Fundamental Rights 2

Essential and Inalienable Rights

▸ The Fundamental Rights are deemed essential to protect the rights and liberties of the people against the encroachment of the power, delegated by them, to their government.
▸ The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They uphold the equality of all individuals, dignity of individuals, the larger public interest and unity of the nation.
▸ Fundamental Rights are regarded as fundamental because, they are 'basic laws' of a country. These are guaranteed by the Constitution and they are most essential for the attainment by the individual of his/her full intellectual, moral and spiritual status.
▸ Fundamental Rights are inalienable rights because they cannot be taken away from citizens in normal times.
▸ The concept of Fundamental Rights is inspired from the American Constitution where they are included in the Bill of Rights.
▸ Fundamental Rights include individual as well as group rights such as equality before law, freedom of speech, freedom of association etc.
▸ Only Articles 17 and 24 are the absolute rights with no restrictions. Right against discrimination [Article 15 (2)], Right against untouchability [Article 17] and Right against exploitation [Articles 23 and 24] can be enforced against the private individuals also.
▸ The objective behind the inclusion of the Fundamental Rights in the Indian Constitution is to establish 'a government of laws and not of men'.

Nature of Fundamental Rights

▸ Fundamental Rights (FRs) are not absolute rights, they are restricted rights. The Constitution itself imposes certain restrictions on the individuals in the enjoyment of the FRs and also authorises Parliament to impose reasonable restrictions.
▸ The grounds on which the FRs can be restricted, include the following :
— In the interest of sovereignty and security of India.
— In the interest of public order, morality and decency.
— In the promotion of well being of weaker sections in society including women, children, SCs, STs and OBCs.
— In maintaining friendly relationship with other foreign nations.

Definition of State (Article 12)

▸ Article 12 defines the term 'State' for the purposes of Part III because the term 'State' has been used in different provisions concerning the Fundamental Rights. According to it, the State Includes-Government and Parliament of India ; Government and Legislature of States; All local authorities and all other authorities under the control of the Government of India.
▸ Thus, all public authorities including the elected representatives, judges and judicial officials, bureaucrats, autonomous institutions, public corporations and trusts, government universities and educational bodies etc come under the definition of 'State'.

Definition of 'Laws' (Article 13)

▸ Under Article 13, all laws in force in the territory of India immediately before the commencement of this Constitution,in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.
▸ The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
▸ In this article, unless the context otherwise requires the following :
— law includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having in the territory of India, the force of law.
— laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be there in operation either at all or in particular areas.
▸ However, this caused a major obstacle for the government to bring progressive welfare legislations even if that meant infringement of Fundamental Rights. Thus, in 1971, Indira Gandhi Government, to overcome the Supreme Court judgement, brought 24th Constitutional Amendment Act and inserted the phrase 'Nothing in this article shall apply to any amendment of this Constitution made under Article 368.'
▸ The implication of this is that constitutional amendments are not deemed to be 'laws' for the purpose of Article 13, but they are even more sacrosanct.
Judicial Review and Fundamental Rights
▸ Judicial review is the power conferred on the Supreme Court and High Courts of India to declare a law unconstitutional, if it is inconsistent with any of the provisions of Part III of the Constitution, to the extent of the contravention.
▸ Article 13 provides for the judicial review of all the legislations in India, if it is in contravention with and any of the Fundamental Rights given under Part III of the Constitution.

