Indian Polity notes by Laxmikant - Fundamental Rights

                                                         Fundamental Rights

PART – III: ARTICLE – (12-35)

Right is a claim to do certain things, which are recognized by the Govt. and not prohibited by law. Rights are of 2 types: moral rights, legal rights.

Moral right: right based on moral values & ethical principles of people & society.

If these moral rights are recognized by the Govt. and enforced through courts are ‘Legal Rights’.

If these legal rights are recognized in the const. with special status, they are Fundamental Rights.

-So all fundamental rights are legal rights, but not vice versa.

Fundamental Rights are fundamental because

• They are basic essential for the society.
• They are recognized by the fundamental law, the const. of India.

-Source of Fundamental Rights of America, ‘Bill of Rights'.

-Magnacarta of England is 1^st of its kind to recognizing rights.

-American const. was 1^st const. to recognize Fundamental Rights.

Features of Fundamental Rights:

• They are justifiable. (SC can be consulted if violated).
• They are guaranteed to citizens against arbitrary powers of the Govt.
• Only few rights are against people. (17, 23, 24).
•  They are not absolute in nature. (With limitation).
• Certain Fundamental Rights are also available to foreigners (14, 20, 27).
• Certain Fundamental Rights are positive and some are negative.
• Certain Fundamental Rights are non self implementable. Their implementation depends on supportive legislation by the parliament.
• Certain Fundamental Rights are limitedly available to certain people.

Ex: Police, Armed forces, convicts. Moreover certain rights are equally available all the times of the day.

Classification of Fundamental Rights

Originally there were 7 Fundamental Rights, but 6 are currently present.

• Right to Equality – Articles (14 – 18)
• Right to Freedom – Articles (19 – 22)
• Right against Exploitation – Articles (23 -24)
• Right to Religion – Articles (25 – 28)
• Cultural & Educational Rights – Articles (29 -30)
• Right to Property – Article (31)
• Right to Constitutional Remedies – Article (32)

- Right to property deleted from Fundamental Rights in 1978, 44^th amendment along with article 19 (1) (f). It has been transposed, (changed the serial order), put into part -12, and article 300A as legal (Const.) right.

Article – 12: Definition of a state.

State includes central, state, local, Govt., UTs, boards, universities, corporations, agencies. Even judiciary comes under the definition of state. However cooperative societies do not come under state.

Article – 13: Definition of Law

 Any law which is against FR is declared null & void, unconstitutional; by SC. This power of SC is called Judicial Review. However the word judicial review is not mentioned in articles – 13.

·         Power of judicial review is direct (explicit).

Null & void: It is null & void.

Law includes any act of the parliament or state legislature, ordinance of governor, president, notification of Govt., Ads of Govt., even the conventions & customs of the people recog. by Govt.

·         However const. amendment under act 368 is not a law under article – 13.

Article – (14 – 18): Right to Equality

Article – 14: Equality before law, equal protection of law, equal before law, similar to rule of law taken from England. So, equality before law implies a negative affirmation that there is only one law in the country & all are subjected to that law.

• They are equally held accountable for omissions & commissions – irrespective of their statues & ranks.
• Not applicable to president, governor i.e. no criminal case can be implemented as long as they are in power. Civil cases can be filed, 2 months prior with notice.
• This exemption is given to highness of offices.

Equal protection of law: (taken from America)

Like should be treated as a like or the equals should be treated as equal in equal circumstances & unequals should be treated unequally in unequal circumstances. This implies, protection, positive discrimination.

Article 14 says – there is no class legislature but people are classified while applying the law.

-          Has also creamy layer.

Article – 15: State shall not discriminate any individual only on the basis of race, religion, caste, sex, place of birth. All the places of public utility must be equal to all without any discrimination.

·         However Govt. may exempt / provide special protection which do not violate article – 15.

Article – 16: In the matters of public employment, citizens should not be discriminated only on the basis of race, religion, caste, sex, place of birth, descent, residence.

