Contents
Major characteristics of
Fundamental Rights:
Article 12: Definition of
state
Article 14: Equality
before Law and Equal Protection of Laws
Article 15: Prohibition
of Discrimination on Certain Grounds
Article 16: Equality of
Opportunity in Public Employment
Article 17: Abolition of
Untouchability & Prohibition of its practice
Article 18: Abolition of
Titles
Right to freedom
(Articles 19-22)
Article 19: Article 19
guarantees six rights to all citizens
Article 20: Protection in
Respect of Conviction for Offences
Article 21: Protection of
Life and Personal Liberty
Article 21-A Right to
Education
Article 22: Protection
against Arrest and Detention
Right against
exploitation (Article 23-24)
Article 23: Prohibition
of Traffic in Human Beings and Forced Labour
Article 24: Prohibition
of Employment of Children in Factories, etc.
Right to freedom of
religion (Article 25-28)
Article 25: Freedom of
Conscience and Free Profession, Practice and Propagation of Religion
Article 26: Freedom to
Manage Religious Affairs
Article 27: Freedom from
Taxation for Promotion of a Religion
Article 28: Freedom from
Attending Religious Instruction
Cultural and educational
rights (Article 29-30)
Article 29: Protection of
Interests of minorities
Article 30: Right of
Minorities to establish & administer educational Institutions
Right to property
(Article 31):
Right to constitutional
remedies (Article 32)
Article 33: Armed Forces
and Fundamental Rights
Article 34: Martial Law
and Fundamental Rights
Part III of the Constitution is described as the Magna
Carta of India. The Fundamental Rights
are named so because they are guaranteed and protected by the Constitution
drawn from US constitution of Bill of Rights 225 years ago
Originally the Constitution provided for 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 [Art 25-28]
5.
Cultural and
educational rights [Art 29-30]
6.
Right to
property [Art 31]
7.
Right to
constitutional remedies [Art 32]
However, the ‘Right to Property’ was deleted from
the list of fundamental rights by the 44th Constitutional Amendment Act, 1978. It has been made a legal right under Article
300- A in the Constitution so, at present, there are only six fundamental
rights.
State includes the following:
(a)
Government and Parliament of India, that is,
executive and legislative organs of the Union government.
(b)
Government and legislature of states, that is,
executive and legislative organs of state government.
(c)
All local authorities that is, municipalities,
panchayats, district boards, improvement trusts, etc.
(d)
All other authorities, that is, statutory or
non-statutory authorities like LIC, ONGC, SAIL, etc.
1.
Pre-constitutional laws.
2.
All laws that are inconsistent with or in derogation
of any of the fundamental rights shall be void.
3.
A constitutional amendment is not a law and hence
cannot be challenged.
However, the Supreme Court held in the Kesavananda
Bharati case (1973) that a Constitutional amendment can be challenged on
the ground that it violates a fundamental right that forms a part of the ‘basic
structure’ of the Constitution and hence, can be declared as void.
Article 14 says that the State shall not deny to any
person equality before law or the equal protection of the laws within the
territory of India. This provision confers rights on all persons whether
citizens or foreigners.
Rule of Law
The concept of ‘equality before law’ is an element of the concept of ‘Rule of
Law’, propounded by A.V. Dicey, the British jurist.
Exceptions:
·
The President
of India and the Governor of States enjoy the immunities as mentioned in
article 361. Eg: No criminal proceedings or arrest warrant against them while
they are in force.
·
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 105).
·
No member of
the Legislature of a state shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any
committee thereof (Article 194).
·
Article 31-C
is an exception to Article 14. It provides that the laws made by the state for
implementing the Directive Principles contained in clause (b) or clause (c) of
Article 39 cannot be challenged on the ground that they are violating Article
14. The Supreme Court held that “where Article 31-C comes in, Article 14 goes
out”.
1.
Article 15 provides that the State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex
or place of birth.
2.
No citizen shall be subjected to any disability,
liability, restriction or condition on grounds only of religion, race, caste,
sex, or place of birth with regard to –
(a)
Access to shops, public restaurants, hotels and
places of public entertainment; or
(b)
The use of wells, tanks, bathing Ghats, road and
places of public resort maintained wholly or partly by State funds or dedicated
to the use of general public.
Exceptions:
1.
Special provision for women and children can be
made Eg: Reservation
2.
Reservation to SC & ST like admission in
educational institutions, Concession of fees.
Article 16 provides that no citizen can be
discriminated against or be ineligible for any employment
or
Office under the State on grounds of only religion,
race, caste, sex, descent, place of birth or residence.
Exceptions:
·
Parliament can prescribe residence as a condition
for certain employment or appointment in a state or union territory or local
authority or other authority.
·
The State can provide for reservation of
appointments or posts in favour of any backward class that is not adequately
represented in the state services.