Classification of Fundamental Rights

▸ The Constitution itself classifies the Fundamental Rights under 6 groups as follows:
(i) Right to Equality (iv) Right to Freedom (ii) Right Against Exploitation (v) Right to Freedom of Religion (iii) Cultural and Educational Rights (vi) Right to Constitutional Remedies

Right to Equality (Articles 14-18) Equality Before the Law and Equal Protection of Law (Article 14)

▸ The state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.
▸ Equality Before the Law It is a negative concept. This concept is borrowed from the British Constitution. It means 'no man is above law' and every person, whatever be his/her social status, is subject to the jurisdiction of the courts. The rule of equality before the law is, however, not an absolute rule and there are a number of exceptions to it. e.g. the President and Governors enjoy certain immunities and privileges.
▸ Equal Protection of Law It is a positive concept. This concept is borrowed from the US Constitution. It means that all persons in similar conditions/ circumstances shall be treated alike. There can be a discrimination between the groups, but not within the groups. Since, the state stands for the welfare of all sections of the society, it can make certain discriminations in favour of those who are less privileged.
Prohibition of Discrimination on Certain Grounds (Article 15)
▸ Article 15 directs the state not to discriminate against a citizen on the grounds only of race, caste, religion, sex or place of birth. The word 'only' indicates that the discrimination cannot be made merely on the ground that one belongs to a particular caste, religion, race etc. The state should provide equal opportunity for all similarly qualified and eligible candidates in any matters.
▸ The guarantee under Article 15 is available to the citizens only and not to every person as under Article 14.
▸ Article 15 (3), empowers the state to make special provisions for the protection of women and children. Article 15 (4), which was added by the 1st Constitutional Amendment Act 1951, enables the state to make special provisions for protection of the interests of the backward classes and is, therefore, an exception to Articles 15 and 29(2) of the Constitution.
▸ By 93rd Constitutional Amendment Act 2005, a new clause 15(5) has been added that provides for affirmative actions for socially and educationally backward classes in educational institutions, other than minority educational institutions.
Equality of Opportunity in Matters of Public Employment (Article 16)
▸ Article 16 states that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or residence be ineligible for or discriminated against in respect of, any employment or office under the state.
▸ The state is free to specify the qualifications. There cannot be any other ground for non-eligibility.
▸ The Supreme Court in the Indra Sawhney's Case (popularly known as Mandal Commission Case) laid down the following points, which summarise the law on the issue of reservation are as follows :
— Under Article 16 (4), reservation can be made in favour of backward classes in the matter of employment.
— Backwardness contemplated under Article 16 (4) is mainly social. It need not be both social and educational. Reservation should not exceed 50%.
— The particular class should not be adequately represented in the services under the state.
— Concept of Creamy Layer introduced income and post criteria to prevent advanced sections within the backward classes to take benefit of the Other Backward Classes (OBC) quota.
— A permanent statutory body to be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.
▸ The Constitution (81st Amendment) Act, 2000 has added a new clause (4-B) in Article 16 of the Constitution, which seeks to end the 50% limit for the SCs/STs in backlog vacancies, which could not be filled up due to the non-availability of eligible candidates of these categories in the previous years.
▸ Under Article 16, the guarantee against discrimination is limited to 'employment' and 'appointment' under the state.
▸ Equal pay for equal work, although not expressly declared to be a Fundamental Right, is clearly a constitutional goal under Articles 14, 16 and 39 (c) of the Constitution and can be enforced by the courts in the cases of unequal scales of pay based on irrational classification.
Exceptions
▸ Residence can be made as a restriction for employment on the basis of historical aspects.
▸ Special favours can be given to the backward classes, which are not adequately represented.
▸ Religion can be a ground for discrimination in special cases. There are religious institutions taken over by the state, so the religious posts are reserved for the people of the same religious denomination.
Abolition of Untouchability (Article 17)
▸ 'Untouchability' is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of 'untouchability' shall be an offence, punishable in accordance with the law.
▸ Constitution does not prescribe any punishment for the practice of untouchability, but it empower the Parliament to prescribe punishment by law. In this regard, the Parliament enacted the 'Untouchability (Offences) Act, 1955', which prescribes the punishment for the practice of untouchability. This act was amended by the 'Untouchability (Offences)' Act, 1976.
▸ Later, when there was violence against members of Scheduled Castes (SCs) and Scheduled Tribes (STs), leading to brutalities such as mass murder, rape, arson, grievous injuries etc. Enactment of a special law for their protection was resorted to known as-Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to provide for strong punitive measures, which could serve as a deterrence. However, the act does not define 'Untouchability'.
▸ According to the Supreme Court, 'untouchability' should not be understood in its literal or grammatical sense. It is to be understood as the practice as it had developed historical.
▸ Certain practices like, — preventing dalits from using public resources, including common water resources.
— preventing dalits from entering into places of worship which the ordinary people do.
— calling dalits by denigrating names and such others are included as practice of untouchability.
Abolition of Titles (Article 18)
▸ No title, not being a military or academic distinction, shall be conferred by the state.
▸ No citizen of India shall accept any title from any foreign state.
▸ No person who is not a citizen of India shall, while he holds any office of profit or trust under the state, accept without the consent of the President, any title from any foreign state.
▸ No person holding any office of profit or trust under the state shall, without the consent of the President accept any present, emolument or office of any kind from or under any foreign state.
▸ However, National Awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri do not come under the purview of Article 18 and thus, the state can accord such awards to eminent personalities. Nevertheless, the British Knighthood i.e. Sir is deemed to be a title and thus, no Indian citizen can accept it.

