6. Fundamental Rights

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indian polity study materials 06

FUNDAMENTAL RIGHTS (PART-III) (ARTICLE 12-35) :

 

No CATEGORY CONSISTS OF

 

1  Right to equality (Articles 14 – 18) a)             Equality before law and equal protection of laws (Article 14)

b)             Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15)

c)             Equality of opportunity in matters of public employment (Article 16)

d)             Abolition of untouchability and prohibition of its practice (Article 17)

Abolition of titles except military and academic

(Article 18)

           2 Right to freedom (Articles 19 – 22) a)             Protection of six rights in respect of :

i) Speech, ii) assembly, iii) association, iv) movement,                 v) residence and vi) profession (Article 19)

b)             Protection in respect of conviction for offences (Article 20)

c)             Protection of life and personal liberty (Article 21)

d)             Right to elementary education                      (Article 21 A)

e)             Protection against arrest and detention in certain cases (Article 22)

 

3 Right against exploitation (Article 23 – 24) a)             Prohibition of traffic in human beings and Forced labour (Article 23)

b)             Prohibition of employment of children in factories, etc. (Article 24)

 

4 Right to freedom of religion (Article 25 – 28) a)              freedom of conscience and free profession, practice and propagation of religion (Article 25)

b)             Freedom to manage religious affairs (Article 26)

c)              Freedom from payment of taxes for promotion of any religion (Article 27)

d)             Freedom from attending religious instruction or worship uncertain educational institutions (Article 28)

 

5 Cultural and educational rights (Articles 29 – 30)

 

a)             Protection of language, script and culture of minorities (Article 29)

b)             Right of minorities to establish and administer educational institutions (Article 30)

 

6. Right to constitutional remedies (Article 32) Right to move the Supreme Court for the enforcemental rights including the writs of

i)                     Habeas corpus,

ii)                   Mandamus

iii)               Prohibition

iv)               Certiorari and

v)               Quo warranto (Article 32)

 

 

 

Article 14:

Statements: Equality before Law

  • The doctrine of equality before am is a necessary corollary to the concept of the rule of law
  • It permits rational or discriminating discrimination

Example:

  •  Conferment of special benefits or protection or rights to a particular group of citizens for rational reasons is envisaged under article 14.
  • Immunities provided by Article 14 for some exceptional cases however does not cover
  1. Impeachment proceedings against the president
  2. Proceedings against central/state government

Statements: Equal Protection of Laws

  • It prohibits class legislation
  • It does not prohibit classification for the purpose of legislation
  • The legislature is competent to exercise its discretion and make classification

Example: State has wide discretion in respect of classification for the purpose of taxation

  • But Art 14 hits arbitrariness of state retion in any form
  • The court will not interfere until the state’s retion goes arbitrary or discriminatory Reservation to SC/ST is a protective discrimination to insure social and economic justice

Article 15:

  • Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Exceptions:

  •  Special provisions for women and children are envisaged Also the same with SC/ST and backward classes
  • In an offence of relutory women is not punishable considering the view of existing scenario
  • Article 15 envisages protective discrimination
  • Reservations for specialties/super specialties in PG and doctoral courses in medicine
  • According to Art 15 state can make special provision for SC, ST, OBC regarding admission to educational institutions.

Article: 16

 

  • Equality of opportunity in matters of public employment The term “employment” includes
  • Initial appointment Promotion
  • Termination of services

Exceptions

  • According to 16 residence within the state may be laid down as a condition
  • Article 16: Reservation for SC/ST, backward classes ports. It is to be read along with article 335 to ensure that it is consistent with the maintenance of efficiency of administration
  • Article 16: Offices consulted with religious denominations reserved for people belonging those particular religions / denominations
  • Reservations made beyond the legitimate limits could be challenged as a fraud

Article: 17

 Abolition of Untouchbility

  •  The practice of untouchability is one of the crudest manifestations of inequality. This has been abolished under the right to equality.
  • The same right also provides that the state shall confer no title on a person except those who excel themselves in military or academic field.
  • Thus right to equality strives to make India a true democracy by ensuring a sense of eqality of dignity and status among all its citizens.

Article: 18

  •  Ban operates only against state but not public institutions such as university to confer titles or honours.
  • State may confer any distinction or award which cannot be used as a title. State may award military or academic distinctions which may be used as titles.
  • Non-military awards in recognition of merit does not violate Article 16 or Article 18 unless they are not used as titles. State may confer any distinction or award which cannot be used as a title.
  • In 1954, GOI introduced Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma shri.
  • It was justified by the argument that it enables to indicate the rank of different dignitaries and high officials of the state in the interests of discipline in the administration.

