Fundamental Rights

The fundamental rights are enshrined in Part III of the Indian Constitution under Articles 12 to 35. These were borrowed from the US constitution (Bill of Rights).  According to Dr B R Ambedkar, it is the most criticized part of the Constitution. The numbers of Fundamental Rights are 6 in the present day Constitution.

The fundamental rights are justifiable.

In the original Constitution 7 Fundamental Rights are mentioned.

  • Right to Equality (14-18)
  • Right to Freedom (19-22)
  • Right Against Exploitation (23-24)
  • Right to Freedom of Religion (25-28)
  • Cultural and Educational Rights (29-30)
  • Right to property (31) (Deleted through the 44th amendment)
  • Right to Constitutional Remedies (32).

In the year 1978, through 44th amendment act Right to P was deleted from the list of Fundamental Rights.

Now it is a legal right under Article 300 A in part XII of the constitution.

The state can impose restrictions on Fundamental rights. (They are not absolute but qualified).

Except Fundamental rights guaranteed under Articles 20 and 21 remaining Fundamental rights can be suspended during operation of National Emergency.

Article 19 can be suspended only when an emergency is declared on the grounds of war or external aggression and not on the grounds of armed rebellion.

Article 12 explains the state. The state includes

  • The government and the parliament of India
  • The government and the state legislature
  • All local authorities (municipalities, Panchayat Raj, District boards, etc)
  • Other statutory and non statutory authorities (LIC, ONGC etc).

The actions of the state (all the above said) can be challenged in the courts as the violation of Fundamental Rights.

Article 13: All laws that are inconsistent with or in derogation of any of the Fundamental Rights shall be void.

This article expressively provides for the doctrine of judicial review. This power is conferred to SC (Article 32) and High Courts (Article 226) that can declare a law unconstitutional and invalid on the grounds of contravention of any of the Fundamental Rights. The words “Judicial Review” are not mentioned in the Constitution.

RIGHT TO EQUALITY (14-18)

Article 14: Equality before law and equal protection of laws. This is taken from the US Constitution.

  • Equality before law: The absence of any special privileges in of any person
  • Note: Equality before the law is taken from the British Constitution.
  • Equal Protection of Laws: The equality of treatment under equal circumstances.

Article 15: Prohibition of discrimination on the grounds only of religion, race, caste, sex, or place of birth. (Access to various places).

Exceptions:

  • Special provisions for children and Women
  • Socially and economically backward sections
  • ·Scheduled castes
  • · Scheduled Tribes

Article 16: Equality of opportunity in matters of Public employment.

Article 16(4) empowers the state to make special provisions for the reservation of appointments or posts in favour of any “backward class of citizens” which in the opinion of the state are not adequately represented in the services of the state.

Article 17: Abolition of un-touch-ability and prohibition of its practice.

Accordingly the Parliament passed Untouchability (offences) Act, 1955. In the year 1976, this act is renamed as Civil Rights Act, 1955.

ARTICLE 18: Abolition of titles except military and academic.

On December 23, the High Court of Andhra Pradesh ordered personalities Mohan Babu and Bramhanandam to surrender ‘Padma Sri’ to the President.

RIGHT TO FREEDOM (19-22)

ARTICLE 19: Protection of 6 rights.

  • Right to freedom of speech and expression 19 (1) (a) (freedom of expression means the right to express one’s opinion by words of mouth, writing, printing, picture, or in any other manner)
  • Right to assemble  peacefully and without arms
  • Right to form associations
  • Right to mfreely throughout the territory of India
  • Right to reside and settle in any part of the territory of India
  • Right to practice any profession or to carry on any occupation, trade or business
  • Right to acquire, hold and dispose of property (deleted through 44th amendment)

Note: On November 20, the Maharashtra police arrested 2 women (Shaheen and her friend) for twitting in Facebook for the expression of their opinion after the demise of Shivasena leader Bal Thackery. This was objected many as the violation of article 19 (1) (a) of the Indian Constitution.

Article 20: Protection in respect of conviction for offences.

  • No ex-post-facto Legislation:
  • No Double Jeopardy
  • No Self-incrimination

Article 21: Protection of life and personal liberty except in accordance with the procedures established in law.

Right to live with human dignity, decent environment, privacy, free education up to 14 years etc.

Article 21 A: Right to free and compulsory education for all the children.

Note: This was present in Article 45 of the constitution. Through 86th amendment in it was made a fundamental right. This came into force on April 1, 2010.

Article 22: Protection against arrest and detention in certain cases.

Under punitive detention: right to be informed of the grounds of arrest, consult a legal practitioner, and produce before the magistrate within 24 hours.

Under preventive detention: grounds of detention should be communicated, provide an opportunity to make representation.

RIGHT AGAINST EXPLOITATION (23-24)

Article 23: Prohibition of traffic in human beings and forced .

Article 24: Prohibition of employment of children in factories.

RIGHT TO FREEDOM OF RELIGION (25-28)

Article 25: All persons are equally entitled to freedom of conscience, the right to freely.

  • profess
  • practice
  • And propagate religion. Note: Propagation does not include ‘forced conversions’.

Article 26: Freedom to Manage Religious Affairs

  • To establish and maintain institutions for religious and charitable purposes
  • Own and acquire movable and immovable property
  • Right to administer the property

Article 27: Freedom for Taxation for promotion of a religion.

No person shall be compelled to pay taxes for the promotion and maintenance of any religion.

