Fundamental Rights
These are enshrined in Part III of the Indian Constitution under Articles 12 to 35.
These were borrowed from the US constitution (Bill of Rights).
According to Dr. B R Ambedkar it is the most criticized part of the Constitution.
The fundamental rights are justifiable.
In the original Constitution 7 Fundamental Rights are mentioned.
o Right to Equality (14-18)
o Right to Freedom (19-22)
o Right Against Exploitation (23-24)
o Right to Freedom of Religion (25-28)
o Cultural and Educational Rights (29-30)
o Right to property (31) (Deleted through the 44th amendment)
o Right to Constitutional Remedies (32).
In the year 1978, through 44th amendment act Right to property was deleted from the list of Fundamental Rights.
Now it is a legal right under Article 300 A in part XII of the constitution.
The numbers of Fundamental Rights are 6 in the present day Constitution.
The state can impose restrictions on Fundamental rights. (They are not absolute but qualified).
Except Fundamental rights guaranteed under Articles 20 and 21 remaining Fundamental rights can be suspended during operation of National Emergency.
Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression and not on the grounds of armed rebellion.
Article 12 explains the state.
The state includes
The government and the parliament of India
The government and the state legislature
All local authorities (municipalities, Panchayat Raj, District boards, etc)
Other statutory and non statutory authorities (LIC, ONGC etc).
The actions of the state (all the above said) can be challenged in the courts as the violation of Fundamental Rights.
Article 13:
All laws that are inconsistent with or in derogation of any of the Fundamental Rights shall be void.
This article expressively provides for the doctrine of judicial review. This power is conferred to SC (Article 32) and High Courts (Article 226) that can declare a law unconstitutional and invalid on the grounds of contravention of any of the fundamental Rights.
Note: The words ―Judicial Review‖ are not mentioned in the Constitution.
RIGHT TO EQUALITY (14-18)
Article 14:
Equality before law and equal protection of laws.
Equality before law: The absence of any special privileges in favor of any person
Note: Equality before law is taken from the British Constitution.
Equal Protection of Laws: The equality of treatment under equal circumstances.
Note: This is taken from the US Constitution.
Article 15:
Prohibition of discrimination on the grounds only of religion, race, caste, sex, or place of birth. (Access to various places).
Exceptions:
Special provisions for children and Women
Socially and economically backward sections
Scheduled castes
Scheduled Tribes
Article 16:
Equality of opportunity in matters of Public employment.
Article 16(4) empowers the state to make special provisions for the reservation of appointments or posts in favour of any ―backward class of citizens‖ which in the opinion of state are not adequately represented in the services of the state.
Article 17:
Abolition of un-touch-ability and prohibition of its practice.
Accordingly the Parliament passed Untouchability (offences) Act, 1955.
In the year 1976, this act is renamed as Civil Rights Act, 1955.
ARTICLE-18:
Abolition of titles except military and academic.
RIGHT TO FREEDOM (19-22):
ARTICLE 19: Protection of 6 rights.
Right to freedom of speech and expression 19 (1) (a)
(freedom of expression means the right to express one‘s opinion by words of mouth, writing, printing, picture, or in any other manner)
o Right to assemble peacefully and without arms
o Right to form associations
o Right to move freely throughout the territory of India
o Right to reside and settle in any part of the territory of India
o Right to practice any profession or to carry on any occupation, trade or business
o Right to acquire, hold, and dispose of property (deleted through 44th amendment)
Article 20: Protection in respect of conviction for offences.
No ex-post-facto Legislation:
No Double Jeopardy
No Self-incrimination
Article 21: Protection of life and personal liberty except in accordance with the procedures established in law.
Right to live with human dignity, decent environment, privacy, free education up to 14 years etc.
Article 21 A: Right to free and compulsory education for all the children.
Note: This was present in Article 45 of the constitution. Through 86th amendment in 2002 it was made a fundamental right. This came into force on April 1, 2010.
Article 22: Protection against arrest and detention in certain cases.
