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Fundamental Rights: India’s Pillars of Democracy

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ESSENTIAL FUNDAMENTAL RIGHTS: INDIA’S PILLARS OF DEMOCRACY

  • Article: 12-35 of Part III of constitution.
  • Inspired from Constitution of USA (Bill of Rights) + Fundamental Rights for all round development: Material, intellectual, moral and spiritual + Magna carta of india + Justiciable + Guaranteed to all subjected to reasonable restriction + Ideal of political democracy + Limitations on the tyranny of the executive and arbitrary of laws of legislature + Harmony between FR and DPSP is part of basic structure of the constitution.

INITIALLY, SEVEN FUNDAMENTAL RIGHTS: GUARANTEES FOR EQUALITY, FREEDOM, AND JUSTICE IN INDIA

  • Right to Equality (Article 14-18)
  • Right to Freedom (Article 19-22)
  • Right against Exploitation (Article 23-24)
  • Right to Freedom of religion (Article 25-28)
  • Cultural and Educational right (Articles 29-30)
  • Right to Property (Article 31) → now Article 300A - 44th Amendment Act, 1978 (Legal Right)
  • Right to Constitutional Remedies (Article 32)

At present only 6 Fundamental Rights – Right to Property (moved).

FEATURES OF FUNDAMENTAL RIGHTS: LIMITS, AMENDMENTS, AND PROTECTIONS

  • Citizen Specific: Some are available only to Indian citizens, namely Article 15, Article 16, Article 19, Article 29, and Article 30.
  • Qualified Nature: They are not absolute but qualified. The State can impose reasonable restrictions on them.
  • Protection against State: All are available against the arbitrary action of the State.
  • Character: Some rights are negative in character (placing limitations on the State), while some are positive (conferring privileges on persons).
  • Amendability: They are not sacrosanct or permanent. Parliament can curtail or repeal them through a constitutional amendment.
  • Suspension during Emergency: They can be suspended during a National Emergency (Art. 352), except the rights guaranteed by Articles 20 and 21.
  • Article 19 Suspension: Can be suspended only on grounds of war or external aggression (External Emergency) and not on grounds of armed rebellion (Internal Emergency).
  • Limited Scope: Their operation is limited by Art. 31A (acquisition of estates), Art. 31B (validation of acts in the 9th Schedule), and Art. 31C (laws giving effect to certain directive principles).
  • Martial Law: Rights can be restricted while martial law (military rule) is in force in any area (Art. 34).
  • Implementation: Most are self-executive. For some, laws can be made only by Parliament and not by state legislatures to ensure uniformity (Art. 35).

FUNDAMENTAL RIGHTS: PROTECTING LIBERTIES AND EQUALITY IN INDIA

Category Articles Key Provisions
Right to Equality 14-18
  • Equality before Law (Art. 14)
  • Prohibition of discrimination (Art. 15)
  • Equality of opportunity in public employment (Art. 16)
  • Abolition of Untouchability (Art. 17)
  • Abolition of titles (Art. 18)
Right to Freedom 19-22
  • Protection of six rights regarding freedom of: speech, assembly, association, movement, residence, and profession (Art. 19)
  • Protection in respect of conviction (Art. 20)
  • Protection of life and personal liberty (Art. 21)
  • Right to elementary education (Art. 21A)
  • Protection against arrest/detention (Art. 22)
Right Against Exploitation 23-24
  • Prohibition of human trafficking and forced labour (Art. 23)
  • Prohibition of child labour in factories (Art. 24)
Right to Freedom of Religion 25-28
  • Freedom of conscience and profession (Art. 25)
  • Freedom to manage religious affairs (Art. 26)
  • Freedom from payment of taxes for promotion of religion (Art. 27)
  • Freedom from religious instruction in certain institutions (Art. 28)
Cultural and Educational Rights 29-30
  • Protection of language, script and culture of minorities (Art. 29)
  • Right of minorities to establish/administer educational institutions (Art. 30)
Right to Constitutional Remedies 32 Right to move the Supreme Court for enforcement of fundamental rights (Part of basic structure).

FUNDAMENTAL RIGHTS AND CONSTITUTIONAL PROVISIONS: ART. 12-18

Article 12: Definition of "State"

Art. 12 defines "State" to include:

  • Government and Parliament of India.
  • Government and Legislature of States.
  • Local authorities: Municipalities, Panchayats, District Boards, etc.
  • Statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

Supreme Court: Even a private body working as an instrument of the state falls under Article 12.

Article 13: Laws Inconsistent with FR

  • All laws in derogation of Fundamental Rights shall be void.
  • Includes: Permanent laws, Ordinances, Delegated legislation (orders, rules), and Customs/Usage.
  • Provides the power of Judicial Review.

Kesavananda Bharati case (1973): Constitutional amendments can be challenged if they violate the "Basic Structure".