 Example:

  •  Bharat  Ratna holders have been assigned the 9 th place in the Warrant of precedence just below the union cabinet ministers

Article: 19

 The six freedoms

  •  Rights guaranteed by article 19 are positive rights
  • In a welfare state, where collective interests were concerned individual liberty must yield to the common food.
  • 19(1)(a)-19(1)(c) – confer power on the state to impose reasonable restrictions on the fundamental rights in the interests of sovereignty and integrity of India
  • Court has got to determine whether it is reasonable or not.
  • Constitution 1st Amendment Act 1951 inserted the word reasonable in the (2) of Article 19.
  • According to Article 19 (1) the – 19 (1)(I) – state may impose reasonable restrictions in the interests of general public / ST.
  • Article 19 (1)(g) – state make law relating to professional / technical qualification necessary for practicing any occupation.
  • According to Article 19 (1)(c) the right to become or continue being a member of the society is a statutory right but not a fundamental right.
  • Running an educational institution must be regarded as an occupation though there is no profit generation.
  • The measure of the freedom of the press is the same as that of an ordinary citizen To check the reasonableness of restrictions
  • DPSP to be taken into the account
  • Substantive measures: Must not go in excess of the collective object which was intended to achieve
  • Procedural measures: An opportunity to be heard must be given.

Article-20

 Protection in respect of conviction for offences

  • (1) of Article 20: Legislature shall not be competent to make criminal law retrospective
  • (2) of Article 20: Prohibits double jeopardy for the same

Exceptions:

  •  Immunity is only against the proceedings before a court of law or judicial tribunal not against the departmental proceedings
  • Offences under 2 sections being distinct from each other does not amount to double jeopardy
  • (3) of Article 20: Community from self incrimination
  • Self evidence must be in the nature of communication
  • Immunity does not extend to civil proceedings or other than criminal proceedings

Article-21

  •  It is a safeguard against arbitrary legislation
  • Covering a variety of rights of which some have been included in Article-19.
  • Once the test of reasonableness is imported to determine the validity of a law depriving a person of his liberty, it follows that such law shall be invalid if it violates the principles of natural justice.
  • It would include the right to live with human dignity Supreme court’s interpretation of Article 21
  • Right not be subjected to bonded labour and to be rehabilitated after release Right to livelihood
  • Right to decent environment
  • Right to appropriate life insurance policy Right to good health
  • Right to food, water, education (not professional or special), medical care and shelter Prisoner’s right to have necessities of life
  • Right to speedy, fair and open trial
  • Right of women to be treated with decency and dignity Right of prively
  • Right to good road
  • Right against solitary confinement
  • Right against for felters and handenffing Right to legal acid
  • Right against deleyed excention Right against enstodial violence Right against public hanging
  • Right to health and medical aid of workers Right to doctor’s assistance
  • Right to social justice and economic empowerment Right to freedom from noise pollution
  • Right to reputation
  • Right to family pension (release) Right of decent burial or cremation Right to information
  •  Right to healing
  • Right to appeal from judgement of conviction

Article 22

 ARTICLE 22 HAS TWO PARTS :

  • The first part consists of Clauses (1)and (2) those clauses apply to all Arrests made under any law except under a law of preventive detention. The rights flowing from this Article in case of ordinary arrests are
  • Right to be informed of the ground of arrest Right to consult and be defended by a lawyer
  • Right to be produced before a magistrate within 24 hours of his arrest(excluding the time of journey)
  • Right not to be detained for more than 24 hours without the authority of a magistrate The above rights are not available to
  • anomaly alien and
  • a person detained under a law ofpreventive detention
  • The second part of art.22 comprising of clauses (4) and(5) provide safeguards to detunes under a law for preventive detention. It is noteworthy that these safeguards are available even to enemy aliens.
  • Preventive detention is the detention of a person where the evidence against him is not sufficient for his
  • Conviction by a court but is sufficient to justify his detention for reasons of defence foreign punishes a person for something done by him. Preventive detention prevents a person from doing something.
  • Preventive detention is a pre caution taken by the executive. its justify-action is reasonable suspicion or probability

Article 23

Right against exploitation

  • It is as an adjunet to article 21 and article 15
  • The net of compelling a person to under gratuitous service where he was lawfully entitled either not to work or to receive remuneration for it is prohibited
  • It does not prohibit forced labour as a punishment for a criminal offence But state may impose compulsory recruitment for military, social services
  • It is beneficial to the cause of liberty because these laws can be challenged on the ground of contravention of the safeguards laid down in article 22

Article 24

  • Prohibition imposed by this article is obsolute.
  • Supreme Court directed that positive steps should be taken for the welfare of such children as well as improving the quality of their life.

