Fundamental Rights - 1 [Polity for UPSC]

 

HISTORY OF FUNDAMENTAL RIGHTS

-> The Nehru Report in 1928 demanded inalienable fundamental rights for the people of India which was basically inspired by the American bill of rights

-> The Indian National Congress at its Karachi session 1931, presided over by Sardar Patel had adopted a resolution on Fundamental Rights

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CLASSES OF FUNDAMENTAL RIGHTS

-> Right to Equality (Art. 14-18)

-> Right to Freedom (Art. 19-22)

-> Right against Exploitation (Art. 23-24)

-> Right to Freedom of Religion (Art. 25-28)

-> Cultural and Educational Rights (Art. 29-30)

-> Right to Constitutional Remedies (Art. 32)

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FEATURES OF FUNDAMENTAL RIGHTS

-> Availability

-> Not absolute (but qualified)

-> Safeguard against state action

-> Negative in Character

-> Positive in Character

-> Justiciable in nature

-> Protected by SC

-> Denial of FRs in some cases (e.g - Para-military personnel, police forces etc)

-> Not permanent in nature

-> Suspension of FR’s

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ARTICLE 12

-> Article 12 seeks to define the scope of “State” for the purpose of Part III of the Constitution

-> The state comprises of the following:

1. Govt. and Parliament of India

2. Govt. and Legislature of each State

3. All local authorities

4. All other authorities

-> Local Authority includes

> Local government

> In the case of Ajit Singh v. State of Punjab, it was held that within the meaning of the term local authority, village panchayat is also included

-> Other Authorities

> University of Madras v. Shanta Bai

> Ujjammabai v. the State of U.P.

> Rajasthan Electricity Board v. Mohan Lal

> R. D. Shetty v/s International Airport Authority

-> Does state include private bodies?

-> Does state inlcude judiciary? (when courts perform its non-judicial functions, it fall within the definition of the 'State' )

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ARTICLE 13

-> Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void

-> Law in Article 13 incoludes:

> Permanent laws

> Temporary laws

> Statutory instruments 

> Non-legislative sources of law

-> Exceptions (does not come under def. of "Law")

> Instructions and guidelines (Article 13(3))

> Personal Laws 

-> Judicial Review

> Judiciary's ability to examine and assess the legality of a law or an order

> It emerged in USA as an implied power of judiciary in Marbury v/s Madison case, 1803

-> Doctrine of Eclipse

> Article 13(1) states that pre-constitutional laws will be void if they are inconsistent with any FR

> Bhikhaji Narayan case(1955)

> State of Gujarat vs Ambika Mills (1974)

> K.K. Poonacha vs State Of Karnataka & Others (2010)

-> Doctrine of Severability

> Minerva Mills Case (1980), the Supreme Court invalidated clause 4 and 5 of Article 368, which were added by 42nd Amendment Act in 1976

-> Doctrine of Waiver

-> Doctrine of Basic Structure

-> Doctrine of Prospective Over-Ruling

> Golaknath case, 1967

> SC can overrule its earlier judgment, but the impact will apply from the prospective effect and not retrospectively

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RIGHT TO EQUALITY (Article 14 - 18)

ARTICLE 14

-> Article 14 guarantees to all persons (citizens as well as non-citizens) equality before the law or the equal protection of the laws within the territory of India

-> Equality before law

> British origin

> Negative concept

> No one is above Law

> No Special Privileges

> No man is above the law of the land

-> Equal protection of laws

> American origin

> Positive concept

> Among equals the law should be equal

> Like should be treated alike

> No Discrimination

-> Rule of Law (by A.V Dicey)

> Absence of arbitary power

> Equality before Law

> Constitution is not the source

->Exceptions

> President of India and Governors of States (Article 361)

> Article 361-A, publishing a substantially true report

> MPs and MLAs(Article 105 and 194)

> Under Article 31-C, the laws made by the state for implementing DPSPs contained in Article 39 (b) and Article 39 (c) 

> foreign sovereigns (rulers), ambassadors and diplomats

> UNO and its agencies

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ARTICLE 15

-> The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth

-> No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition (Article 15(2))

-> Applicability

> This right is available to Indian citizens only

> Foreign nationals and legal entities can also be discriminated

> Art. 15(1) is a direction only to the State

> Art. 15(2) is available against private individuals as well

-> Exception

> Special provision for women and children (Art. 15(3))