Article 14: Right to Equality

Equality Before Law (British)

Absence of privileges; all persons subject to ordinary law; no person is above law (Negative notion).

Equal Protection of Law (USA)

Equality of treatment under equal circumstances; similar application of laws to all similarly situated (Positive notion).

Exceptions to Article 14:

  • President and Governors (Art. 361)
  • Foreign sovereigns, diplomats, and UNO agencies.
  • Article 31C (Where 31C comes in, Art. 14 goes out).
  • Parliamentary Privileges (Art. 105 & 194).

Article 15: Prohibition of Discrimination

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

Exceptions (State can make special provisions for):

  • Women and children.
  • Socially and educationally backward classes (OBCs) or SC/STs.
  • Admission to educational institutions (93rd Amendment, 2006).
  • Economically Weaker Sections (EWS) - (103rd Amendment, 2019).

Article 16: Equality of Opportunity in Public Employment

  • Equality in matters of employment or appointment under the State.
  • Exceptions: Residence requirements (AP & Telangana), reservation for under-represented backward classes, religious offices, and EWS quota.

Article 17: Abolition of Untouchability

  • Forbids untouchability in any form.
  • Protection of Civil Rights Act (1955/1976).
  • Available against private individuals; State is obligated to ensure it is not violated.

Article 18: Abolition of Titles

  • Prohibits state titles (except military or academic).
  • National Awards (Bharat Ratna, etc.) are valid but NOT to be used as prefixes/suffixes.
  • Prohibits Indian citizens from accepting titles from foreign states.

RIGHT TO FREEDOM (ART. 19-22)

Article 19: Guarantee of Six Rights

Originally, Article 19 had 7 rights; the Right to Property was deleted by the 44th Amendment Act, 1978 and moved to Art. 300A. These 6 rights are protected only against state action and are available only to Citizens.

The Six Freedoms

  • Speech and Expression
  • Assemble peaceably (without arms)
  • Form associations/unions/cooperatives
  • Move freely throughout India
  • Reside and settle in any part of India
  • Practice any profession or trade

Reasonable Restrictions

Sovereignty and integrity of India, Security of the state, Friendly relations with foreign states, Public order, Decency, Morality, Contempt of court, Defamation, and Incitement to an offence.

Freedom of Speech & Expression: Scope

The Supreme Court has expanded this to include:

Freedom of Press
Commercial Ads
Against phone tapping
Right to Telecast
Right to Silence
Right to Know Govt activities

PROTECTION OF INDIVIDUAL LIBERTY (ART. 20-22)

Article Provision Key Details
Art. 20 Protection in respect of conviction
  • No Ex-Post-Facto Law: No punishment for acts that weren't crimes when committed.
  • No Double Jeopardy: No person punished for same offence twice.
  • No Self-Incrimination: Cannot be compelled to be a witness against self.
Art. 21 Life and Personal Liberty "No person shall be deprived of life/liberty except according to procedure established by law." Maneka Gandhi case (1978) ensured this procedure must be fair, just, and reasonable.
Art. 21A Right to Education State shall provide free and compulsory education to all children aged 6 to 14 years. (86th Amd Act, 2002).
Art. 22 Protection against Arrest/Detention Includes Punitive detention (post-trial) and Preventive detention (without trial). Max 3 months detention unless Advisory Board approves extension.

RIGHT AGAINST EXPLOITATION (ART. 23-24)

Article 23: Prohibition of Forced Labour

Prohibits traffic in human beings, begar (forced labour), and other similar forms of forced labour. Protects against both the State and private persons.

Article 24: Prohibition of Child Labour

Prohibits employment of children below the age of 14 years in any factory, mine, or other hazardous activities (railways, construction).

RIGHT TO FREEDOM OF RELIGION (ART. 25-28)

Article 25: Individual Freedom

Freedom of conscience and the right to freely profess, practice, and propagate religion. Does not include the right to forcibly convert.

Article 26: Collective Freedom

Right of every religious denomination to establish institutions, manage its own religious affairs, and own/acquire property.

Article 27 Freedom from Taxation: No person shall be compelled to pay taxes for the promotion or maintenance of any particular religion.
Article 28 Religious Instruction: No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

Religious Freedom: Taxation and Instruction

Article 27: Freedom from Taxation

No person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.

  • Prohibits the state from favoring, patronizing, or supporting one religion over others.
  • Crucial Distinction: It prohibits Taxes but does not prohibit Fees (levied to provide services/secular administration).

Article 28: Religious Instruction

No religious instruction shall be provided in any educational institution wholly maintained out of state funds.

Four Types of Educational Institutions:

1. Wholly maintained by State: Religious instruction is completely prohibited.
2. Administered by State but established under Trust: Religious instruction is permitted.
3. Recognized by State: Permitted on a voluntary basis.
4. Receiving Aid from State: Permitted on a voluntary basis.