Right to Freedom (Articles 19-22)

▸ Personal liberty is the most important of all the Fundamental Rights. Taken together these articles from 19 to 22 on personal liberties, provides the backbone of the the Fundamental Rights.
The Six Freedom Rights (Article 19)
▸ Article 19 (I) of the Constitution guarantees to the citizens of India the following 6 freedom rights :
(i) Freedom of speech and expression. (ii) To assemble peacefully and without arms. (iii) To form associations or unions or cooperative societies. (iv) To move freely throughout the territory of India. (v) To reside and settle in any part of the territory of India. (vi) To practice any profession, or to carry on any occupation, trade or business.
▸ Right to property (it was removed by the 44th Constitutional Amendment, 1978 and transferred to Article 300 A as a legal right).
▸ Freedom of movement throughout India can be restricted. Similarly, settlements in tribal regions may not be allowed.
▸ The right to form associations, unions etc., does not give right to strike, according to a Supreme Court ruling.
▸ The Indian Constitution does not provide for the freedom of press separately. It is implicit in Article 19, which grants freedom of speech and expression.
Right Outside Part III in the Constitution
These rights are also known as Constitutional, Legal and Non-Fundamental Rights. These are as follows :
▸ Article 265 ▸ No Tax shall be levied or collected except by authority of low
▸ Article 300 ▸ A Right to Property
▸ Article 301 ▸ Freedom of Trade, Commerce and inter course
▸ Article 326 ▸ Right to Vote
Protection in Respect of Conviction for Offences (Article 20)
▸ Protection Under Article 20 is available against the following 3 types of convictions :
(i) Under Ex-post Facto Legislation 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 charged as an offence, nor be subjected to a penalty greater than that, which might have been inflicted under the law in force at the time of the commission of the offence.
(ii) Double Jeopardy No person shall be prosecuted and punished for the same offence more than once. (iii) Prohibition Against self-incrimination No person accused of any offence shall be compelled to be a witness against himself.
▸ But in case, a civil servant is dismissed on criminal charges, his dismissal does not come under double jeopardy and he could be well prosecuted further in the court.
▸ However, self-incrimination does not give the accused privilege of absolute silence. The accused is expected to co-operate to the investigating agencies by revealing certain details of evidences and information relating to crime or offence that took place. Thus, the accused cannot disallow authorities from taking his/her fingerprints, search of his/her residence etc.
▸ Under certain laws like the Unlawful Activities Prevention Act, (UAPA), the onus of proving the innocence lies on the accused rather than the prosecution proving the crime.
Protection of Life and Personal Liberty (Article 21)
▸ According to Article 21, no person shall be deprived of his/her life and personal liberty except according to the procedure established by law.
▸ Article 21 cannot be suspended during emergency.
▸ Prior to 1980's, the judiciary had only looked at the procedure established by law aspect. However, in the Maneka Gandhi Case the Supreme Court held that it is not sufficient if the procedure alone is properly followed, the judicial review even extends to whether such law can be held valid on reasonable grounds. This concept is called 'due process of law', which is borrowed from the US. It connotes that judiciary shall be the final decider on validity of laws.
▸ Over the period, this Article 21 has undergone a sea change and has become the most important Fundamental Right. The Supreme Court, through a liberal interpretation of the Article has derived a number of inferred rights. The Article 21 stands not merely for the right to life and personal liberty, but also for the right to dignity and all other attributes of human personality that are essential for the full development of a person.
▸ The Supreme Court has reaffirmed its judgement in the Maneka Gandhi Case in the subsequent cases.