Examples: Indira Sawhney vs Union of India case, Aftermath
of mandal commission report supreme court ruled that reservation should not
exceed more than 50% in total for any public employment.
Article 17 abolishes ‘untouchability’ and forbids
its practice in any form. The term ‘untouchability’ has not been defined either
in the Constitution or in the Act.
Protection of Civil Rights Act (1955) declares the
following acts as offences:
a.
Preventing any person from entering any place of
public worship or from worshipping therein;
b.
Justifying untouchability on traditional, religious,
philosophical or other grounds;
c.
Denying access to any shop, hotel or places of
public entertainment;
d.
Insulting a person belonging to scheduled caste on
the ground of untouchability;
e.
Refusing to admit persons in hospitals, educational
institutions or hostels established for public benefit;
f.
Preaching untouchability directly or indirectly; and
g.
Refusing to sell goods or render services to any
person.
Article 18 prohibits the state from conferring any
title (except a military or academic distinction) on anybody, whether a citizen
or a foreigner. It also prohibits a citizen of India from accepting any title
from any foreign state. For Example: titles like Maharaja, Raj Bahadur,
RaiBahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial
States are banned by Article 18 as these are against the principle of equal
status of all.
Right
to freedom (Articles 19-22)
Article 19: Article 19
guarantees six rights to all citizens
These are:
(a) Right to freedom of speech
and expression: It implies
that every citizen has the right to express his views, opinions, belief and
convictions freely by word of mouth, writing, printing, picturing or in any
other manner.
(b) Right to assemble peaceably
and without arms: 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 and the assembly must be peaceful
and unarmed. This provision does not protect violent, disorderly, riotous
assemblies, or one that causes breach of public peace or one that involves
arms. This right does not include the right to strike.
(c) Right to form associations
or unions: All citizens
have the right to form associations or unions or co-operative societies. It
includes the right to form political parties, companies, partnership firms,
societies, clubs, organisations, trade unions or anybody of persons. It not
only includes the right to start an association or union but also to continue
with the association or union as such.
(d) Right to move freely
throughout the territory of India: This freedom 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 right underline the idea that India
is one unit so far as the citizens are concerned. Thus, the purpose is to
promote national feeling and not parochialism.
(e) Right to reside and settle
in any part of the territory of India: Every citizen has the right to reside and settle in
any part of the territory of the country. This right has two parts:
Ø The right to
reside in any part of the country, which means to stay at any place
temporarily, and
Ø The right to
settle in any part of the country, which means to set up a home or domicile at
any place permanently.
(f)
Right to practise any
profession or to carry on any occupation, trade or business: All citizens
are given the right to practise 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.
Freedom of
press comes under the freedom of speech and expression mentioned in Article
19 This also includes right to propagate
one’s views, right to telecast, right to know about the government, right
against encroachment into one’s privacy, right to demonstration and picketing,
etc.
Article 20 grants protection against arbitrary and
excessive punishment to an accused person, whether citizen or foreigner or
legal person like a company or a corporation. It contains three provisions in
that direction:
(i)
No ex post facto law: No person
shall be convicted of any offence except for violation of a law in force at the
time of the commission of the act, nor subjected to a penalty greater than that
prescribed by the law in force at the time of the commission of the act.
(ii)
No double jeopardy: No person
shall be prosecuted and punished for the same offence more than once The
protection against double jeopardy is available only in proceedings before a
court of law or a judicial tribunal.
(iii) No self-incrimination: No person accused of any offence
shall be compelled to be a witness against himself.
Article 21 declares that no person shall be deprived
of his life or personal liberty except according to procedure established by
law. This right is available to both citizens and non-citizens. Following are
some of the important rights under Article 21 as declared by the Supreme Court:
a)
Right to live
with human dignity.
b)
Right to
decent environment including pollution free water and air and protection
against hazardous industries.
c)
Right to
livelihood.
d)
Right to
privacy.
e)
Right to
shelter.
f)
Right to
health.
g)
Right to free
education up to 14 years of age.
h)
Right to free
legal aid.
i)
Right against
solitary confinement.
j)
Right to
speedy trial.
k)
Right against
handcuffing.
l)
Right against
inhuman treatment. Etc....
In 1950 ‘AK Gopalan case’ the
supreme court has taken narrow interpretation of Article 21 & held that
protection is available only against arbitrary executive action & not from
arbitrary executive action i.e. state can deprive right to life & personal
liberty of a person under ‘Procedure established by law’ but not on ‘Due
process of law’. But later Supreme court overruled it judgment in ‘Menaka
Gandhi case’ made wider interpretation that due process of law is considered
under fair, just & reasonable circumstances.