Cultural and Educational Rights

Article 29: Protection of Interests of Minorities

Any section of citizens residing in India having a distinct language, script, or culture has the right to conserve the same.

  • Art 29(1): Protects the right of a group.
  • Art 29(2): Guarantees the right of a citizen as an individual (No denial of admission based only on religion, race, caste, or language).
  • Scope: Includes both religious and linguistic minorities. The SC held it includes the right to agitate for language protection and applies to both minorities and the majority.

Article 30: Right of Minorities to Establish Institutions

  • All minorities (religious or linguistic) have the right to establish and administer educational institutions of their choice.
  • Property Rights: Compensation for compulsory acquisition must not abrogate their rights (Added by 44th Amendment).
  • Non-Discrimination: The State shall not discriminate in granting aid.
  • Note: Protection under Art 30 is confined only to minorities, unlike Art 29 which uses "section of citizens".

Right to Constitutional Remedies

"An article without which this Constitution would be a nullity... It is the very soul of the Constitution and the very heart of it." — Dr. B.R. Ambedkar

Feature Supreme Court (Art 32) High Court (Art 226)
Jurisdiction Original but not exclusive. Exclusive and original.
Scope of Rights Enforces only Fundamental Rights. Enforces FR + Legal/Constitutional/Customary rights.
Territorial Reach Wider (All of India). Narrower (Within State/UT).
Duty to Exercise Defender and Guarantor; Cannot refuse. Discretionary; May refuse.

WRITS: Types and Scope

Borrowed from English law ("Prerogative Writs"), these are the "fountain of justice."

1. HABEAS CORPUS ("To have the body of"):

Bulwark of liberty against arbitrary detention. Order to produce a detained person. Not issued if: detention is lawful, for contempt of court, or outside jurisdiction.

2. MANDAMUS ("We Command"):

Directs public officials/bodies to perform failed duties. Not issued against: private individuals, discretionary duties, President, or Governors.

3. PROHIBITION ("To Forbid"):

Issued by a higher court to a lower court/quasi-judicial body to prevent inactivity. Not available against: Administrative or Legislative bodies.

4. CERTIORARI ("To be certified"):

To transfer a pending case or squash an order. New Rule (1991): Can be issued against administrative authorities affecting individual rights.

5. QUO WARRANTO ("By what authority"):

Enquires into the legality of a claim to public office. Can be sought by any interested person (not just aggrieved).

Armed Forces and Implementation

  • Article 33: Empowers Parliament only to restrict FR of Armed Forces, Para-military, Police, and Intel agencies to maintain discipline.
  • Article 34: Restrictions on FR while Martial Law (Military Rule) is in force. Enables indemnifying govt servants for acts done to restore order.
  • Article 35: Legislative power to give effect to FR vests only in Parliament to ensure uniformity across India (e.g., laws for Untouchability or Forced Labour).

Comparison: Martial Law vs. National Emergency

Feature Martial Law National Emergency (Art 352)
Scope Affects only Fundamental Rights. Affects FR, Centre-State relations, and legislative powers.
Government Suspends govt and ordinary law courts. Continues govt and ordinary law courts.
Grounds Breakdown of law and order (any reason). War, External Aggression, or Armed Rebellion.
Provision Implicit; no specific constitutional provision. Explicit; detailed constitutional provisions.
Purpose/Grounds Imposed to restore the breakdown of law and order due to any reason. Imposed only on three grounds: War, External Aggression, or Armed Rebellion.
Territorial Scope Imposed in some specific area of the country. Imposed either in the whole country or in any part of it.
Constitutional Basis No specific provision; it is implicit in the Constitution. Specific and detailed provision; it is explicit.

EXCEPTIONS TO FUNDAMENTAL RIGHTS: BALANCING LIBERTY

  • Article 31A: Saving of laws providing for acquisition of estates, etc.
  • Article 31B: Validation of certain acts and regulations (Laws included in the 9th Schedule).
  • Article 31C: Saving of laws giving effect to certain directive principles (specifically Art. 39(b) and 39(c)).

CRITICISM

  • Excessive limitations and reasonable restrictions.
  • No social and economic Fundamental Rights (like right to work).
  • Lack of clarity in various definitions.
  • No permanency (can be amended by Parliament).
  • Suspension during emergency (curtailing liberty).
  • Expensive judicial remedy for the common man.
  • Provision for Preventive Detention.
  • No consistent underlying philosophy.

SIGNIFICANCE

  • Bedrock of the democratic system in the country.
  • Formidable bulwark of individual liberty.
  • Ensure the dignity and respect of every individual.
  • Strengthen the secular fabric of the Indian state.
  • Protect the interests of minorities and weaker sections.
  • Uphold the Rule of Law.