Article 25

  •  The Court has the right to determine whether a particular site or observance is regarded as essential by the tenets of a particular religion and to interfere if a particular practice offends against public health or morality.
  • Interpretation of ‘Secularism’ by Supreme Court 
  • It does not mean that state should be hostile to the religion but it should be neutral as between the different religions.
  • It cannot be contended that if a person is a devout flinda or a devour Muslim he cased to be secular.
  • The use of word ‘secular’ in the preamble would not override the enacted provision in Article 25-30 article 357
  • Preference of Sanskrit in the academic syllabus as an elective while not conceding this status to Arabic or Persian would not militate against the lassie tenants of seemlerism.
  • Article 356 prevents the state government from mixing politics with religion.

Right to Convert:

  • Article 25 (1) does not include the right to convert by means of force, fraud, inducement of allurement.

Fundamental Rights exclusive to the Citizens:

  1. Art 15 : Prohibition of discrimination only on grounds of religion, race, caste, sex or place of
  2. Art 16 : Equality of opportunity in matters of public
  3. Art 19 : Protection of certain rights, regarding freedom of speech
  4. Art 30 : Right of the minorities to establish and administer the educational institutions.

Fundamental Rights available to any person on the soil of India (except to the enemy Aliens):

  1. Art 14 : Equality before law and equal protection of
  2. Art 20 : Protection in respect of conviction for
  3. Art 21: Protection of life and personal
  4. Art 23: Prohibition of traffic in human beings and forced
  5. Art 25 : Freedom of religion
  6. Art 27 : Freedom as to payment of taxes for promotion of any particular

Writs:

  • The Supreme Court (under Article 32) and the High Court’s (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo- warranto.
  • Article 226 now empowers all the High Courts to issue the writs.
  • The Writ Jurisdiction of the Supreme Court differs from that of a High Court in three respects:
  1. The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a High Court can issue writs not only for the enforcement of Fundamental Rights but also for any other The expression ‘for any other purpose’ refers to the enforcement of an ordinary legal right. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of High Court.
  2. The Supreme Court can issue writs against a person or government throughout the territory of India whereas a High Court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction. Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a High Court.
  3. A remedy under Article 32 is in itself a Fundamental Rights and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a High Court may refuse to exercise its writ Article 32 does not merely confer power on the Supreme Court as Article 226 does on a High Court to issue writs for the enforcement of fundamental rights or other rights as part of its general jurisdiction. The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights.

Habeas Corpus:

  • The words ‘Habeas Corpus’ literally mean ‘ to have a body of’.
  • The Writ may be addressed to any person whatever, an official or a private person who has another person in his custody and disobedience to the writ is met with punishment for contempt of Court.
  • The writ of Habeas Corpus is thus a very powerful safeguard to the subject against arbitrary acts not only of private individuals but also of the executive.
  • The different purposes for which the writ of habeas corpus is available may, accordingly, be stated as follows:
  • For the enforcement of fundamental rights.
  • It will also issue where the order of imprisonment or detention is ultravires the statute which authorizes the imprisonment or detention.

The writ of habeas corpus is, however, not issued in the following cases :

  •  Where the person against whom the writ is issued or the person who is detained is not within the jurisdiction of the Court.
  • To secure the release of a person who has been imprisoned by Court of law on a criminal charge.
  • To interfere with a proceeding for contempt by a Court of record or by Parliament.

MANDAMUS:

  • Mandamus literally means a Command.
  • It demands some activity on the part of the body or person to whom it is addressed. It commands the person to whom it is addressed to perform some Public or Quasi– Public legal duty which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy.
  • It is a discretionary remedy and the High Court may refuse to grant mandamus where there is an alternative remedy for redress of the injury complained of.
  • Mandamus will lie not only against officers and other persons who are bound to do a public duty but also against the Government itself for, Article 226 and 361 provided that appropriate proceedings may be brought against the Government concerned.

