Fundamental Right - educatverse

Fundamental Rights

The Fundamental Rights is defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution are guaranteed by the Constitution to all person without any discrimination.
They are enforceable by the courts, subject to specific restrictions.

The sanction behind these FRs is for promoting the ideal of political democracy
The concept of fundamental rights first came into being in Magna Carta in England in 1215.
Fundamental Rights in Indian constitution is inspired by the ‘Bill of Rights’ (Fundamental Rights) included in the constitution of the USA
This section of the constitution is also called as Magna Carta of India
The FRs operates as limitations on the tyranny of the executive and arbitrary laws of the legislature.
Originally, the constitution provided for 7 FRs. However, the Right to property was deleted by the 44^th amendment act, 1978.

Characteristic features of fundamental rights-

Some FRs are available only to citizens: Articles 15, 16, 19, 29 and 30
Fundamental Rights are not absolute but qualified. Reasonable restrictions can be imposed on FRs. The reasonability of such restrictions is decided by the SC.
These rights strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control
Most rights are available against the actions of the state but some are available against the actions of the private individuals too
Some FRs is negative in character while others are positive. Negative FRs entail limitations on the government, while positive FRs imposes an obligation on government to take measures.
FRs are justiciable in nature
FRs are defended and guaranteed by the constitution. Hence, an aggrieved party can approach the SC for any violation directly rather than by the way of appeal
Parliament can amend the provisions of the FRs by way of a constitutional amendment act so long as they do not violate the basic structure of the Indian constitution
FRs can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Additionally, FRs under Article 19 can be suspended only during the operation of emergency declared on the grounds of war or external aggression
The scope of FRs is limited by Articles 31A, 31B and 31C
Parliament can restrict or abrogate the application of FR in the case of armed forces, para-military forces, police forces, intelligence agencies and analogous services
FR can be restricted while martial law is in force
Only Parliament can make a law for the enforcement of the FR

Definition of state (article 12)

Executive and legislative organs of the union
Executive and legislative organs of the state
All local bodies
All statutory and non-statutory authorities
Private body or agency working as an instrument of state can fall within the meaning of the state

Judicial review provision (article 13)

What constitutes law under article 13?

Permanent laws enacted by Parliament or state legislatures
Temporary laws like ordinances
Statutory instruments in the nature of delegated legislation
Non-legislative sources of law

Even constitutional amendment act can be challenged (Keshavananda Bharati case)

Right to equality

Article 14:

Right to equality: Equality before law and equal protection of laws

Includes legal persons as well
Equality before law: British version
Equal protection of laws: American constitution
It permits reasonable classification of persons, objects and transactions by the law but it should not be arbitrary

Note: In India, the constitution is the source of individual rights

Exceptions to equality

President and governor not answerable to court for their official acts
No criminal proceedings shall be instituted or continued against the President or the governor in any court during his term of office
No process for the arrest or imprisonment of the President or governor
Civil proceeding on personal acts only after two months notice
No liability of true reporting in newspapers
No member of Parliament shall be liable for anything said or vote
Article 31C
Foreign sovereigns enjoy immunity; this includes even UNO

Article 15–

No citizen of India shall be discriminated on the basis of religion, race, caste, sex or place of birth

Usage of two keywords- ‘discrimination’ and ‘only’
Ground mentioned in the article: religion, race, caste, sex or place of birth
The second provision in this article is applicable to even private individuals and legal persons

Exceptions

Special provisions for women and children
Advancement of socially and educationally backward classes of citizens or for the SC and ST
Provision for education of the above could be made for education in aided and unaided

Article 16: equality of opportunity in public employment

Addition of two more grounds: Descent or residence

Exceptions:

Parliament can prescribe residence as condition for certain employment
State can provide reservation for any backward classes if they are inadequately represented
Religious denomination exception

Abolition of untouchability: article 17

Protection of civil rights act, 1955
Term untouchability has not been defined anywhere in the constitution
It is available against even private individuals

Article 18: abolition of titles

State cannot confer titles until it is military or academic
Prohibits a citizen of India from accepting titles from foreign countries
Foreigner who holds office of profit should take consent of the President
No gift also for a foreigner without President’s approval

Right to freedom

Article 19: Right to freedom

It has six rights within it
Right to hold property was deleted by the 44^th amendment act of 1978
These rights are not applicable to aliens, legal corporation
They are not available against private individuals
Reasonable restrictions can be imposed on enjoyment of these rights
Restrictions should be based on the grounds mentioned in article 19 and not on any other grounds

Freedom of speech and expression

Includes freedom of commercial advertisements
Right against bundh called by a political party
Freedom of silence
It does not include right to strike