Under punitive detention: right to be informed of the grounds of arrest, consult a legal practitioner, and produce before the magistrate within 24 hours.
Under preventive detention: grounds of detention should be communicated, provide an opportunity to make representation.
RIGHT AGAINST EXPLOITATION (23-24):
Article 23: Prohibition of traffic in human beings and forced labor.
Article 24: Prohibition of employment of children in factories.
RIGHT TO FREEDOM OF RELIGION (25-28):
Article 25: All persons are equally entitled to
freedom of conscience,
the right to freely
profess
practice
And propagate religion.
Note: Propagation does not include ‗forced conversions‘.
Article 26: Freedom to Manage Religious Affairs:
To establish and maintain institutions for religious and charitable purposes
Own and acquire movable and immovable property
Right to administer the property
Article 27: Freedom for Taxation for promotion of a religion.
No person shall be compelled to pay taxes for the promotion and maintenance of any religion.
Article 28: Freedom from attending religious instruction.
No religious instruction shall be provided in any educational institute wholly maintained out of state funds.
Religious instructions permitted if it is established by endowments or trust.
Article 28(3):
No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
CULTURAL AND EDUCATIONAL RIGHTS (29-30):
Article 29: Right to conserve language, script or culture.
The Article 29 grants protection to both religious and linguistic minorities.
Article 30: Right of Minorities to Establish and administer Educational Institutions:
All Minorities have the right to establish and administer educational institutions of their choice.
RIGHT TO CONSTITUTIONAL REMEDIES (32):
The Supreme Court and High Courts can issue writs.
Right to move Supreme Court for the enforcement of Fundamental Rights including the writs of Habeas corpus, Mandamus, Prohibition, Certiorari and Quo warren to.
Under Article 359 of the constitution provides the right to move Supreme Court can be suspended during national emergency.
According B R Ambedkar Article 32 is the heart and soul of the Indian Constitution.
HABEAS CORPUS: (TO PRODUCE THE BODY).
This means produce the body.
It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. Hence this is against arbitrary detention. This can be issued to a private person or public authorities.
Mandamus: (To Command):
Issued to a public official asking him to perform his official duties that he has failed or refused to perform. (this cannot be issued against President or Governor or CJ of a HC or against any private person).
Prohibition: (to forbid):
Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
Certiorari (To be certified or to be informed):
Issued by a higher court to a lower court or tribunal either to transfer case pending with the latter to it or to squash the order of the latter in a case.
Quowarranto (By what Authority?):
It is issued by a court to enquire into the legality of claim of a person to a public office.
Article 33: The Parliament is empowered to abrogate the fundamental rights of the members of armed forces,
Para-military forces, police forces, intelligence agencies and other related agencies.
ü Note: The law made by the Parliament under Article 33 cannot be challenged in the court of law
Article 34: This provides for the restriction of the fundamental rights while martial law is in force in any area within the territory of the country.
Article 35: The Parliament makes laws to give effect to certain specified fundamental rights shall vest only in Parliament and not in the state legislature.
As per the provisions of the Article 35 the Parliament prescribes residence as a condition for certain employments or appointments in a state or union territory or local authority. (Article 16).
The Parliament can empower the lower courts (Other than Supreme Court and High Courts) to issue directions, orders, and writs of all kinds for the enforcement of the fundamental rights.
MISCELLANEOUS:
The concept of Martial Law has been borrowed from the English Common Law.
The words ―Martial law‖ is not defined in the Constitution. The literal meaning is military rule.
Martial law is imposed to restore the breakdown of law and order due to any reason.
The concept of ―Equality before law‖ is taken from UK.
The concept of ―Equal Protection of Laws‖ taken from USA.
The term ‗untouchability‘ is not defined in the constitution.
The term minority is not described in the constitution.
The writs were borrowed from English law and they are known as prerogative writs.
Right to Privacy (Article 21):
The Supreme Court in the PUCL vs Union of India in 1997, had ruled that telephone conversation in private, without interference, would come within the purview of right to privacy as mandated in the Constitution; and unlawful means of phone tapping amounted to invasion of privacy and were uncivilized and undemocratic in nature.