·         However, discrimination on age, education qualifications, physical fitness, certain Govt. offices, where only particular religious people are eligible.

Article -17: Untouchability declared as crime enforced accordingly to law made by the parliament.

• Hence parliament made prohibition of untouchability act of 1955.
• Amended & renamed as protection of civil rights, 1976.
• Prevention of atrocities against SC, ST, 1989.
• Term untouchability is not mentioned in const.

-There are 2 types of untouchables - social, medical.

Article – 18: prohibition of all kinds of titles, which indicate special status of a person.

However civilian, gallantry awards can be conferred.

Ex: bharat Ratna, padma Vibhushan, Padma Bhushan, Padma Sri.

Academic & literary distinction like Gnanapeet, Vidvan, doctorates.

Raghupati Venkayya – highest AP film award

Dada sahib fallkai – highest country film award

Military awards like paramveer, ashok, suryachakra

Article 19 -22: Right to personal / partic. Freedom. These rights are available in the form of freedom.

Article 19: Guarantees 7 (prev) now 6 freedom

(E)       19 (1) (a): freedom of speech, expression

(E)       19 (1) (b): freedom of assemble without armed

(E)       19 (1) (c): freedom of form union, association

(E)       19 (1) (d): freedom of move

(E)       19 (1) (e): freedom of reside, settle

(E)       19 (1) (f): freedom of acquire property

(E)       19 (1) (g): freedom of take up any professional trade, employment.

NOTE: Explicit (E): no Quarrel, Implicit: Quarrel / dispute

-Freedom of expression includes expression of views of others. It is possible through print / electronic media. So, freedom of press is implicit in art: 19.

-Freedom of expression also includes commercial talks. Expression also includes silence.

-SC in Kush boo case, 2010 -11 held that men, women living together without marriage are not a crime under IPC section 377. (Living relation).

-According to Delhi HC, same sex living is not crime.

Restriction on Speech & Expression:

-Public decency, morality, obscenity, Public order, security, maintaining healthy relations among people & countries.

-Contempt of the court.

These limitations are not applicable to the discussions in parliament & state legislature.

·         Similarly for other freedoms.

·         Unions which are unethical are not allowed.

·         Armed forces & police can’t have unions.

·         Movements & residence at defense, govt. installations etc., can’t be allowed.

·         Settlement in agency areas, J & K is not allowed.

·         Certain professions need qualifications, licenses. Unethical professions like devadasi, jogini, etc., are also restricted.

-In 2007 visakha state of RJ, SC held that, sexual harassment in profession (work place) is violation of art 14, 16, 19, 23.

Article – 20: Protection of personal liberty.

·         No person shall be punished or prosecuted except for the violation of law.

·         The act or crime committed by the person must be a crime, at the time of commission only.

·         Criminal laws will have prospective effect, but not the retrospective effect.

·         a) This act is known as Ex- post Facto legislation. ‘From & after; not before’

·         However civil laws may have prospective or retrospective effects.

·         No greater punishment shall be given than which might have been in implicated on the person at the time of commission of crime.

·         However lesser punishment can be given. This is called ‘Doctrine of Beneficial construction’.

·         b) No self incrimination: It means, no person shall be forced / compelled to the witnessed against himself.

·         Sometimes, belonging of the person can be taken as witness.

·         c) No person shall be punished more than once for the same crime called ‘NO Double Jeopardy’.

·         Sometimes double punishment is allowed.

Article – 21: Life & liberty of a person shall not be dep--eved except according to the procedure Estb. by law.

• This article do not protect against legislature or procedural wrong, but against only executive laws.
• In 1978, in Maneka Gandhi case, SC held that the procedure must be good, fair, and just & must be due.
• SC employed due process of law from America const. thus SC expanded the scope of art – 21, specially the meaning of life.
• SC said that life is not merely having metabolism, it is life with dignity. Dignity comes with education.
• Hence education is a fundamental right, in 1992, Mokinigiri vs state of KA, unnikrishnan vs state of AP.

