Fundamental Rights - 2 [Polity for UPSC]

 

RIGHT AGAINST EXPLOITATION

ARTICLE 23

-> Prohibition of Human Trafficking

-> Prohibition of Begar (Bonded labour - involuntary work without payment, also known as 'debt bondage')

-> Prohibition of Forced Labour

-> It is available both to citizens and non-citizens

-> This article abolished Devadasi system

-> Legislations

> Immoral Traffic Prevention Act (ITPA), 1956

> Bonded Labor System (Abolition) Act, 1976

> Juvenile Justice (Care and Protection) Act, 2000

-> Article 23(2) states that State can impose compulsory service if there is a need for the same

> Example - military service or social service

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ARTICLE 24

-> It prohibits the employment of children in hazardous occupations. However, it does not prohibit their employment in harmless work

-> Article 23 and 24 are complemented by Article 39(e) and 39(f)

-> Available to all children regardless of citizenship status

-> Legislations

> The Child Labour (Prohibition and Regulation) Act, 1986 (Amendment 2016, 2017)

> The Commissions for Protection of Child Rights Act, 2005

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RIGHT TO FREEDOM OF RELIGION

ARTICLE 25

-> Freedom of conscience

-> Right to profess

-> Right to practice

-> Right to propagate (propagation only indicates persuasion and exposition without any element of coercion)

-> Available to all persons—citizens & non-citizens

-> Restrictions on grounds of

> Public order, morality and health and to the other provisions of FR

> Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice

> providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus

-> Essential religious practice doctrine (Shirur Mutt case in 1954)

-> Cases

> Jagadishwaranand case, 1984

> Stainislau v/s State of MP, 1977 (Only voluntary conversions are valid in India)

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ARTICLE 26

-> Article 25 gives freedom to an individual, while Article 26 deals with an entire religious denomination or any of its section

-> Every religious denomination or any section shall have the right—

a) to establish and maintain institutions for religious and charitable purposes;

b) to manage its own affairs in matters of religion;

c) to own and acquire movable and immovable property; and 

d) to administer such property in accordance with law

-> While right to property of an individual is not a Fundamental Right anymore, for religious denomination it continues to be a Fundamental Right

-> Subject to public order, morality and health

-> Cases

> Haji Ali dargah case

> Sabarimala case

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ARTICLE 27

-> It lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination

-> State should not spend the public money collected by way of tax for the same

-> This provision prohibits the State from favouring, patronising and supporting one religion over the other

-> This means that the taxes can be used for the promotion or maintenance of all religions

-> This provision prohibits only levy of a tax and not a fee

-> This is because the purpose of a fee is to control secular administration of religious institutions and not to promote or maintain religion

-> Thus, a fee can be levied on pilgrims to provide them some special service or safety measures

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ARTICLE 28

-> According to this provision, 

> No religious instruction shall be provided in any educational institution wholly maintained out of State funds

> However, this provision does not apply to institutions administered by the state but established under any endowment or trust, which requires imparting religious instructions

> Consent of people required, for religious instruction if educational institution is recognised by or receiving aid from the State

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CULTURAL AND EDUCATIONAL RIGHTS (only for citizens)

ARTICLE 29

-> Article 29(1) recognizes the right of an individual to preserve his culture, his language and script

-> Article 29(2) prohibits the State from making discrimination (religion, race, caste or language) while granting access to educational institutions

-> It grants protection to both linguistic and religious minorities (no caste minorities). SC has held that the scope of this article is not restricted to minorities only and is available to “all sections” of the population, including majority

-> Article 29(1) is not subjected to any reasonable restrictions

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ARTICLE 30

-> Minority - Establish & administer educational institutions of their choice

-> Adequate amount of compensation fixed by the state for acquisition of minority's property

-> State - No discrimination against any Minority educational institution

-> Minority has not been defined by the Constitution

> Judiciary has established parameters to determine the minority status ( Kerala Education Bill, Guru Nanak Dev University)

> At union level, it means those groups, which have less than 50% population at all India level

> At state level, it means groups forming less than 50% population within the state

-> Minority educational institutions are of 3 types, institution that seek

1. recognition as well as aid from the state

2. only recognition from state

3. neither recognition nor aid from the state

->  National Commission for Minority Educational Institutions (NCMEI) 

-> While Article 29 is a general protection available to all sections of the population, Article 30 is protection available only to the linguistic or religious minorities

-> Cases

> St. Stephens v/s University of Delhi, 1992

> TMA Pai Foundation and others v/s State of Karnataka, 2002

> Azeez Basha v. Union of India

> Islamic Academy of education v/s State of Karnataka, 2003

> St. Joseph College Case, 2018

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ARTICLE 31 (OMITTED)

-> Repealed in 1978 by the 44th Amendment Act

-> Right to Property under Article 300A (Part XII)

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SAVING OF CERTAIN LAWS

ARTICLE 31A

-> Added by 1st Amendment Act

-> Article 31A saves 5 categories of laws from being challenged and invalidated on the ground of contravention of Fundamental Rights conferred by Article 14 and Article 19