Reasonable restrictions

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

Freedom of assembly

Can be exercised only on public land
Assembly must be peaceful and unarmed
Reasonable restriction: sovereignty and integrity of India and public order

Freedom of association

Right to obtain recognition of the association is not a fundamental right
Right to strike is not a constitutional right can be regulated by appropriate law

Reasonable restriction: interest of general public and protection of interests of any scheduled tribes
Article 19 does not deal with movement outside the country
Freedom of residence is complementary to the above right
Freedom of profession

Article 20: Protection in respect of conviction for offences

Grants protection against arbitrary and excessive punishment to an accused person
Applicable to almost everyone

No ex-post facto law (not on civil or tax laws or even on criminal trials, preventive detention cases)
No double jeopardy (not available in proceedings before departmental or administrative authorities)
No self-incrimination (not applicable to civil proceedings)

Article 21: protection of life and personal liberty

“procedure established by law”
Gopalan case: not available against arbitrary legislative action
Maneka Gandhi case: wider interpretation of article 21 (just, fair and reasonable)
Various rights included under this are:
Right to live with human dignity.
Right to the decent environment including pollution-free water and air and protection against hazardous industries.
Right to livelihood.
Right to privacy.
Right to shelter.
Right to health.
Right to free education up to 14 years of age.
Right to free legal aid.
Right against solitary confinement.
Right to a speedy trial.
Right against handcuffing
Right against inhuman treatment.
Right against delayed execution.
Right to travel abroad.
Right against bonded labor.
Right against custodial harassment.
Right to emergency medical aid.
Right to timely medical treatment in a government hospital.
Right not to be driven out of a state.
Right to a fair trial.
Right of prisoner to have necessities of life.
Right of women to be treated with decency and dignity
Right against public hanging.
Right to hearing.
Right to information.
Right to reputation.
Right of appeal from a judgment of conviction
Right to social security and protection of the family
Right to social and economic justice and empowerment
Right against bar fetters
Right to appropriate life insurance policy
Right to sleep
Right to freedom from noise pollution
Right to electricity
Right to Privacy

Article 21A: Right to education

Free and compulsory education to all children in the age group of 6-14 years
Added by 86^th constitutional amendment act

Article 22: Protection against arrest and detention

Two types of detention: punitive and preventive

First part of article 22

Right to be informed on the grounds of arrest
Right to consult and be defended by a legal practitioner
Right to be produced before a magistrate within 24 hours
Right to be released after 24 hours unless the magistrate authorizes further detention

These are applicable to those acts which are of a criminal or quasi-criminal nature

These safeguards are not available to a person detained under preventive detention law and also to an alien

Preventive detection provisions are applicable to both citizens as well as aliens

Detention of a person cannot exceed three months unless an advisory board recommends the same (the board is to consist of judges of a high court)
Ground of detention should be communicated to Detenu. However, facts considered important may not be communicated
Opportunity for representation should be provided.

The Constitution has divided the legislative power with regard to preventive detention between Parliament (exclusively for defence, foreign affairs and security of India) and the state legislatures

Right against exploitation

right against exploitation

Article 23: Prohibition of traffic in Human beings and Forced Labour

Protection against private actions as well
Compulsion arising from economic reasons are also included
Exception: compulsory military service

Article 24: Prohibition of employment of children in factories etc

Does not prohibit employment in harmless activities
Commission for Protection of Child rights act, 2005 was enacted to provide for a national commission and state commission for child rights

Right to freedom of religion

Article 25: Freedom of conscience and free profession, practice and propagation of religion

No forcible conversions allowed
Available to both citizens and non-citizens
Covers both rituals and practices
It guarantees rights of individuals
State can regulate these religious institutions
State can provide for social welfare and reform

Article 26: Freedom to manage religious affairs

To establish institutions
To manage its religious affairs
To own property
To administer such property
It guarantees rights of religious denominations
These are not subject to other provisions relating to FR

Religious denomination

Group of people with common belief
Common organization
Distinctive name

Article 27: Freedom of taxation for promotion of a religion

It prohibits levy of a tax and not fee

Article 28: Freedom from attending religious instruction

Institution wholly setup by use of state funds: prohibited
Institution administered by state but established by a trust: allowed
Institutions recognized by a state: voluntary basis
Institution receiving aid from state: voluntary basis

Cultural and educational rights

Article 29: right to conserve distinct language, script or culture of its own

No discrimination can be made on the basis of language in educational institutions
This is applicable to not just to minorities
It provides protection to both religious and linguistic minorities