-Child ≤ 14 yrs of age, not going to school is considered to be child labour.

Agriculture has most child labour.

Articles – 25 -28: right to religious freedom.

Article – 25: Every citizen accordingly to their conscience or will can profess, preach, practice and propagate religion of their choices.

·         However propagation includes conversions, but conversion is not a fundamental right.

Article – 26: Estb. Of religious institutions & their management.

·         However Govt. can regulate the rights of the trust if it is involved in unlawful activities.

Article – 27: No tax shall be levied on the people only on the basis of religion.

·         However fee can be collected on the basis of religion; which is optional.

Ex: Darshan ticket.

Article – 28: No particular religious teachings shall be given in Govt. / pvt. Aided institutions.

·         In 1986, National Anthem case (Bijo Emanuel vs. state of Kerala), SC held that, singing of national anthem is not compulsory, if it’s against religious faith of people.

·         In 2007, National song case, Vandemataram case.

·         Sarala Mudgal case, related to religious faith, conversions & uniform civil code. (Group of laws code).

Article – 29 -30: Cultural & educational rights.

·         They are also known as Rights for minorities.

·         Though the word minority is mentioned in the const. it is not defined.

·         They are 2 types of minorities they are: Religious minorities and linguistic minorities.

·         Except Hindu’s all are minorities but Sikh, Jainism, Buddhism are also under Hindus. They are also considered minorities.

·         In AP, those with non-telugu mother tongue are minorities.

Article – 29: NO person shall be denied admission into educational institutions only on the basis of religious.

·         No culture other than their own shall be imposed on the people.

Article – 30: Minorities should be allowed to Est. Separate educational institutions in order to protect, preserve & promote their culture language & script.

·         They are nothing but minority schools & colleges.

·         In Deccan medical college vs state of AP2006, SC held that, the term minority should be defined.

Article – 32: Right to const. remedies.

• It is the most important of the fundamental rights.
• This right guarantees the implementation & protection of other fundamental rights.
• If any Fundamental Right is violated, the aggrieved citizen can directly move to SC and can seek extra ordinary remedy; i.e. const. remedy, in the form of writs.
• Dr B.R Ambedkar opined this article is the Heart & soul of the const.
• Generally preamble is Heart & soul.
• According to Ambedkar, article – 32 is Heart & soul.
• SC issues certain writs under article – 32. HC issue writs under Article 226.
• Even district courts can also issue writs under article – 32 provided parliament makes a law & empowers them.

Differences between articles - 32, 226:

·         SC issues writs only for the protection of FR.      ·         Writ issued by SC is applicable to all persons, institutions in India.

HC issue writs for protection of FR, legal rights too, in certain special circumstances.           So HC has liberal jurisdiction of writs.       Writ jurisdiction is confined to territorial limits of the state.

•      Writ can be demanded as rights, under article – 32.
•        Hence art -32 provides both right & remedy. It is a ‘Remedial right’.
•       In HC under art – 226, it can’t be demanded as right, as art-226 is outside. Part – III.
•        SC enjoys 1° jurisdiction, in the issuing of rights.
•        Constitutional Remedies also available for non citizens.

Various Writs:

1. Habeas corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto

1. Habeas Corpus: means, ‘To have the body’. Dead or alive. It is the order or direction by ST asking the police to produce the body of the person, who was under arrest; ST court examines the legality of the arrest.

So, the purpose of this writ is to protect personal freedom, guaranteed in art-(19-22). This writ can be filed by any 3^rd person also. Even a postcard/media reports can be considered as writ petitions.

Suo-motu: self (by court itself)

• This is considered as boon for personal liberties. It is also applicable for missing cases.
• However this writ is not applicable to preventive detention acts.