It has declared the following rights as part of Article 21
— Right to Dignified Life
— Right to Free Education up to 14 years of age
— Right Against Cruel Punishment
— Right to Free Legal Aid and Right to Speedy Trial
— Right to Health of Workers
— Right Against Denial of Wages
— Right to Healthy and Livable Environment
— Right to Shelter for the Workers
— Right to Travel Abroad
— Right to Privacy
— Right to Marry the Person of One's Choice
▸ According to Article 21, use of '3rd degree' method by police is violative of Article 21. Telephone tapping is an invasion on right to privacy, hence violates Article 21.
▸ Prevention of sexual harassment of working women comes under Article 21. It is the duty of the employer or any other responsible person at workplace to prevent sexual harassment of working women. The Supreme Court in the Vishaka Case held the above ruling.
Even Animals have Rights Against Torture
The Supreme Court observed on May, 2014, that even bulls have rights against torture and it banned Jallikattu (bull fighting) and bullock cart racing in Tamil Nadu. The court also banned bullock cart racing in Maharashtra.
Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word life has been given an expended definition and any disturbance from the basic environment which includes all forms of life, including animal life… fall within the meaning of Article 21 of the Constitution.'
Right to Education (Article 21A)
▸ Under Article 21A, the state shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the state may law determine. Article 21A was inserted by the 86th Constitutional Amendment Act, 2002.
▸ The 86th Constitutional Amendement Act, 2002 also added a Fundamental Duties under Article 51A (k), to provide opportunities for education to his/her child or ward between the age of 6 to 14 years.
Protection Against Arrest and Detention in Certain Cases (Article 22)
▸ Article 22 grants protection to persons who are arrested or detained.
▸ The first part of Article 22 confers following rights on a person, who is arrested or detained under an ordinary law.
— Right to be informed on grounds of arrest.
— Right to consult and be defended by a legal practitioner.
— Right to be produced before a Magistrate within 24 hours of arrest.
▸ A person arrested under preventive detention does not avail the above rights. Instead, he is entitled to the following rights :
— Rights not to be detained beyond 3 months.
— Right to be communicated of the grounds of detention.
— Right to make a representation against the detention order.
▸ The detained/arrested person must be produced before the nearest Magistrate within 24 hours of arrest (excluding the holidays and time taken during the journey). The period of the detention cannot be extended beyond what is authorised by the Magistrate.

Right Against Exploitation (Articles 23-24)

Prohibition of Traffic in Human Beings and Forced Labour (Article 23)
▸ According to Article 23, traffic in human beings, beggar and other similar forms of forced labour are prohibited. Any contravention of this provision shall be an offence punishable in accordance with law.
▸ Traffic in human beings means selling and buying men and women like goods and includes immoral traffic in women and children for immoral and other purposes.
▸ One shall not be forced to provide labour or services against his will, even if remuneration is paid. If remuneration is less than minimum wages, it amounts to forced labour under Article 23.
Prohibition of Employment of Children in Factories etc, (Article 24)
▸ The essence of Article 24 is the prohibition of employment of children below 14 years of age in hazardous jobs. This provision is in the interest of public health and safety of the lives of children.
▸ In MC Mehta vs State of Tamil Nadu Case, the Supreme Court held that the state authorities should protect economic, social and humanitarian rights of children, working illegally in the public and private sectors. The government has passed the Child Labour (Prohibition and Regulation) Act, 1986 which seeks to eliminate child labour.
▸ In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas etc.