The Supreme Court ruled that the right to life under Article 21 of the Constitution would include a
pollution free environment.
In January 2012 the Supreme Court observed that the right to life and liberty guaranteed to a citizen
under Article 21 of the Constitution cannot be taken away without following the due procedure. The mere apprehension of the authorities that an accused was likely to be released on bail was not a ground for passing preventive detention orders.
As per the directions given by the Supreme Court, under RTE (Right To Education) Act all the Private schools will have to provide 25 percent reservation for poor students from the academic year 2012 -13.
DIRECTIVE PRICIPAL OF STATE POLICY
DIRECTIVE PRINCIPLES OF STATE POLICY (PART IV, Articles 36-51)
The Directive Principles are the needs of the community.
DPSP was borrowed from Irish Constitution.
These are the recommendations to the state in Legislative, Executive and Administrative matters. (State means Legislative and Executive organs of the Central and State governments, all local authorities and all other public authorities in the country).
In GOI (Government of India) 1935 Act ―Instruments of Instructions‖ enumerated and in the Indian Constitution they are called Directive Principles of State Policy.
DPSP embody the concept of a welfare state.
The Directive Principles are the operative part of the Constitution.
The Directive Principles of State Policy constitute a very comprehensive economic, social and political program for modern democratic state.
The idea of the principles is that realizing the high ideals of Justice, liberty, equality and Fraternity as outlined in the Preamble.
Directive Principles of State Policy are non-justifiable in nature. (They are not legally enforceable by the courts for their violation).
Article 36:
It defines the state. It has the same meaning as given in Article 12 of Part III (fundamental rights) of the Indian Constitution.
Article 37:
The Directive Principles are ―fundamentals in the governance of the country‖. It shall be the duty of the state to apply these principles in making laws.
Article 37 also contains a clause of that mentions the non-justiciability of the Directive Principles. It made it clear that the Judiciary should not compel the state to perform a duty under the directive principles of state policy.
Article 38:
The state shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of social life.
Note: Article 38 is the key stone or the core of the Directive principles.
Article 39:
The Right to adequate means of livelihood for all citizens, equal Pay for equal work for both men and women.
Article 40:
To organize Village Panchayats.
Article 41:
Right to work, Public Assistance in the event of unemployment.
Article 42:
The provision for just and humane conditions of work and maternity leave Article 43: Living wage for workers.
Article 44:
Uniform Civil Code for the whole country.
Article 45:
Provision for early childhood care and education to children below the age of 6 years.
Article 46:
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other backward classes.
Article 47:
To prohibit the consumption of intoxicating drinks and drugs. It is the duty of the state to raise the level of nutrition and the standard of living to improve public health.
Article 48:
Organization of agriculture and animal husbandry and prohibition of cow slaughter.
Article 49:
Protection of monuments, places and objects of National importance.
Article 50:
Separation of Judiciary from Executive.
Article 51:
To promote international peace and security, just and honorable between nations, respect for international law.
86th Amendment of 2002 changed the subject matter of Article 45 and also made elementary education a fundamental right under Article 21 A. (This came into effect on April 1, 2010). With this the Children between the age group of 6 and 14 are entitled for free education.
B N Rau (Constitutional advisor) recommended that the rights to be divided into justifiable and non-justifiable.
Accordingly Part III and Part IV came into the picture.
In Champakam Dorairajan case (1951) the Supreme Court ruled that in case of any conflict between Fundamental Rights and DPSP, the Fundamental rights would prevail.
In Golaknath case (1967) the Supreme Court held that Fundamental Rights cannot be amended for the implementation of DPSP.
ü In Keshavananda Bharati case (1973): The Supreme Court declared that there is no essential dichotomy between the Fundamental rights and the Directive principles. They complement and supplement each other.
42nd amendment of 1976 accorded supremacy to Directive Principles of State Policy over Fundamental rights.
In Minerva Mills (1980) case the status of Directive Principles of State Policy was made subordinate to the Fundamental rights.
