Fundamental Rights (Part 1)

Question 1

What are rights and its functions?

Answer 1

Rights are legally protected interest.

Rights have dual function to perform - in protective role they are claims of an individual against the state and protects individual from arbitrary actions of the state and in - promoting role - a right guarantees those conditions which help the individual to develop oneself fully.

Question 2

What are Fundamental rights?

Answer 2

Those rights included in the part III of the constitution. They are legally protected interest and are guaranteed by the constitution without any discrimination.
They are a mixture of natural rights ( right to life) and legal rights( civil and political)) and through SC interpretation various economic rights have been made a part of them as well( right to work and right to rest etc)

Question 3

Why are they called FR?

Answer 3

1. They are fundamental (most essential) for an all round development (material, spiritual, moral and intellectual) of an individual.
2. They are fundamental in the sense that they have been incorporated in the fundamental law of the land.
3. They are inviolable and are to be honoured by government at all times
4. They are justiciable and available to all citizens
5. They are important that an individual can directly approach SC for their violation.

Question 4

Part and Articles related to FR

Answer 4

Part - III
Articles -12-35

Question 5

FR are inspired from?

Answer 5

Bill of rights ( constitution of USA)

Question 6

Why do we need FR?

Answer 6

1. They uphold equality of all individuals, dignity of an individual and unity of the nation
2. Prevent the establishment of authoritarian and despotic rule.
3. Protect liberty and freedom against invasion of the state
4. Put limitations on the tyranny of the executive and arbitrary law of the legislature
5. Aims to establish a govt of law and not of men
6. Essential for all round development of an individual

Question 7

What are the features of fundamental rights?

Answer 7

1. Some are available only to citizens while some are available to citizens, foreigners and legal persons
2. They are not absolute but qualified ➡️ government can impose reasonable restrictions on them ➡️ to strike balance between individual liberty and social control
3. All are available against the arbitrary actions of the state while some are also available against the action of a private individuals
4. Some are negative (impose limitations on state) while some are positive (confers certain privileges on person)
5. They are justiciable ➡️ can move to court if violated
6. Defended and guaranteed by SC➡️ can directly approach SC
7. Not permanent or sacrosanct ➡️ can be curtailed/repealed or amended by CAA ➡️ but not beyond Basic structure
8. Promote ideal of political democracy
9. Can be suspended during national emergency except 20 and 21
10. Most of them are self executory/ directly enforceable while some need laws to be enforced ( only parliament can make such laws)
11. Scope of operation is limited by:
    Art 31A, Art 31B and Art 31C
12. Application on members of armed forces, para military forces, police forces, intelligence agency can be restricted by parliament (art 33)
13. Can.be restricted when martial law is in effect (art 34)

Question 8

What are the exceptions to the applicability of FR?

Answer 8

1. Not sacrosanct or permanent ➡️ can be curtailed or repealed by a CAA (not beyond Basic structure)
2. Can be suspended during national emergency except 20 and 21
3. Scope of operation is limited by:
   31A(saving of laws providing for acquisition of estate)
   31B( articles under 9th schedule)
   31C( saving laws giving effect to some DPSP)
4. ART 33
   5 ART 34

Question 9

Which FR are not self executory in nature?

Answer 9

All rights are self executory except 17,18,21A, 23,24 ➡️ need parliamentary law for implementation

Art 17➡️ untouchability ➡️ civil rights protection act,1955

Art 18(2)➡️ no citizen can recieve a title from a foreign state➡️ no law yet

Art 21A➡️ added by 86th CAA➡️ RTE Act, 2009

Art 23➡️ rights against exploitation ➡️immoral traffic prohibition Act,1956 and bonded labour abolition Act, 1976

Art 24➡️ prohibits employment of children under 14➡️ child labour prohibition and regulation Act, 1986

Question 10

What is Art 12?

Answer 10

Definition of State

Question 11

What is state as per Article 12?

Answer 11

The state includes:
1. Government and parliament of India
2. Government and legislature of state
3. All local authorities ( eg - municipality, panchayat etc)
4. All other authorities (statutory or non statutory bodies)

Question 12

What is not state ?

Answer 12

1.Judiciary when it is performing judicial functions but it’ll be treated as state in it administrative functions like hiring of staff etc

Question 13

What is the test for determining whether an entity is an instrumentality or agency of the state?

Question 14

What is article 13?

Answer 14

1. It declares all the laws that are inconsistent with or in derogation to part III of the constitution shall be void and state shall not make any law that takes away or abridges the FR ➡️ gives the power of judicial review to the courts ( however the word JR is not mentioned)
2. Defines the word LAW

Question 15

What is LAW as per Article 13?

Answer 15

1. Permanent laws by parliament or state legislature or by any competent authority before the commencement of the constitution and has not been repealed
2. Temporary laws like ordinances by president and Governor
3. Statutory instruments like order,bye law, rule, regulations, notification
4. Non legislative sources of laws like custom or usage having force of law

Question 16

What is not law as per Article 13?

Answer 16

CAA is not law under Art 13 and hence cannot be challenged but in the KBC , SC held that CAA can be challenged if it violates FR however it’s not a law

Question 17

Art 14-18?