Right to Freedom of Religion (Articles 25-28)

▸ India is a secular state, not an atheist state. The state protects all the religions; but interferes with none. It believes in the ancient Indian doctrine of Sarva Dharma Sambhava.
Freedom of Conscience and Free Profession, Practice and Propagation of Religion (Article 25)
▸ Under Article 25, subject to public order, morality and health, all persons are equally entitled to the freedom of conscience and the right to profess, practice and propagate religion. The right to propagate does not mean alluring a person to join any religion.
▸ A Constitution Bench of the Supreme Court, in a group of related cases in 1977 called the Rev. Stainislaus. vs State of Madhya Pradesh ruled that :
— Article 25(1) does not give the right to convert, but only the right to spread the tenets of ones own religion.
▸ Freedom of Conscience Absolute inner freedom of an individual to mould his/her own relation with God or Creatures in whatever manner he/she likes.
▸ Right to Profess To declare freely and openly one's faith and belief.
▸ Right to Practice To perform the prescribed religious duties, rites and rituals and to exhibit his religious beliefs.
▸ Right to Propagate Spread and publicise his/her religious views for the edification of others. It only indicates persuasion and exposition without any element of coercion.
Freedom to Manage Religious Affairs (Article 26)
▸ The Article 26 grants freedom to manage religious affairs subject to public order, morality and health and every religious denomination or any section thereof shall have the right.
▸ To establish and maintain institutions for religious and charitable purposes. To manage its own affairs in the matters of religion.
▸ To own and acquire movable and immovable property and to administer such property in accordance with law.
Freedom as to Payment of Taxes for Promotion of any Particular Religion (Article 27)
▸ No person shall be compelled to pay any tax for religious purposes.
▸ It is Article 27 that spells out the secular character of a state. It means the state does not recognise any religion as the official religion. It regards religion as the personal affairs of the individuals and does not interfere in religious belief and faith.
Freedom from Attending Religious Instruction (Article 28)
▸ Article 28 grants freedom as to the attendance at religious instruction or religious worship in certain educational institutions.
▸ Article 28 divides educational institutions into 4 categories :
(i) Wholly maintained by the State.
(ii) Recognised by the State.
(iii) Receiving aids out of the State funds.
(iv) Administered by State, but established under a religious endowment.
▸ In the first case, there can be no religious instructions, whatsoever in the second and third case, the religious instructions can be imported, but the pupils cannot be compelled to attend such instructions. In the fourth case, there is no restriction whatsoever, as far as religious instructions are concerned.

Cultural and Educational Rights (Articles 29-30) Protection of Interests of Minorities (Article 29)

▸ Under Article 29, any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or cultural of its own shall have the right to conserve the same.
▸ 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, language or any of them.
▸ The Supreme Court has observed that the right to administration is not the right to maladministration. The university can put basic qualifications for the selection of teachers.
Right of Minorities to Establish and Administer Educational Institutions (Article 30)
▸ All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. It provides to religious, educational and cultural institutions, the right to own, possess and dispose immovable property.
▸ As per Article 15(5) inserted under the 93rd Constitutional Amendment Act of 2005, the state can reserve seats in favour of SCs, STs and OBCs candidates. For admission in educational institution whether aided or unaided out of the state funds, except the minority educational institutions. The state shall give due compensation in case of acquisition of such property.

Right to Constitutional Remedies (Article 32)

▸ Article 32 provides institutional framework for the enforcement of the Fundamental Rights by the Supreme Court.
▸ Dr BR Ambedkar called this Article as 'The fundamental of the Fundamental Rights' and 'The heart and soul of the Constitution.''
▸ To enforce the Fundamental Rights, the Supreme Court is empowered under Article 32, to issue writs of various forms. The concept of issuing writs is taken from the UK.