> Advancement of any socially and educationally backward classes of citizens or for the SC and the ST (Art. 15(4))

> Admission to educational institutions including private educational institutions (Art. 15(5))

> Advancement of any EWS (Art. 15(6)) [103rd CA, 2019]

-> Reservation

> SCs, STs, OBCs - 15%, 7.5%, 27%

> Person with Disability Act, 1995 

> 10% Reservation

-> Case Law

> State of Madras vs Champakam Dorairajan (1951) (1st CAA added Article 15(4))

> Indra Sawhney vs. Union of India (1992) [Creamy Layer and reservation does not exceed 50%]

> M. Nagaraj vs. Union of India (2006)

> Jarnail Singh v. Lachhmi Narain Gupta (2018)

> Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018

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ARTICLE 16

-> Right to Equality of Opportunities in Matters of Public Employment (Article 16(1))

-> No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State (Article 16(2))

-> Exceptions

> State can prescribe residence as a condition for certain employment (Article 16(3))

> Reservation of appointments or posts in favour of any backward class of citizens (Article 16(4))

> Reservation in matters of promotion, with consequential seniority, in favour of the SC and the ST (Article 16(4A)) [77th CAA, 1995]

> Carry forward rule (Article 16(4B)) [81st CAA, 2000] 

> Nothing in the article will impact operation of the law which provides for incumbent of a religious or denominational institution (Article 16(5))

> EWS reservation (Article 16(6)) [103rd CAA, 2019]

-> Faculty Association of AIIMS vs. Union of India

> In this case, Supreme Court ruled that there are certain jobs for which merit alone should be the sole criteria

-> Job Reservations, Promotion Quotas Not A Fundamental Right

> The Court held that Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the State Government

> C.A. Rajendran v. Union of India (1967)

->Commissions

> Kelkar Commission, 1953

> Mandal Commission, 1979

> Sachar Committee, 2003

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ARTICLE 17

-> This article abolishes ‘untouchability’ and forbids its practice in any form

-> Acoording to Mysore High Court, untouchability refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes

-> The Protection of Civil Rights Act, 1976 (initially named as Untouchabilities (Offences) Act, 1955)

-> The SC and ST Prevention of Atrocities Act, 1989

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ARTICLE 18

-> Abolition of titles, except military and academic titles

-> In Balaji Raghavan case, the SC allowed the State to give Bharat Ratna and Padma awards but made it clear that these couldn’t be used as a title

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RIGHT TO FREEDOM

ARTICLE 19

-> Law restricting the exercise of any of the 6 freedoms guaranteed by Article 19(1) needs to be constitutionally valid. Also, the reasonable restrictions imposed by the Parliament are subject to Judicial Review by the Supreme Court.

(a) Freedom of speech and expression (Article 19(1)(a))

-> Also includes the 'right to remain silent'

-> National Anthem Case (Bijoe Emmanuel vs. State of Kerala)

-> Freedom of Press is implicit in the freedom of speech and expression

-> Hate Speech vs Freedom of Speech

> Pravasi Bhalai Sangathan v. Union of India (2014)

> The 267th report of the Law Commission defined Hate speech as “an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like”

> IPC

 - Sec. 153A and 153B

 - Sec. 295 A

 - Sec. 505(1) & 505(2)

-> Restrictions (Article 19(2))

> Interests of India's ‘sovereignty’ and ‘integrity’

> State's security, friendly relations with foreign states

> Public order, decency, and morality

> Contempt of court, defamation, and incitement to an offence

(b) Freedom of Assembly (Article 19(1)(b))

-> Rights

> Right to hold meetings

> Right to hold demonstrations

> To take out processions

-> Conditions

> Must be unarmed

> The assembly must be peaceful

> Must not cause any breach of public peace

-> Right to Strike

> Trade Unions have the right to strike under certain circumstances in Industrial Disputes Act

> SC in T.K. Rangarajan vs. State of Tamil Nadu held that govt. officials don’t have the fundamental right to strike

-> Restrictions (Article 19(3)) - Public order, Sovereignty and Integrity of India

(c) Freedom To Form Association (Article 19(1)(c))

-> every citizen has the right to form groups or unions for a legal purpose

-> Restrictions (Article 19(4)) - interest of the sovereignty and integrity of India or public order or morality