Article 28: Freedom from attending religious instruction.

No religious instruction shall be provided in any educational wholly maintained out of state funds.

Religious instructions permitted if it is established by endowments or trust.

Article 28(3): No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

CULTURAL AND EDUCATIONAL RIGHTS (29-30)

Article 29: Right to conserve language, script or culture. The Article 29 grants protection to both religious and linguistic minorities.

Article 30: Right of Minorities to Establish and administer Educational Institutions: All Minorities have the right to establish and administer educational institutions of their choice.

RIGHT TO CONSTITUTIONAL REMEDIES (32)

The Supreme Court and High Courts can issue writs.

Right to move Supreme Court for the enforcement of Fundamental Rights including the writs of Habeas corpus, Mandamus, Prohibition, Certiorari and Quo warren to.

Under Article 359 of the constitution provides the right to move Supreme Court can be suspended during national emergency.

According to B R Ambedkar Article 32 is the heart and soul of the Indian Constitution.

HABEAS CORPUS: (TO PRODUCE THE BODY)

This means produce the body.

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. Hence this is against arbitrary detention. This can be issued to a private person or public authorities.

Mandamus: (To Command): Issued to a public official asking him to perform duties that he has failed or refused to perform. (this cannot be issued against President or Governor or CJ of or against any private person).

Prohibition: (to forbid): 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.

Certiorari (To be certified or to be informed): Issued by a higher court to a lower court or tribunal either to transfer case pending with the latter to it or to the order of the latter in a case.

Quowarranto (By what Authority?): It is issued by a court to enquire into the legality of claim of a person to a public office.

NOTE: Under Representation of Peoples Act of 1951 a person is allowed to contest from not more than 2 constituencies. In the year 2001 the leader of AIADMK Jayalalitaa contested from 4 constituencies (Andipatti, Krishnagiri, Bhuvanagiri and Pudukottai). On November 20, 2012 the Supreme Court quashed a criminal proceeding against CM J Jayalalithaa initiated for filing 4 nomination papers in the 2001 assembly polls and asked Madras High Court to re-examine its order to lodge the case against her.

Note: As per SC the HC of Madras did not consider the 2 reports of the Returning Officer were not considered while passing the order. 

The SC asked HC to examine the issue in 4 months. The SC order came on plea against the HC order to Commission to register a criminal case.

Note: All the 4 nominations of were rejected as she had been disqualified from contesting the polls at time due to her conviction in the TANSI land deal case. A former DMK MP C Kuppuswamy moved HC against the HC in June 2007 directed the EC to register a case and the same was stayed by the SC in July 2007.

The HC held that jayalalithaas declaration in 3rd and 4th constituencies (Bhuvanagiri and Pudukottai) that she has not been nominated from more than 2 segments was false to her own knowledge and amounts to violation of section 33 (7) (b) of the RPA as per which a candidate cannot contest from more than 2 constituencies.

Article 33: The Parliament is empowered to abrogate the fundamental rights of the members of armed forces, Para-military forces, police forces, intelligence agencies and other related agencies.

Note: The law made by the Parliament under Article 33 cannot be challenged in the court of law

Article 34: This provides for the restriction of the fundamental rights while martial law is in force in any area within the territory of the country.

Article 35: The Parliament makes laws to give effect to certain specified fundamental rights shall vest only in Parliament and not in the state legislature.

As per the provisions of 35 the Parliament prescribes residence as a condition for certain employments or appointments in a state or union territory or local authority. (Article 16).

The Parliament can empower the lower courts (Other than Supreme Court and High Courts) to issue directions, orders, and writs of all kinds for the enforcement of the fundamental rights.

MISCELLANEOUS

  • The concept of Martial Law has been borrowed from the English Common Law.
  • The words “Martial law” is not defined in the Constitution. The literal meaning is military rule.
  • Martial law is imposed to restore the breakdown of law and order due to any reason.
  • The concept of “Equality before law” is taken from UK.
  • The concept of “Equal Protection of Laws” taken from USA.
  • The term ‘untouchability’ is not defined in the constitution.
  • The term minority is not described in the constitution.
  • The writs were borrowed from English law and they are known as prerogative writs.
  • Right to Privacy (Article 21): The Supreme Court in the PUCL vs Union of India in 1997, had ruled that telephone conversation in private, without interference, would come within the purview of right to privacy as mandated in the Constitution; and unlawful means of phone tapping amounted to invasion of privacy and were uncivilized and undemocratic in nature.
  • The Supreme Court ruled that the right to life under Article 21 of the Constitution would include a pollution free environment.

In January 2012 the Supreme Court observed that the right to life and liberty guaranteed to a citizen under Article 21 of the Constitution cannot be taken away without following the due procedure. The mere apprehension of the authorities that an accused was likely to be released on bail was not a ground for passing preventive detention orders.

ü  As per the directions given by the Supreme Court, under RTE (Right To Education) Act all the Private schools will have to provide 25 percent reservation for poor students from the academic year 2012 -13.

Bombay High Court (October 29, 2013) on Article 28 (3): In 2008 Sanjay Salve an English teacher in Savitri Bhai Phule secondary school, Nasik was refused to fold his hands at prayer time in the school. The school has frozen his increments. He took the school to the court. The court ruled that the folding of hands at prayer time in state-funded schools could not be imposed on individuals as it went against Article 28 (3). Justice Abhay ruled that salve should respectfully remain present at prayers.