The purposes for which a writ may be issued may now be analysed as follows :

  • For the enforcement of fundamental
  • Apart from the enforcement of fundamental rights, mandamus is available from a High Court for various other purposes, g.,
  • To enforce the performance of a statutory duty where a public officer has got a power conferred by the constitution or a The Court may issue a mandamus directing him to exercise the power in case he refuses to do it
  • The writ will also lie to compel any person to perform his public duty where the duty is imposed by the Constitution or a statute or statutory
  • To compel a Court or judicial tribunal to exercise its jurisdiction when it has refused to exercise it.
  • To direct a public official or the Government not to enforce a law which is unconstitutional.

The writ of Mandamus cannot be issued: 

  1. against a private individual or body;
  2. To enforce departmental instruction that does not possess statutory force;
  3. When the duty is discretionary and not mandatory;
  4. To enforce a contractual obligation
  5. Against the President of India or the State Governors; and
  6. Against the Chief Justice of a High Court acting in judicial

PROHIBITION:

  • The writ of prohibition is a writ issued by the Supreme Court or a High Court to an inferior court forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which it is not legally vested.
  • The object of the writ is to compel inferior courts to keep themselves within the limits of their jurisdiction.
  • The writ of prohibition differs from the writ of mandamus in that while mandamus commands activity, prohibition commands inactivity.
  • Prohibition as well as certiorari are issued only against judicial or quasi-judicial authorities.
  • Prohibition and Certiorari are both issued against Courts or Tribunals exercising judicial or quasi-judicial powers, Certiorari is issued to quash the order or decision of the tribunal while prohibition is issued to prohibit the tribunal from making the ultravires order or decision.
  • While prohibition is available during the pendency of the proceedings and before the order is made, certiorari can be issued only after the order has been made.
  • While Prohibition is available at an earlier stage, Certiorari is available at a later stage, on similar grounds.

CERTIORARI:

The Conditions necessary for the issue of the writ of certiorari are

  1. There should be a tribunal or officer having legal authority to determine questions affecting rights of subjects and having a duty to act
  2. Such tribunal or officer must have acted without jurisdiction or in excess of the legal authority vested in such quasi-judicial authority, or in contravention of the rules of natural justice or their is an ‘error apparent on the face of its record’.

                  A tribunal may be said to act without jurisdiction in any of the following                      circumstances-

  1. Where the Court is not properly constituted, that is to say, where persons who are not qualified to sit on the tribunal have sat on it and pronounced the decision complained against.
  2. Where the subject-matter of enquiry is beyond the scope of the tribunal according to the law which created
  3. Where the Court has assumed a jurisdiction on the basis of a wrong decision of facts upon the existence of which the jurisdiction of the tribunal
  4. Where there has been a failure of justice either because the tribunal has violated the principles of natural justice or because its decision has been obtained by fraud, collusion or

                When the decision of an inferior tribunal is vitiated by an error ‘apparent                    on the face of the record’, it is liable to be quashed by Certiorari, even                        though the Court may have acted within its jurisdiction.

QUO WARRANTO:

  • Quo Warranto is a proceeding whereby the Court enquires into the legality of the claim which a party asserts to a public office, and to oust him from its enjoyment if the claim be not well founded.
  • The conditions necessary for the issue of a writ of quo warranto are as follows:

   1. The office must be public and it must be created by a statute or by the                      constitution itself.

   2. The office must be a substantive one and not merely the function or                         employment of a servant at the will and during the pleasure of another.

   3. There has been a contravention of the Constitution or a statute or                             statutory instrument , in appointing such person to that office.

  • It is, however, a discretionary remedy which the Court may grant or refuse according to the facts and circumstances of each case.
  • Quo Warranto is thus a very powerful instrument for safeguarding against the usurpation of public offices.

Difference between the Writ Jurisdiction of the Supreme Court and the High Court: 

  1. The Supreme Court issues the writ (under Art 32) only in cases of the violation of the Fundamental Rights, whereas the High Courts (under Art, 226) can issue the writs not only for the enforcement of the fundamental Rights but also for redressal of any other injury or illegality, provided certain conditions are
  • Thus in a way, the writ jurisdiction of the High Court is wider than the Supreme Court.
  1. Art 32 imposes on the Supreme Court a duty to issue the writs, whereas no such duty is imposed on the High Court by 226.
  2. The jurisdiction of the Supreme Court extends all over the country, whereas that of the High Court only to the territorial confines of the particular states and the Union Territory to which its jurisdiction

Rights outside Part III 

  1. Art 300 A : No person shall be deprived of his property, except by authority of
  2. Art 301 : Freedom of trade, commerce and intercourse – subject to other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.
  3. Art 326 : Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult

 

 

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