(d) Freedom of Movement (Article 19(1)(d))

-> This article protects the 'right to move inside the country' whereas 'external movement' dealt through 'Right to life and personal liberty' guaranteed by Article 21

-> Case Laws

> Kharak Singh V. State of UP (1963)

> State of UP V. Kaushalya Case (1964) [movement of prostitutes restricted on grounds of Public Health and Public Morals]

-> Restrictions (Article 19(5)) - interests of general public and the protection of the interest of any schedule tribe

(e) Freedom of Residence (Article 19(1)(e))

-> It guarantees to citizens the right to 'reside' and 'settle' in any part of the territory of India

-> Restrictions (Article 19(5)) -  interest of general public and the protection of interest of any scheduled tribe

(g) Freedom of Trade and Occupation (Article 19(1)(g))

-> The right to carry on a business also includes the right to close it

-> Restrictions (Article 19(6)) - Interest of general public and technical qualifications

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ARTICLE 20 

-> Protection in respect of Conviction for Offences (availiable to citizens and non-citizens)

-> Article 20(1) - Ex post Facto Law

> This protection is available only in case of criminal laws and not civil laws

> This provision prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial

> Cases

 - Vodafone Case

 - Nirbhaya Case (minor convict)

-> Article 20(2) - Double Jeopardy

> available only in proceedings before a court of law

> it is not available in proceedings before ‘departmental’ or ‘administrative authorities’ 

-> Article 20(3) - Self Incrimination

> Restrictions

 - Compulsory production of material objects

 - Compulsion to give thumb impression, specimen signature, blood specimens,

 - Compulsory exhibition of the body

> Case - Selvi vs. State of Karnataka

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ARTICLE 21

-> No person shall be deprived of his life or personal liberty except according to 'procedure established by law'

-> Available to both 'citizen' and 'non-citizen'

-> Procedure established by law (British) - judiciary is not allowed to challenge the intentions of the law

-> Due process of law (American) - Judiciary can challenge the law not only on procedural grounds but also on the basis of its reasonableness

-> Important Cases

> Maneka Gandhi case (1978) (due process of law)

> A.K. Gopalan Case (1950)

> Gyan Pal case (no right to suicide)

> ADM Jabalpur Versus Shivkant Shukla case 1975 (Habeas Corpus case)

> Vishaka & ors. v/s State of Rajasthan Case (Right to Live Dignified Life, Right agianst Sexual Harassment at Workplace)

> Hussainara Khatoon vs. State of Bihar (Right to free Legal Aid)

> KS Puttaswamy (Retd.) Vs. Union of India (Right to Privacy)

> Aruna Ramchandra Shanbaug v. Union of India (Right to die with dignity , Euthanasia)

> Mohini Jain vs. State of Karnataka case (Right to Education) [e 86th amendment to the constitution]

> Unnikrishnan JP vs State of Andhra Pradesh & Others

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ARTICLE 21A

-> State shall provide for free and compulsory education to children in the age of 6 to 14 years in such as manner as a state may determine

> This provision deals with the Right to education

> It made elementary education as fundamental rights

> It made right to free and compulsory education for all the children aged 6-14

-> 86th Amendment act 2002

-> Earlier article 45 of the Constitution (DPSP)

-> In order to enforce the aforementioned provisions, Right to Education Act, 2009 was passed (2019 amendment)

-> Applies to all children in the relevant age group whether Indian citizens or not

-> TSR Subramanian Committee & Vasudev Devnani Committee

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ARTICLE 22

-> It provides procedural safeguards against ‘arbitrary arrest’ and ‘detention’ 

-> Punitive Detention

> Punish a person, after trial

> Deals with ordinary Law

> Right to be informed of the grounds of arrest

> Right to consult and be defended by a legal practitioner

> Right to be produced before a magistrate within 24 hours

> Right to be released after 24 hours unless the magistrate authorises further detention

-> Preventive Detention

> Detain a Person, without trial

> Deal with Preventive Detention Law

> Detention cannot exceed three months

> Unless an advisory board reports sufficient cause for extended detention

> The board is to consist of judges of a high court

> The grounds of detention should be communicated to the detenu

-> Some Preventive Detention Acts

> Preventive Detention Law, 1950

> Unlawful Activities Prevention Act (UAPA) 1968

> Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974

> Nation Security Act, 1980

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