Article 21-A Right to
Education
This article declares that the State shall provide
free and compulsory education to all children of the age of six to fourteen
years in such a manner as the State may determine. Thus, this provision makes
only elementary education a Fundamental Right and not higher or professional
education. This provision was added by the 86th Constitutional Amendment Act of
2002. This amendment is a major milestone in the country’s aim to achieve
‘Education for All’. The Parliament enacted the Right of Children to Free and
Compulsory Education (RTE) Act, 2009 seeks to provide that every child has a
right to be provided full time elementary education.
This Article grants protection to persons who are
arrested or detained .Detention is of two types, namely, punitive and
preventive.
Punitive
detention is to punish
a person for an offence committed by him after trial and conviction in a court.
Grounds of detention should be communicated except it is against the public
interest right to legal representation and to be heard.
Preventive
detention, on the
other hand, means detention of a person without trial and conviction by a
court. Its purpose is not to punish a person for a past offence but to prevent
him from committing an offence in the near future. This can increased beyond 3
months. An Advisory board consists of judges of High court or persons having
qualification to be appointed as such, before expiry of 3 months, feels that sufficient
cause for detentions.
·
India is the
only country where Preventive detention is implicit in the constitution.
Right against
exploitation (Article 23-24)
Article 23:
Prohibition of Traffic in Human Beings and Forced Labour
This prohibits traffic in human beings, beggar (forced
labour) and other similar forms of forced labour. Any contravention of this
provision shall be an offence punishable in accordance with law. This right is
available to both citizens and non-citizens. It protects the individual not
only against the State but also against private persons.
The expression ‘traffic in human beings’ include:
(a)
Selling and buying of men, women and children like
goods;
(b)
Immoral traffic in women and children, including
prostitution;
(c)
Devadasis;
(d)Slavery. To
punish these acts, the Parliament has made the Immoral Traffic (Prevention)
Act13, 1956.
Exception:
State can
Impose compulsory service for public purposes. No discrimination on ground only
for religion, race, cast or class or any of them.
Article 24
prohibits the employment of children below the age of 14 years in any factory,
mine or other hazardous activities like construction work or railway. But it
does not prohibit their employment in any harmless or innocent work.
Some of the laws made with respect to this article
is Child Labour (Prohibition and Regulation) Act, 1986, Protection of Child
Rights Act, 2005.....
Right to freedom of
religion (Article 25-28)
Article 25: Freedom of
Conscience and Free Profession, Practice and Propagation of Religion
Article 25 says that all persons are equally
entitled to freedom of conscience and the right to freely profess, practise and
propagate religion It covers not only
religious beliefs (doctrines) but also religious practices (rituals) Moreover,
these rights are available to all persons—citizens as well as non-citizens
(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 and dissemination of one’s religious
beliefs to others or exposition of the tenets of one’s religion. But, it does
not include a right to convert another person to one’s own religion. Forcible
conversions impinge on the ‘freedom of conscience’ guaranteed to all the
persons alike.
Exceptions: Wearing & carrying of kirpans is to be included
in the profession of the Sikh religion, & the Hindus include Sikhs, Jain
& Buddhists.
According to Article 26, every religious
denomination or any of its section shall have the following rights:
(i)
Right to establish and maintain institutions for
religious and charitable purposes;
(ii)
Right to manage its own affairs in matters of
religion;
(iii)
Right to own and acquire movable and immovable
property.
Article
27: Freedom from Taxation for Promotion of a 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 from Attending Religious Instruction
Under Article 28, no religious instruction shall be
provided in any educational institution wholly maintained out of State funds.
Four types of educational institutions mentioned in
this article:
(a)
Institutions wholly maintained by the State.
(b)
Institutions administered by the State but
established under any endowment or trust.
(c)
Institutions recognised by the State.
(d)
Institutions receiving aid from the State.
In (a) religious instruction is completely prohibited while in (b), religious
instruction is permitted. In (c) and (d), religious instruction is permitted on
a voluntary basis.
Cultural and
educational rights (Article 29-30)
Article 29: Protection
of Interests of minorities
Article 29 provides that any section of the citizens
residing in any part of India having a distinct language, script or culture of
its own, shall have the right to conserve the same. Further, 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, or
language.
Article 30: Right of
Minorities to establish & administer educational Institutions Article 30 grants the following rights to
minorities, whether religious or linguistic:
(i)
All minorities shall have the right to establish and
administer educational institutions of their choice.
(ii)
In granting aid, the State shall not discriminate
against any educational institution managed by a minority.
Thus, the protection under Article 30 is confined
only to minorities (religious or linguistic) and does not extend to any section
of citizens (as under Article 29)
Right to property (Article
31):
The right to property was deleted from the list of
Fundamental Rights by the 44th Amendment Act, 1978 It has been made a legal right under Article
300-A
The right to property as a legal right (as distinct
from the Fundamental Rights) has the following implications:
(a)
It can be regulated i.e., curtailed, abridged or
modified without constitutional amendment by an ordinary law of the Parliament.