Writ

▸ A writ means an order. Anything that is issued under an authority is a writ. In this sense, using the power conferred by Article 32, the Supreme Court issues directions, orders or writs.
▸ Article 32 (3) confers the power to Parliament to make law empowering any court to issue these writs. But this power has not been used. Therefore, only Supreme Court under Article 32 (2) and High Courts under Article 226 can issue writs.
Forms of Writs
Habeas Corpus
▸ It literally means 'have the body' i.e. to be produced before the court.
▸ This kind of writ is issued to protect personal liberty of an individual against the arbitrary action of both the state and private individuals.The aggrieved person can even claim for compensation against such action.
Mandamus
▸ It literally means 'command'.
▸ This kind of writ is issued against a public authority or an officer and inferior courts for compelling the authority to do a particular work that it ought to do but has not done. This writ cannot be issued against the President and the Governors. Private rights cannot be enforced by the writ of the Mandamus.
Prohibition
▸ It means 'to forbid'.
▸ This kind of writ is issued by the higher courts to the lower courts or the quasi-judicial bodies when the latter exceed their judicial authority.
▸ The objective is to keep the inferior courts or the quasi-judicial bodies within the limits of their respective jurisdiction.
▸ The difference between 'Mandamus' and 'Prohibition' is that while the former can be issued against judicial as well as administrative authorities, the latter is issued only against the judicial or quasi-judicial authorities.
Certiorari
▸ It means 'to be certified'.
▸ This writ is issued to quash the order of a lower court or the decision of a tribunal in excess of its jurisdiction. The purpose of this writ is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction, it does not possess.
Quo Warranto
▸ It literally means 'by what authority or warrent'.
▸ This kind of writ is issued to ensure that the person holding a public office is qualified to hold the office.
▸ Besides the normal writs issued on violation of Fundamental Rights,there has been a progressive strengthening of the Fundamental Rights by the judiciary.
* The principle of 'Locus Standi' applies only to the writs of Mandamus, Prohibition, Certiorari. i.e. only aggrieved person is entitled to seek these writs.
Difference Between Jurisdiction of Supreme Court and High Court Regarding Writs
▸ Jurisdiction of the Supreme Court to issue writs under Article 32 is limited only to the enforcement of Fundamental Rights while the High Courts can issue them also for some other infringement of the Constitution outside the Fundamental Rights.
▸ The Supreme Courts jurisdiction to issue writs extend to the whole of the territory of India, while the High Courts are limited to the respective territory.
▸ The Supreme Courts cannot refuse to implement the Fundamental Rights or suggest any other remedy. The High Courts may or may not implement Fundamental Rights.

Suspension of Fundamental Rights

▸ The Constitution contains provisions for automatic suspension of the Fundamental Rights under certain circumstances, e.g. during the National Emergency under Article 352 (i.e. war or external aggression).
▸ Under Article 358, when National Emergency is proclaimed on the grounds of war or external aggression (and not armed rebellion), the Fundamental Rights under Article 19 are automatically suspended.
▸ The Constitution empowers the President, under Article 359 to suspend any or all the Fundamental Rights by issuing a separate proclamation during a National Emergency. The 44th Amendment Act, 1978 prohibits the suspension of Articles 20 and 21 (protection in respect of conviction for offences and protection of life and personal liberty, respectively) even during a National Emergency.

Amendability of Fundamental Rights

▸ The Supreme Court in the Shankari Prasad Case (1951), held that the Parliament can amend any of the provisions of the Constitution including Fundamental Rights by its amending power under Article 368.
▸ In the Golaknath Case (1967), the Supreme Court, however reversed its earlier position and declared that 'Fundamental Rights are transcendental' and cannot be subjected to amendment.
▸ In the Kesavananda Bharati Case (1973), the Supreme Court came up with a balanced approach and mooted a basic structure doctrine as per which Fundamental Rights can be amended by the Parliament, but without disturbing the basic structure of the Constitution.