Fundamental Rights

• Source: Derived from US Constitution (Bill of Rights).

• Guaranteed to all persons: The constitution guarantees the fundamental rights to all persons without any discrimination.

• Importance:

  • Promotes political democracy.
  • Prevents authoritarian rule.
  • Protects individual liberties against state invasion.
  • Aims for a 'government of laws, not of men.'

• Characteristics:

  • Guaranteed and protected by Constitution.
  • Essential for all-round development (material, intellectual, moral, spiritual).
  • Originally, there were seven, later there were six Fundamental Rights.

• The 6 Fundamental Rights

  • Right to equality (Articles 14-18)
  • Right to freedom (Articles 19-22)
  • Right against exploitation (Articles 23-24)
  • Right to freedom of religion (Articles 25-28)
  • Cultural and educational rights (Articles 29-30)
  • Right to constitutional remedies (Article 32)

• Qualities of the Fundamental Rights

  • Some are available only to citizens, others to all persons (citizens/foreigners).
  • Not absolute, but qualified; state can impose reasonable restrictions.
  • Available against arbitrary state action; some also against private individuals.
  • Some are negative (limitations on the state), others positive (privileges).
  • Justiciable; enforceable through courts.
  • Defended/guaranteed by the Supreme Court.
  • Not sacrosanct; Parliament can curtail/repeal via constitutional amendment (without affecting the basic structure).
  • Can be suspended during a National Emergency (except Articles 20 and 21). Article 19 rights suspend automatically only during external emergency.
  • Scope limited by Articles 31A, 31B, 31C.
  • Application to armed forces, police, intelligence agencies can be restricted (Article 33).
  • Application can be restricted during martial law (Article 34).
  • Most are directly enforceable, but a few require laws for enforcement.

• Definition of 'State' (Article 12):

  • Government and Parliament of India.
  • State governments and legislatures.
  • All local authorities (municipalities, panchayats, etc.).
  • All other authorities (statutory/non-statutory bodies like LIC, ONGC, SAIL).

• Laws Inconsistent with Fundamental Rights (Article 13):

  • All laws violating fundamental rights are void.
  • Expressly provides for judicial review by SC/HC.
  • 'Law' includes permanent laws, temporary laws (ordinances), delegated legislation, and non-legislative sources (customs, usage).
  • Constitutional amendment can be challenged if it violates the 'basic structure' (Kesavananda Bharati case).

• Right to Equality:

  • Article 14:
    • Equality before law and equal protection of laws to all persons.
    • 'Equality before law' (British) signifies absence of special privileges and equal subjection to ordinary law.
    • 'Equal protection of laws' (American) means equal treatment under equal circumstances.
  • Rule of Law:
    • Concept from A.V. Dicey (British jurist).
    • Elements: Absence of arbitrary power, equality before law, primacy of individual rights.
    • Indian system applies first two elements; Constitution is the source of individual rights.
    • 'Rule of Law' is a basic feature.
  • Exceptions:
    • President and Governors have certain immunities (Article 361).
    • Publication of true report of parliamentary/legislative proceedings is protected (Article 361-A).
    • MP/MLA not liable for statements/votes in legislature/committees (Articles 105, 194).
    • Article 31-C overrides Article 14 in certain cases.
    • Foreign sovereigns, ambassadors, and diplomats enjoy immunity.
    • UNO and its agencies enjoy diplomatic immunity.

• Prohibition of Discrimination on Certain Grounds (Article 15):

  • State shall not discriminate against any citizen on grounds of religion, race, caste, sex or place of birth.

  • No citizen shall be subjected to any disability, liability, restriction or condition with regard to :

    • access to shops, public restaurants, hotels and places of public entertainment; or
    • the use of walls, 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.
    • Four exceptions: special provision for women and children, advancement of socially/educationally backward classes/SCs/STs, admission to educational institutions, and advancement of economically weaker sections.
    • Creamy layer" among OBCs are excluded from quota benefits.

