FUNDAMENTAL RIGHTS

Question 1

Provided under _____ of the Constitution (Article12-35).

Answer 1

Part-III

Question 2

Described as _____ of India.

• Cannot be violated or interfered with/by any law, order, Act.
• Limits the power of the Government.
• Enforceable against ____ and not against private individuals

Answer 2

Magna Carta ; State

Question 3

They are not absolute, but subject to reasonable restrictions for the S____, H_____, P____, G_____ and M_____ of the community.
- Strikes a balance between individual liberty and social control.
- During proclamation of Emergency Right to Freedom guaranteed under _____ gets suspended and cannot be enforced in the court of law

Answer 3

safety, health, peace, general order and morals

Article 19

Question 4

Even during Emergency only Article ___ and ___ can been forced in the court of law.
- Principle of waiver not applicable on Fundamental Rights.

Answer 4

20 and 21

Question 5

Source of Fundamental Rights:
IU

Answer 5

• International Covenant of Civil &Political Rights (ICCPR)
• a part of Universal Declaration of Human Rights (UDHR).

Question 6

Fundamental Rights.
1. Right to Equality;
2. Right to Freedom;
3. Right Against Exploitation;
4. Right to Freedom of Religion;
5. Cultural and Educational Rights
6. Right to Constitutional Remedies.

Answer 6

1. (Article 14-18)
2. (Article 19-22)
3. (Article 23-24)
4. (Article 25-28)
5. (Article 29-30)
6. (Article 32-35)

Question 7

Right to Property under Article 19(1)(g) and Right to Compulsory Acquisition of Property abolished by _____ to the Constitution, 1978. Now they are not a Fundamental Right but a Legal Right

Answer 7

44th Amendment

Question 8

If certain portion of law can be separated from an entire provision and is inconsistent with the Fundamental Rights, only the portion inconsistent with Fundamental Rights would be void, not the entire provision

Answer 8

Doctrine of Severability

Question 9

• Law which violates the Fundamental Rights does not become void ab initio but is overshadowed by the Fundamental Rights. Such law becomes inoperative and not dead.
• ______ is contained in Article 13(1) of the Indian Constitution. The doctrine does not apply to post-constitutional laws. All laws inconsistent with the Fundamental Rights are void after the commencement of the Constitution, but are fully applicable for the period prior to enforcement of the Constitution. Such laws are not void ab initio. There is no retrospective effect

Answer 9

Doctrine of eclipse

Question 10

• It says that laws made by a State Legislature are not applicable outside the state, except when there is a sufficient nexus between the state and the object.
• Article 245(2) provides that no law made by the Parliament would be invalid on the ground that it would have extra-territorial operation i.e. takes effect outside the territory of India.

Answer 10

Doctrine of Territorial Nexus

Question 11

• It is also known as “Fraud on the Constitution”.
• When a Legislature does not possess the power to make law upon a particular subject but indirectly makes it by indirect means.
• This Doctrine traces its origin to a Latin Maxim which, in this context, implies: “Whatever legislature cannot do directly, it cannot do indirectly”.
• Article 246 which has demarcated the Legislative Competence of the Parliament and the State Legislative Assemblies by outlining the different subjects under Union list, State list and Concurrent list works on the principles of this doctrine

Answer 11

Doctrine of Colourable Legislation

Question 12

In Kesavananda Bharati case 1973 this doctrine was developed.
- It held that the “basic structure of the Indian Constitution could not be abrogated even by a constitutional amendment”.
- The judgement listed some basic structures of the constitution as:
SUDFSSI [7]

Answer 12

Doctrine of Basic Structure

^ Supremacy of the Constitution
^ Unity and sovereignty of India
^ Democratic and republican form of government
^ Federal character of the Constitution
^ Secular character of the Constitution
^ Separation of power
^ Individual freedom

Question 13

• This Doctrine is usually applied where the question arises of determining whether a particular law relates to a particular subject (mentioned in Seventh Schedule), the court looks at the substance of the matter.
• This doctrine is applied in cases related to the competency of the legislature (Article 246), and also applied in cases related to repugnancy in laws made by Parliament and laws made by the State Legislatures (Article 254).

Answer 13

Doctrine of Pith and Substance

“Pith” means ‘true nature’ and Substance means ‘the most important or essential part of something’.

Question 14

It has developed as an addition to the Doctrine of Pith and Substance.
- This doctrine is invoked when there is a need to aid the principal legislation in question.
- The Doctrine of Pith and Substance deals only with subjects but the Doctrine of ____ deals with the power to legislate on such subjects and the matters connected thereto.

Answer 14

Doctrine of Incidental & Ancillary Powers

Question 15

ARTICLE 14

Answer 15

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.”-

Embodies the idea of equality expressed in the Preamble. - It is a general rule, the specific aspects of it is enshrined under Articles 15, 16 and 17.

• “equality before law” is a negative concept which means every man is equal in the eyes of law. -“equal protection of law” is a positive concept providing equal treatment under equal circumstances.
• “any person” also includes artificial persons, eg: Company and extends to all persons even though he is not the citizen of India.- Permits reasonable classification founded on an intelligible differentia but prohibits class legislation.

Question 16

ARTICLE 15

Answer 16

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-

Question 17

ARTICLE 15 Clause(1)

Answer 17

“Clause (1) -The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

• “discrimination” means to distinguish unfavorably from others.
• Discrimination on the basis of religion, race, caste, sex, place of birth or any of them is prohibited.
• Discrimination on any other basis such as residence is Constitutionally valid.