MISCELLANEOUS:
DR B R AMBEDKAR: The Directive Principles are the novel feature of the Indian Constitution. The Directive Principles along with the Fundamental rights contain the Philosophy of the Constitution and is the soul of the Constitution.
DR BR AMBEDKAR: A state just awakened from freedom with its many preoccupations might be crushed under the burden unless it was free to decide the order, the time, the place and the mode of fulfilling them.
JAWAHARLAL NEHU’S STATEMENT IN 1951: The DPSP represent a dynamic move towards a certain objective. The Fundamental rights represent something static, to preserve certain rights which exist. Both are right. But, somehow and sometime it might so happen that dynamic movement and that static standstill do not quite fit into each other.
Article 38 is the key of the Directive Principles.
Dr B R Ambedkar was strongly in favor of Uniform Civil Code.
In S R Bommai vs Union of India case in 1994 the Supreme Court urged the government to enact a Uniform Civil Code to promote National Integration.
The Supreme Court (1994) stated that the Article 44 had remained a dead letter.
The Preamble, Fundamental Rights and the DPSP are the integral parts of the Indian Constitution. All the three are meant for building an egalitarian (equal) society and in the concept of socio-economic justice.
If The Fundamental Rights represent the don‘ts, the DPSP represents the Do‘s of the executive and legislature then there is conflict.
FUNDAMENTAL DUTIES
(Part IV A, Article 51 A)
1. These were added on the recommendation of Swaran Singh Committee (1976).
2. This committee recommended for the inclusion of 8 fundamental duties, the amendment included 10 fundamental duties.
3. The Fundamental Duties are borrowed from erstwhile USSR.
4. The 10 Fundamental Duties were added to the Constitution in the year 1976 through 42nd amendment.
5. The 11th Fundamental Duty was added in the year 2002 through the 86th amendment of the Indian Constitution.
THE 11 FUNDAMENTAL DUTIES:
These duties are laid down in the Article 51A.
a) To abide by the Constitution and respect its ideals and institutions, the National Flag and National Anthem
b) To cherish and follow the noble ideals which inspired our national struggle for freedom.
c) To uphold and protect the sovereignty, unity and integrity of India.
d) To defend the country and render national service when called upon so
e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women.
f) To value and preserve the rich heritage of our composite culture.
g) To protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures
h) To develop scientific temper, humanism and the spirit of inquiry and reform
i) To safeguard public property and abjure violence.
j) To strive towards excellence in all spheres of individual and collective activity, so that the nation
constantly rises to higher levels of endeavor and achievement
k) Every parent or guardian is to provide opportunities for education to his/her child or ward between the age of 6 and 14.
PREAMBLE
Preamble is the introduction to the Constitution.
This is the modified version of the ‗Objectives Resolution’ that was moved by Jawaharlal Nehru
on December 13, 1946 and adopted by the Constituent Assembly onJanuary 22, 1947.
Note: Please remember the dates.
So far Preamble has been amended only once in the year 1976 through 42nd amendment.
The42nd amendment added 3 new words to the Preamble.
SOCIALIST
SECULAR
INTEGRITY
The Constitution derives authority from the people (We the people...).
Is preamble a part of the Constitution? (Read carefully, many times there were questions from this area).
1960 – In the Berubari case the Supreme Court ruled that Preamble is not a part of Constitution.
1973 – In the Kesavananda Bharati v. State of Kerala case the Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution. The Court said that the Constitution could not be amended so as to alter the basic elements.
1995 – In LIC of India v. Consumer Education and Research centre case the Supreme Court again held that the Preamble is an integral part of the Indian Constitution.
Note: (Please remember Preamble is non-justifiable).
THE COMPONENTS OF THE PREAMBLE:
The people of India are the source of the Constitution.
The Preamble declares India to be of a
Sovereign
Socialist
Secular
Democratic
Republic
The preamble specifies the objectives of the Constitution.
Justice
Liberty
Equality
Fraternity
The date of adoption is mentioned in the Preamble is November 26, 1949.