2. Mandamus: literally means ‘to command/ order'

• It is the writ issued by SC/HC to Govt. authorities directing them to do their legal duties properly & effective, if they are not discharging their duties.
• The purpose of this writ is to get the things done by them.
• However, this writ is issued as an ultimate alternative remedy, not as remedy @ initial course.
• Moreover, this writ cannot be issued against president, Govt., private individuals & institutions, if they are not doing their legal duties.
• This writ can be issued against public, quasi-public, judicial & quasi-judicial bodies.
• Generally mandamus commands actions, sometimes in-actions too.

3. Prohibition: It means ‘not to proceed’. It is the writ issued by HC to the lower courts, not to proceed on the case since the lower court is exceeding its limits.

•        The purpose of this writ is to contain the lower courts if they exceed their limits.
•        Prohibition writ is issued only against judicial & quasi-judicial bodies.

4. Certiorary: It means ‘superior’ to certify, to bring the records.

• This writ is issued by HC to lower courts, quashing the judgment of the lower court, directing the lower court to transfer the case to higher court.
• It is also issued against judicial quasi-judicial bodies.
• Purpose of prohibition & certiorary is to contain the lower court if they exceed their limit.
• There is different procedure. Prohibition is available at beginning of the case. Certiorary at the end.
• Prohibition is preventive in nature, certiorary is curative.

5. Quo-Warranto: means, ‘by what authority’. It is issued by S.C/H.C directing the holder of the public office, to prove his legality in holding such office.

• If violated, court directs him to vacate the office immediately, as he has no legality.
• Purpose: it is to protect public office from wrong entry as well as misuse. Any misuse, the court can issue this writ.

Article – 33: Parliament can impose limitations on the availability of rights to certain people like armed forces, police personal intelligence & security forces.

Article – 34: Parliament of India can protect the actions of armed forces, police personnel which are done in connection with security of India & law & order.

Article – 35: Parliament of India can legislate on the matters of 7, 23, 24 and it can prescribe the punishment for the crime mentioned in part – III.

NOTE: Any office which is elected by people directly/ indirectly is public office.

The Fundamental Duties:  Part – IV Article – 51A

• They were not originally present in the constitution but were inserted in 1976 by 42^nd Amend act.
• They were recommended by Swarna Singh committee. Swarna Singh committee was appointed by MIG; to review is recommend, possible amendments, to const.
• This committee also recommended shifting of parliamentary system – Presidential system.
• They were taken from Russian const. originally 10 Fundamental duties, but in 2002, 86^th Amend. New duty the duty of Parent/ guardian to provide educational facilities (1° edu. Facilities) to their wards between 6-14 yrs of age. 
• Duty is a work done for others. There are certain basic minimum essential obligations towards the country, people.
• These are also recognized in the fundamental law and hence they are called fundamental duties.

Fundamental duties:

• To abide by the const. & respect its ideals and Institutions, National flag & National Anthem.
• To cherish and follow the noble ideals, which inspired our national struggle for freedom.
• To uphold & protect the sovereignty, unity integrity of India.
• To defend the country & render National services when called upon to do so.
• To promote harmony & the spirit of common brotherhood among all people of India, transcending religious, regional, linguistic, sectional diversities. To renounce the practice derogatory to the dignity of women.
• To value & preserve the rich heritage of our composite culture.
• To protect & improve the natural environment, including forests, lakes, river & wildlife; and to have compassion for living beings.
• To develop scientific temper, humanism, spirit of inquiry & reform.
• To safe guard public property & abjure violence.
• To strive towards excellence in all spheres of individual & collective activities.
• Providing 1° educational facilities to 6-14 yrs age group children. 

-  Fundamental duties are non – justifiable. If they are not followed, they are not subjected to punishment.

-  Fundamental Duties, Fundamental Rights are complementary to each other. One promotes another.

-  Rights without duties lead to irresponsibility.

-  Only duties without rights result in slavery.

-  Rights & duties are 2 sides of the same coin. These are inseparable.