Article 30: To administer educational institutions

Applicable to both religious and linguistic minorities
Here, protection is confined only to minorities

Right to constitutional remedies

Article 32: Right to constitutional remedies

Most important part of the Fundamental Rights
Parliament can empower any other court to issue directions, orders and writs of all kinds
President can suspend the enforcement of Fundamental rights during a national emergency (article 359)
Article 32 can be invoked in only those cases where there is violation of FR

Writs

Before 1950, only high court of Bombay, Madras and Calcutta could issue writs.
Idea borrowed from British
Writ jurisdiction of Supreme Court is narrower
Territorial jurisdiction of SC is much greater than HC
SC is the defender and guarantor of fundamental rights

Habeas Corpus

Tool of individual liberty against arbitrary detention
Can be issued against both public and private individuals
The writ cannot be issued in following cases:

Detention is lawful
Proceedings is for contempt of legislature or court
Detention is by a competent court
Detention is outside court jurisdiction

Mandamus

Demanding a public official to perform a duty which he has failed to perform
Can be issued against an inferior court also
Cannot be issued against a private individual or body. To enforce departmental instruction that does not possess statutory force; when the duty is discretionary; to enforce a contractual obligation; against President of governor; against CJI of a high court acting in judicial capacity

Prohibition

It means ‘to forbid’
Issued by a higher court to a lower court
To prevent exceeding jurisdiction
Only against judicial and quasi-judicial bodies
Not available against administrative authorities, legislative bodies and private individuals or bodies

Certiorari

Much like above but it is curative as well
Available against administrative authorities as well

Quo-Warranto

To adjudicate the legality of a claim of a person to public office
It can be issued against public office of substantive character
Cannot be issued against ministerial or private office
Any interested person can seek the application of this

Armed force and fundamental right

Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of the armed forces, para-military forces, police forces, intelligence agencies and analogous forces.
Objective behind this article is to ensure proper discharge of their duties and maintenance of disciple among them
Power to make laws under this is conferred only to Parliament

Martial law and fundamental right

Article 34 provides for the restrictions on FRs while martial law is in force in any area within the territory of India
Parliament is authorized to indemnify any government servant for restoration of law and order whilst martial law is in force even if those actions were violative of FRs
The concept of Martial law has been borrowed from British
Despite its mention, the term ‘martial law’ has not been defined in the constitution
There are no grounds mentioned for the imposition of Martial law
During the operation of martial law, the military authorities are vested with abnormal powers to take all necessary steps.

However, the SC held Habeas Corpus is not suspended when martial law is in force

Effecting certain and fundamental right

Article 35: effecting certain fundamental rights—The parliament shall have the rights and the state legislature shall not have the right to make laws in the following provisions:

Prescribing residence as a condition for certain employments or appointments in a union territory or local authority or other authority
Empowers courts other than Supreme Court and high courts to issue directions, orders and writs of all kinds
Restricting or abrogating the application of fundamental rights to members of armed forces, police forces etc
Indemnifying any government or any other person for any act done during the operation of martial law in any area
Punishment for acts involving untouchability
Traffic in human beings and forced labour

Exception to fundamental right

Article 31A, 31B and 31C

Article 31A: Saving of laws providing for acquisition of estates etc

It saves five categories of laws from being challenges and invalidated on the ground of contravention of article 14 and article 19

Acquisition of states and related rights by the state
Taking over the management of properties by the state
Amalgamation of corporations
Extinguishment or modification of rights of directors or shareholders of corporations and
Extinguishment or modification of mining leases

Article 31B: Validation of certain acts and regulations

It saves the acts and regulations included in the 9^th schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights
SC in one of its judgment ruled that there could not be any blanket immunity. Laws enacted after Keshavananda Bharati judgment can be challenged in court if they violate FRS guaranteed by 14, 15, 19 and 21

Article 31C: Saving of laws giving effect to certain directive principles

It contains following two provisions:

No law shall be deemed void if it seeks to give effect article 39 (b) or 39 (c) even if it violates Article 14 or article 19
Barring of courts to question such laws made so that it does not give effect to such a policy. (This provision was deemed unconstitutional by the court in the Keshavananda Bharati judgment)

Significance of fundamental right

Bedrock of political democracy
Provides material and moral protection
Bulwark of individual liberty
Facilitate the establishment of rule of law
Protect the interests of minorities and weaker sections of the society
Strengthen the secular fabric of the Indian state
Acts as a check to the absolute authority of the government

Criticism of fundamental right

Excessive limitations
No and social economic rights
No clarity
No permanency
Suspension during emergency
Expensive remedy
Preventive detention
No consistent philosophy

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