Note: Not the date on which the constitution came into force.
The Preamble indicates the source from which the Constitution derived its authority.
The Preamble also states the objects which the Constitution seeks to establish and promote.
SOVEREIGN:
Sovereign means independent authority of a state.
This is the absolute and supreme power.
This means that India has the power to legislate on any subject.
India is not subject to the control of any external authority.
India is neither dependency nor a dominion of any other nation but an independent state.
REPUBLIC:
It means the head of the state is elected.
India has an elected President at the head for a fixed term of 5 years.
NOTE: The President is elected indirectly through the method of proportional representation by means of a single transferable vote.
Every citizen with the qualifications mentioned in the constitution is eligible to contest in the election of the President. All offices including that of the President will be open to all citizens.
SOCIALIST:
This is added through the 42nd amendment act of 1976.
The word socialism means placing means of production and distribution in the hands of public control. (state).
Socialism also means elimination of inequalities in income and status and standard of living.
In India this is the Democratic Socialism.
Here there is an existence of both Public and Private sectors. This is called mixed economy.
The socialism strives to end inequality of opportunity.
SECULAR:
The term secular was added through the 42nd amendment in the year 1976.
This means the state has no official religion.
All religions in the country have the same status and support.
DEMOCRATIC:
(Demos = People; Kratia = Rule)
Democracy means rule by the people.
The people of the country elect their own representatives.
In India it is a representative democracy.
One man one vote is the concept in democracy.
JUSTICE:
Justice is harmonizing the interests between the individuals and between the individuals and groups and the interest of the community.
This is not just confined to the legal justice.
Social justice implies that all citizens are treated equally irrespective of their status in society as a result of the accident of birth, race, caste, religion, sex, title etc.
Article 38 says that the state should strive to promote the welfare of the people.
ECONOMIC JUSTICE:
Rich and poor are treated alike.
Article 39: Certain principles of policy to be followed by the state. (equal pay for equal work)
POLITICAL JUSTICE:
Every citizen is given equal priority in the political sphere.
Because of this irrespective of propriety or educational qualifications, every citizen is allowed to participate in the political system.
All citizens have the right to participate in the political process.
Articles 325 and 326 provide for the equal rights to all adults to participate in elections.
ARTICLE 325:
No person to be ineligible for inclusion in or to claim to be included in a special, electoral rolls on grounds of religion, race, caste or sex.
ARTICLE 326:
Elections to the House of People (Lok Sabha) and to the legislative assemblies of states to be on the basis of adult franchise.
LIBERTY:
It is the Liberty of though, expression, belief, faith and worship.
Article 19 guarantees the freedom of speech, expression etc.
Articles 25 to 28 (right to religion) of the constitution the freedom of religion including the belief, faith and worship.
Note: All Fundamental Rights rights are granted with the reasonable restrictions.
EQUALITY:
All citizens are equal before the law and enjoy equal protection of the law of the land.
NOTE:
1. Equality before law – borrowed from UK
2. Equal protection of Laws – borrowed from the USA.
There can be no discrimination between one person and another on the grounds of religion, race, caste, sex,
place of birth in matters related to access to public places and public employment.
All citizens enjoy equal political rights.
Article 14 TO 18 of the Indian Constitution talks about right to equality.
FRATERNITY:
This means promoting brotherhood among all the citizens.
Single citizenship is directed towards promoting the fraternity.
The fundamental rights that are guaranteed also promote the fraternity.
The Directive Principles of State Policy talks about the promotion of harmony.
The objective of the Dignity of the individual was to improve the quality of life for the individuals.
The unity and integrity of the nation is possible through the dignity of the individual.
ARTICLE 51 A (Fundamental Duties)
makes it the duty of every citizen to uphold and protect the sovereignty, unity and integrity of India and promote harmony and brotherhood.
In our next Session we will cover the entire polity. Cover the same within 30 min and revise them more than 4-5 times so that you will save your 10-12 marks easily.
Regards
Rajesh