-> It includes

> Aquisition of estates and related reights by the State

> Taking over the management of properties by the State

> Amalgation of corporation

> Extinguishment or modification of rigths of directors or shareholder of corporations

> Extinguishment or modification of mining leases

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ARTCLE 31B

-> Added by 1st Amendment Act

-> It protects the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights

-> The scope of Article 31B is wider than Article 31A as it immunises any law included in the 9th schedule from the Fundamental Rights

-> IR Coehlo case (2007), the Apex Court ruled that laws placed under Ninth Schedule after April 24, 1973 (the date of Kesavananda Bharati verdict) shall be open to challenge in court if they violated fundamental rights guaranteed under Articles 14, 19, 20 and 21 of the Constitution

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ARTICLE 31C

-> Added by 25th Amendment Act in 1971

-> It protects laws implementing Directive Principles under 39(b), 39(c) from invalidation on the ground of violation of Article 14, 19 and 31

->  Article 31 C originally sought to oust the jurisdiction of the courts to find out whether the law in question gave effect to the principles of Articles 39 (b) and 39 (c), but it  was struck down in the Kesavananda Bharati case 1973, as it took away the powers of judicial review

-> 42nd Amendment Act- changes, but change were struck down by SC in Minerva Mill Case

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RIGHT TO CONSTITUTIONAL REMEDY

ARTICLE 32

-> Article 32(1) gives the right to move the SC for the enforcement of FR

> Epistolary jurisdiction

> Suo moto

> Doctrine of Laches

> Doctrine of Res Judicata

-> Article 32 (2) confers powers to the Supreme Court to issue appropriate directions or order or writ (Art. 226 HC similar power)

> Habeas Corpus (You may have the body)

> Mandamus (We Command)

> Certiorari (to forbid)

> Prohibition (to be certified)

> Quo Warranto (by what authority)

-> Article 32(3) - Parliament can authorize any other court also to enforce FR (HC)

> Condition1 - Without negatively effecting the powers of SC

> Condition2 - other court powers are limited within the local limits of its jurisdiction

-> Article 32(4) provides for the suspension of Article 32, in special manner as prescribed in Article 359

-> Diff. between writ jurisdiction of SC and HC

> diff. in scope (SC only for FR)

> diff. in jurisdiction (SC - Pan-India)

> SC cannot refuse to exercise its writ jurisdiction

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ARTICLE 33

-> It empowers the Parliament to restrict or abrogate the application of the fundamental rights in relation to the armed forces, paramilitary forces, police etc

-> Applicable to 

> members of the Armed Forces

> members of the Forces charged with the maintenance of public order

> persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence

> person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force

-> Parliament Enactments

> Police Forces (Restriction of Rights) Act, 1966

> The Army Act, 1950

> The Navy Act, 1950

> The Air Force Act, 1950

> The Border Security Force Act and many more

-> Restriction on following FRs

> freedom of speech,

> right to form association

> right to be a member of trade unions or political association

> right to communicate with press

> right to attend public meetings or demonstration, etc

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ARTICLE 34

-> It pertains to the restrictions on the fundamental rights while martial law is in force in any area. (Martial law means law made by military authorities. Such a law is imposed by the President, since he is the supreme commander of armed forces)

-> This article gives indemnity by law in respect to acts done during operations of martial law

-> The act of indemnity cannot be challenged in any court on the ground of contravention with any of the FRs

-> Diff. between Martial Law and National Emergency on the basis of

> Affects 

> suspension of govt. & ordinary law courts

> imposition (Why?)

> imposition (acc. to area)

> provision in Constitution

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ARTICLE 35

-> It states that power to make laws to give effect to FR shall vest only in the Parliament and not State Legislatures

-> Parliament have power to make laws 

> Article 16(3) [residence as a condition for certain employment]

> Article 32(3) [empowering other courts to issue directions, orders and writs]

> Article 33

> Article 34

-> Parliament have power to make laws for prescribing punishment for those acts which are declared to be offences under this Part

> Untouchability under Art. 17

> Human trafficking and forced labour under Art. 23

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SIGNIFICANCE OF FRs

-> Foundation of the country's democratic system

-> Create the necessary conditions for man's material and moral protection

-> Powerful bulwark of individual liberty

-> Establish the rule of law

-> Defend the rights of minorities and the weaker sections of society

-> Contribute to the Indian State's secular fabric

-> Check the absoluteness of the government's authority

-> Lay the groundwork for social equality and social justice

-> Protect people's dignity and respect

-> Make it easier for people to participate in the political and administrative processes

-> Defend the equality of all individuals, the dignity of the individual, the larger public interest, and national unity

-> Intended to advance the ideal of political democracy

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CRITICISM OF FR

-> Excessive Limitations

-> Suspension During Emergency

-> No Social and Economics Rights

-> Vague, indefinite and ambiguous

-> No Permanency

-> Expensive Remedy

-> No Consistent Philosophy