Answer 17

Right to equality ( Law DOUT)
Art 14 - EBL&EPL
Art 15 - prohibition of discrimination on ground of RRCSB
Art 16 - equality of opportunity in the matters of public employment
Art 17 - Abolition of untouchability
Art 18 - Abolition of titles

Question 18

Article 14 - what, available against and available to, prohibits and allows

Answer 18

Article 14 - The state shall not deny to any person equality before the law or the equal protection of the laws within TOI
Available against - state action
Available to - Citizens, foreigners (except enemy aliens) and legal persons ( statutory corporation, society, companies etc)

Article 14 prohibits class legislation but permits reasonable classification

Question 19

Define EBL?

Answer 19

It’s a British concept and has a negative connotation to it.

It is absence of any special privileges to anyone and equal subjection of all person to the ordinary law of land and no person is above the law.

Question 20

Define EPL?

Answer 20

It is a positive concept and inspired by American constitution.

Equality of treatment under equal equal circumstances, both in privileges conferred and liabilities imposed.

Question 21

What is rule of law?

Answer 21

Coined by AV dicey and it’s part of basic structure

Three elements:
1. Absence of arbitrary power ➡️no person can be punished except for the breach of law
2. Equality before law
3. Rights of individual are defined and enforced by courts of law rather than constitution being the source of individual rights ➡️ not applicable to India as Constitution is the source of individual rights.

Question 22

What are the exceptions to Art 14?

Answer 22

1. Article 361 - Protection of president and governor ( not answerable in court for the excercise and performance of the powers and duties of his office, no criminal proceedings during his term of office, can’t be arrested during his term of office, no civil proceedings except on notice of two months)
2. Art 361 A - no person is liable to any civil or criminal proceedings in respect of publication of a substantially true report of any proceedings of parliament of state legislature.
3. No MP is liable to any court proceedings WRT anything said or any vote given by him in parliament or committee.
4. Art 31C - law made to implement art 39b and c of DPSP cannot be challenged even if it violates art 14.
5. Foreign sovereign, ambassador and diplomats enjoy civil and criminal immunity.

Question 23

What is Art 15? - available to and against

Answer 23

Available to citizens only

15(1) - the state shall not discriminate against any citizen only on the grounds of RRCSPOB ➡️ available against state action

15(2) - no citizen shall be subjected to any DLRC only on the grounds of RRCSPOB with regard to:
(a) access to shops, public restaurants, hotel and Places of public entertainment
(b) use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partially by the state funds.
15(2) ➡️ available against the action of state as well as pvt individual

Question 24

What are the exceptions to Article 15?

Answer 24

15(3) ➡️ state is permitted to make any special provisions for women and children

15(4) ➡️ nothing in this article or 29(2) shall prevent the state from making any special provisions for advancement of any SEBC or SC or ST ➡️ added by 1st CAA

15(5) ➡️ nothing in this article or 19(1)(g) shall prevent the state for making special provisions for SEBC/SC/ST which is related to their admission to educational institutions including private educational institutions (aided or unaided) except for minority institutions ➡️ added by 93rd, 2005

15(6)(a) and 15(6)(b) ➡️ same as above except it’s for the special provision for economically weaker sections and maximum 10% reservation ➡️ added by 103rd, 2019 ➡️ EWS shall be notified by state from time to time

Question 25

Art 16 - what , available to, provisions

Answer 25

Equality of opportunity in matters of public employment

Available to - citizens

16(1) - there shall be equality of opportunity in the matters of employment to any office under state

16(2) - no citizen shall be discriminated only on the grounds of RRCSDPOBR wrt employment

Question 26

What are the exceptions to art 16?

Answer 26

There are four exceptions -

16(3) - parliament by law can prescribe residence as a condition for employment in state/UT/local authority

16(4) - state can provide reservation for any backward class if not adequately represented in the services ( 16(4A) - reservation in promotion - added by 77th CAA)

16(5) - parliament by law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to a particular religion or denomination

16(6) - state by law can give 10% reservation to EWS

Question 27

What is art 17 - available to and against , doesn’t include?

Answer 27

Art 17 abolishes untouchability and forbids its practice in any form and enforcement of any disability arising out of untouchability shall be a punishable offence in accordance with law. ➡️ constitution doesn’t define untouchability

Available to - citizens as well as foreigners
Available against - state and private individuals

Doesn’t include - social boycott or the exclusion from religious services

Question 28

What is the law made to ensure Art 17?

Answer 28

Untouchability (offences) Act, 1955 ➡️ renamed as ➡️ protection of civil rights Act, 1955

Question 29

Art 18 - what, provision

Answer 29

What - abolition of titles

18(1) - prohibits state from conferring titles (except military or academic) to any one(citizen or foreigners)

18(2) - prohibits citizen of India from accepting any title from foreign state

18(3) - a foreigner holding any OOP or trust cannot accept any title from foreign state without president’s consent

18(4) - no citizen/foreigner holding OOP cak accept any present, emoluments or office by foreign state without president’s consent