• Equality of Opportunity in Public Employment (Article 16):

  • Equal opportunity for all citizens; no discrimination based on religion, race, caste, sex, descent, place of birth or residence.
  • Exceptions:
    • Parliament can prescribe residence requirements.
    • State can provide reservation for backward classes not adequately represented.
    • Law can provide for religious qualification for religious institutions.
    • State can make reservation in favour of any economically weaker sections.
  • Mandal Commission:
    • Second Backward Classes Commission (1979).
    • Identified 3743 castes as socially and educationally backward.
    • Recommended 27% government jobs for OBCs.

• Abolition of Untouchability (Article 17):

  • Abolishes 'untouchability' and forbids its practice. Enforcement of disability is an offense.
  • 'Untouchability' not defined; refers to historical social disabilities imposed by birth.

• Abolition of Titles (Article 18):

  • Prohibits the state from conferring any title (except a military or academic distinction) on any body.

  • Prohibits a citizen of India from accepting any title from any foreign state.

  • A foreigner cannot accept title/present from foreign state without president's consent.

  • Hereditary titles are banned.

  • National Awards (Bharat Ratna, etc.) are valid but cannot be used as prefixes/suffixes.

• Right to Freedom (Article 19):

  • Protection of Six Rights: All citizens are guaranteed the following six rights

    • Freedom of speech and expression.

    • To assemble peaceably and without arms.

    • To form associations or unions or co-operative societies.

    • To move freely throughout the territory of India.

    • To reside and settle in any part of the territory of India.

    • To practice any profession or to carry on any occupation, trade or business.

  • Restrictions: State can impose 'reasonable' restrictions on these rights.

• Protection in Respect of Conviction for Offences (Article 20):

  • No ex-post-facto law, No double jeopardy, and No self-incrimination.

• Protection of Life and Personal Liberty (Article 21):

  • No person shall be deprived of his/her life or personal liberty except according to procedure established by law.

  • Supreme Court broadened interpretation: Right to live with dignity, pollution-free environment, livelihood, privacy, shelter, health, speedy trial, etc.

• Right to Education (Article 21A):

  • State shall provide free and compulsory education to all children of the age of six to fourteen years.

  • Made education a Fundamental Right; aimed for 'Education for All'.

  • Under Article 51A reads-'It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years'

• Protection Against Arrest and Detention (Article 22):

  • Ordinary Law and Preventive Detention Law.

  • Article 22 has two parts that deals with ordinary and preventive detention.

  • Preventive detention: Detention of a person without trial.

• Right Against Exploitation:

  • Prohibition of traffic in human beings and forced labour (Article 23):
  • Prohibition of employment of children in factories, etc. (Article 24):

• Right to Freedom of Religion:

  • Freedom of Conscience: Inner freedom of an individual.
  • Right to Profess: Declaration of one's religious beliefs.
  • Right to Practice: Performance of religious activities.
  • Right to Propagate: Transmission and dissemination of one's religious beliefs.
  • Not only religious beliefs also religious practices(rituals)

• Cultural and Educational Rights (Article 29-30):

  • Protection of Interests of Minorities and Rights of Minorities to Establish and Administer Educational Institutions

• Right to Constitutional Remedies (Article 32):

  • Right to move the Supreme Court for enforcement of Fundamental Rights guaranteed.

  • Empowers the SC to issue writs: Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto.

• Martial Law and Fundamental Rights (Article 34):

  • Provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India.

• Effecting Certain Fundamental Rights (Article 35):

  • Power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures.
  • Power to make laws with respect to certain matters .

• Present Position of Right to Property:

  • 44th Amendment Act of 1978: Abolished the right to property.

• Exceptions to Fundamental Rights:

  • Saving of Laws Providing for Acquisition of Estates, etc.
  • Validation of Certain Acts and Regulations.

• Criticism of Fundamental Rights: * Excessive Limitations.

  *   No Social and Economic Rights.
  
  *   No Clarity.
  
  *   No Permanency.
  
  *   Suspension During Emergency.
  
  *   Expensive Remedy.
  
  *   Preventive Detention.
  
  *   No Consistent Philosophy.