(b)
It protects private property against executive
action but not against legislative action.
(c)
In case of violation, the aggrieved person cannot
directly move the Supreme Court under Article 32 (right to constitutional
remedies including writs) for its enforcement. He can move the High Court under
Article 226.
(d)
No guaranteed right to compensation in case of acquisition
or requisition of the private property by the state.
Right to
constitutional remedies (Article 32)
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 Hence, Article 32 confers the right to
remedies for the enforcement of the fundamental rights of an aggrieved citizen,
i e the right to get the Fundamental
Rights protected is in itself a fundamental right So, Dr Ambedkar called Article 32 ‘Soul of
the Constitution’ Any aggrieved person
can move the Supreme Court for the enforcement of the Fundamental Rights The Supreme Court shall have power to issue
directions or orders or writs for the enforcement of any of the fundamental
rights The writs issued may include
Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-Warranto
The Supreme
Court (under Article 32) and the High Courts(under Article 226) can issue the
writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto
Habeas Corpus: It literally
means ‘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 latter before it
The court then examines the cause and legality of detention It would set
the detained person free, if the detention is found to be illegal.
Mandamus: It literally means ‘we command’ It is a 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 also be issued
against any public body, a corporation, an inferior court, a tribunal or government
for the same purpose.
Prohibition: It 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 possess Thus, unlike Mandamus that directs activity,
the prohibition directs inactivity The
writ of prohibition can be issued only against judicial and quasi-judicial
authorities It is not available against
administrative authorities, legislative bodies, and private individuals or
bodies.
Certiorari: In the literal sense, it 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 It is issued on the grounds of excess of
jurisdiction or lack of jurisdiction or error of law Thus, unlike prohibition, which is only
preventive, certiorari is both preventive as well as curative Like prohibition, certiorari is also
not available against legislative bodies and private individuals or bodies.
Quo Warranto: In the
literal sense, it 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 Hence, it prevents illegal usurpation of
public office by a person
Note: Rights outside Part III are:
·
Art 300A: Right to acquire property
·
Art 326: Right to vote
Article 33: Armed Forces and Fundamental
Rights
This empowers
the Parliament to restrict or abrogate the fundamental rights of the members of
armed forces, para-military forces, police forces, intelligence agencies and
analogous forces. The objective of this provision is to ensure the proper
discharge of their duties and the maintenance of discipline among them. The
power to make laws under Article 33 is conferred only on Parliament and not on
state legislatures. Any such law made by Parliament cannot be challenged in any
court on the ground of contravention of any of the fundamental rights.
Not described
in constitution (Military law)
·
Restriction
of FR’s while Martial law is in force in any area within the territory of
India.
·
Martial law
will not come into force in entire India only in particular area.
·
It cannot be
questioned in court of law even in case of FR’s.
·
Suspends the
govt & Ordinary law courts.
·
Imposed to
restore breakdown of law & order due to any reason
·
It is
implicit in constitution, but not specified explicitly.
·
Civil
authorities are run by Military authorities according to their own rules and
regulations.
·
Abolishes the
rights of citizens, can punish the civilians & even condemn then to death.
Article 35
lays down that the power to make laws, to give effect to certain specified
fundamental rights shall vest only in the Parliament and not in the state
legislatures.
1)
The Parliament shall have (and the legislature of a
state shall not have) power to make laws with respect to the following matters:
a)
Prescribing residence as a condition for certain
employments or appointments in a state or union territory or local authority or
other authority (Article 16).
b)
Empowering courts other than the Supreme Court and
the high courts to issue directions, orders and writs of all kinds for the
enforcement of fundamental rights (Article 32).
c)
Restricting or abrogating the application of
Fundamental Rights to members of armed forces, police forces, etc. (Article
33).
d)
Indemnifying any government servant or any other
person for any act done during the operation of martial law in any area
(Article 34).
2)
Parliament shall have (and the legislature of a
state shall not have) powers to make laws for prescribing punishment for those
acts that are declared to be offences under the fundamental rights.
These include the following:
(a) Untouchability
(Article 17).
(b) Traffic in
human beings and forced labour (Article 23).
Significance of
Fundamental Rights
In spite of the above criticism and shortcomings,
the Fundamental Rights are significant in the following respects:
1.
They constitute the bedrock of democratic system in
the country.
2.
They provide necessary conditions for the material
and moral protection of man.
3.
They serve as a formidable bulwark of individual
liberty.
4.
They facilitate the establishment of rule of law in
the country.
5.
They protect the interests of minorities and weaker
sections of society.
6.
They strengthen the secular fabric of the Indian
State.
7.
They check the absoluteness of the authority of the
government.
8.
They lay down the foundation stone of social
equality and social justice.
9.
They ensure the dignity and respect of individuals.
They facilitate the participation of people in the
political and administrative process.