Question 18

ARTICLE 15 Clause (2)

Answer 18

“Clause(2) - 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. ”
-“place of public resort” includes public parks, buses, railway, hospitals, etc.
-Prohibits discrimination of the part a private person

Question 19

ARTICLE 15 Clause (3), (4),(5)

Answer 19

Clause (3): Nothing in this article shall prevent the State from making any special provision for women and children.

Clause(4): Nothing in this article or in clause(2) of Article 29 shall prevent the State from 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.-Enables the State to make special provisions and not exclusive provisions for backward classes.-It is an enabling provision and does not impose any obligation on the State to take any special action under it.

Clause (5) empowers the state to make law/ special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes for admission to educational institutions including private educational institutions, whether aided or unaided except minority institutions

Question 20

ARTICLE 16

Answer 20

EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT-

Clauses (1) and (2) narrows down the Right to Equality provided under Article15.
-Clauses (1) and (2) restricts its application only to employment and appointment. - Clauses (1) and (2) ensures equality of representation in Government Services subjected to reasonable classification.

-Clauses (3), (4), (5) provides the exception to the Clauses (1) and (2).-Under Clause (3) the Parliament is empowered to make a law prescribing any requirement as to residence within that State or Union Territory, prior to employment or appointment to that State.-Clause(4) empowers the State to make a special provision for the reservation of appointment or posts for any backward class of citizens i.e. Socially and Educationally, if they are not adequately represented.
-Clause (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Question 21

Amendments to Art 15 & 16 -

Constitution ________ extended the reservation under Article 16 to promotions. Inserted Clause(4-A).

• Amendment to Article 15, added Clause [6] & Amendment to Article 16, added Clause [6].
• A maximum of _____ Reservation for Economically Weaker Sections (EWSs) of citizens of classes other than the classes mentioned in clauses (4) and (5) of Article 15, i.e. Classes other than socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes

Answer 21

77th Amendment Act of 1995 ;
10%

Question 22

ARTICLE 19

Answer 22

RIGHT TO FREEDOM

• Guarantees 6 Fundamental freedoms under Clause(1):
  (a) Freedom of Speech and Expression
  (b) Freedom of Assembly
  (c) Freedom to form Associations
  (d) Freedom of movement
  (e) Freedom to reside and to settle
  (f)–omitted-
  (g) Freedom of profession, occupation, trade and business.

-Not absolute rights and are subjected to reasonable restrictions provided under Clause (2) to Clause(6).-Restrictions can be imposed only by law and not by departmental instructions.-Rights under this Article is available to citizens only.-Rights under this Article is available to natural persons only

Question 23

Article19(1)(a):

Answer 23

Freedom of Speech and Expression

-Right to express one’s conviction, and opinions freely by words of mouth, writing, printing, pictures or any other mode.

-Includes Freedom of Press. Subject to restriction under Article19(2), e.g.: Censorship in films.
- Does not entitle to commit contempt of court.

Question 24

Article19(1)(b):

Answer 24

Freedom of Assembly

• Right to assemble peacefully without arms, e.g.: peaceful protest, peaceful processions, etc.
• Subject to reasonable restrictions under Article19(3) in the interest of sovereignty and integrity of India or public order

Question 25

Article19(1)(c):

Answer 25

Freedom of Association

• Right provided for pursuing lawful purposes e.g.: Labour Union, partnership firm, Political party, etc.; and not for unlawful purposes, e.g. Terrorist Organisation.

-Subject to reasonable restriction under Article19(4). Does not provide right to strike

Question 26

Article19(1)(d)&(e):

Answer 26

Freedom of Movement and Residence

• Right to move freely and reside anywhere throughout the territory of India.
• Right maybe restricted under Article 19(5) for the interest of general public or for protection of Scheduled Tribes.
  -Calling bandh by political parties restricting freedom of movement is unlawful

Question 27

Article19(1)(g):

Answer 27

Freedom of Profession and Trade

• Right to practice any profession or to carry on any occupation, trade or business.
• Restricted under Article19(6) wherein State may prescribe technical or professional qualification for carrying on any profession

Question 28

ARTICLE 21:

Answer 28

PROTECTION OF LIFE AND PERSONAL LIBERTY

• Available against both executive and legislative action.
• Personal Liberty is limited to the body of the individual and does not extend to property.
• Includes right to freedom not covered under Article19(1).
  -Not limited to physical existence but extends to the right to have a dignified life.
• Attempts to expand the ambit of Fundamental Rights

Question 29

PIL (Public Interest Litigation has extended the scope of Article 21 and made interpreted it very widely to include:

Answer 29

(a) Right to speedy trial;
(b) Right to dignity;
(c) Right to privacy;
(d) Right to clean environment;
(e) Right to Education (Article 21-As inserted by 86th Constitution Amendment Act, 2002).(f) Right to die;
(g) Right to Legal Aid;
(h) Right to food.

Question 30

ARTICLE 22:

Answer 30

SAFE GUARDS AGAINST ARBITRARY ARREST AND DETENTION

• Prescribes procedure under which a persons life and personal liberty maybe deprived.
• Clause(1)&(2) guarantees four rights:
  (a) The right to be informed of ground of arrest.
  (b) The right to consult and to be represented by a lawyer of his own choice.
  (c) The right to be produced before a Magistrate within 24 hours.
  (d) No detention beyond 24 hours except by order of Magistrate.
• Clause (3) provides two exception to the Rights under Clause(1) &(2),i.e. those Rights are not available to:
  (a) An enemy alien.-A person detained under preventive detention law, i.e. detention without trial [under Article22(4) to (7)]