

It has a total of 6 provisions, of which the third to sixth provisions are exceptions to the first and second provisions.

24
Q

Article 16(1)

A

Equality of opportunity for all citizens in matters of employment or appointment to any office under the state.

25
Q

Article 16(2)

A

The state cannot discriminate ONLY on the basis of religion, caste, gender, place of birth, race, and decency for public employment.

26
Q

Article 16(3)

A

Only Parliament has the power to apply residency criteria for specific public jobs.

27
Q

Article 16(4)

A

The state can favour socially & educationally backward classes of society and provide special arrangement for public employment. (like a reservation)

27
Q

Article 16(6)

A

The state has the power to make special arrangements for EWS for specific jobs.
Ex.: addition of 10% reservation for EWS in the existing policy.

27
Q

Article 16(5)

A

The state has the power to set religion as a criteria for hiring for specific jobs.

28
Q

Important cases related to Article 16

A

Case 1: Indra Sawhney Case, 1992

Petition: Reservation is not constitutional.
SC verdict:
(i) Reservation are constitutional
(ii) Reservation are limited to a cap of <50%. (exception in special cases).
(iii) Creamy layer inclusion- Ram Nandan Committee (1993)
(iv) No reservation when only 1 post vacancy is present.
(v) Reservation only at entry position > in 77th amendment act, SC/ST gets promotional reservation.

Case 2: Nagraj Case, 2006

Petition: Is reservation policy constitutional?
SC verdict:
Reservation policy is constitutional if all given 5 instructions are fulfilled;
(i) Reservation is <50% (total)
(ii) OBC reservation included creamy layer categorization
(iii) Only for socially & educationally backward classes
(iv) When representation in the org. is less
(v) Administration & operation of the org. doesn’t lessen the efficiency & effectiveness of the org.

29
Q

Article 17

A

Abolition of Untouchability
Demerit: Untouchability is not defined in the constitution.
SC defines it as immoral, impure, and polluted treatment/vision toward any individual. (Sabarimala case)
It empowers citizens against the state and the individual.
Laws:
Untouchability (Offences) Act, 1955
Civil Rights (Protection) Act, 1976

30
Q

Article 18

A

Abolition of Titles
Nobility, ancestral, and hereditary titles like Maharaj, Raja, etc. will not be used in the prefix & suffix of anyone’s name.
Exception: educational and military titles.
The national award’s title can’t be used either.
President permission is required for receiving awards or titles given by any other country to any Indian citizen or foreigner working with the government, directly or indirectly.

31
Q

Article 19(1)

A

Protection of Six rights

32
Q

Article 19(1)(a)

A

Freedom of Speech & Expression
It implies that every citizen has the right to express his views,
opinions, beliefs and convictions freely by word of mouth, writing,
printing, picturing or in any other manner.
Restriction exercised on the ground of sovereignty and
integrity of India, security of the state, friendly relations with foreign
states, public order, decency or morality, contempt of court,
defamation, and incitement to an offence.

33
Q

Article 19(1)(b)

A

Freedom of Assembly
Freedom of Assembly
Every citizen has the right to assemble peaceably and without arms. It
includes the right to hold public meetings, demonstrations and take
out processions. This freedom can be exercised only on public land.
Same restriction as A19(1)(a).
Restriction laws: Section 144 of the Criminal Procedure Code & Section 141 of the IPC.

34
Q

Article 19(1)(c)

A

Freedom of Association
All citizens have the right to form associations, unions, or cooperative societies. It includes the right to form political parties, companies, partnership firms, societies, clubs, organizations, trade unions, or any other body of persons.

35
Q

Article19(1)(d)

A

Freedom of Movement
It entitles every citizen to move freely throughout the territory of the country. He can move freely from one state to another or from one place to another within a state. This underlines the idea that India is one unit as far as the citizens are concerned. Thus, the purpose is to promote national feeling and not parochialism.

The grounds of imposing reasonable restrictions on this freedom are two, namely, the interests of general public and the protection of interests of any scheduled tribe.

36
Q

Article 19(1)(e)

A

Freedom of Residence
Every citizen has the right to reside and settle in any part of the
territory of the country.
This right has two parts:
(a) the right to reside in any part of the country, which means to stay at any place temporarily, and
(b) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently.

37
Q

Article 19(1)(g)

A

Freedom of Profession/Vocation
All citizens are given the right to practice any profession or to carry on any occupation, trade, or business. This right is very wide, as it covers all the means of earning one’s livelihood.
Restriction on illegal, immoral, and dangerous occupations.

38
Q

Article 20

A

Protection in Respect of Conviction for Offenses
It grants protection against arbitrary and excessive punishment to an accused person, whether a citizen, a foreigner, or a legal person like a company or a corporation. It contains three provisions in that direction:
(i) No ex-post-facto
(ii) No double jeopardy
(iii) No self-incrimination

39
Q

Article 21

A

No person shall be deprived of his life or personal liberty except according to procedures established by law. This right is available to both citizens and non-citizens.
It is the most important article, as all FRs revolve around Article 21. Also, it is the most interpreted article by SC and the most evolved article of the Constitution.

40
Q

Article 21 - Important cases

A

Case 1: Gopalan Case, 1950
“Procedure Established by Law”
It has 3 checkpoints:
(i) Does the law empower the concerned authority to take action (which is hindering the right to liberty and life)?
(ii) Is the same law made by competent authority or not?
(iii) Is the same law made through the prescribed procedure by the constitution?

Demerit:
It refers to only executive bodies protecting legislative bodies; it is also inspired by the British unwritten constitution, where parliament is supreme, completely opposite to the Indian constitution.

Case 2: Menaka Case, 1978
“Due Process of Law”
It is inspired by the USA’s constitution, and covers the demerit of PEBL.
(i) Does the law allow the authority to take any particular action?
(ii) Is the law made by the competent authority or not?
(iii) Is the law made through the prescribed method by the constitution?
(iv) What is the intention or motive of legislative authority behind making this law?

41
Q

Principle of Natural Justice

A

1) No person shall be punished unheard in the court.
2) No one can be a judge of his own case.
3) The authority giving the decision on the case should be ‘bonafide’ or neutral.

42
Q

Golden Triangle of the Fundamental Rights

A

Articles 14, 19, and 21 form a triangular relation structure. It interprets that each of the three articles are dependent on each other, and cannot exists solely.

43
Q

Article 21A

A

Right to Education
added in 86th constitutional amendment act, 2002

Children between the age of 6 and 14 will be given free and compulsory education. To implement this article, different schemes were drafted and implemented:
(i) Education to all program
(ii) Cycle distribution scheme
(iii) Mid-day Meal scheme

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