6 - Fundamental Rights

Fundamental Rights



England – Individual Rights



USA – Fundamental Rights – Bill of Rights



India – Fundamental Rights



History of the demand for Fundamental Rights 1)

Government of India Act, 1935 

Simon Commission



Joint parliamentary Committee 1

- Rejected Fundamental Rights

2)

Nehru Report 

3)



In favour of Fundamental Rights

Makers of Constitution 

Adopted Rejected Fundamental Rights and Directive Principles



Taken from USA – but a compromise between Parliamentary Sovereignty and Judicial Supremacy

Article 13 – Courts have Power contravening Fundamental Rights

to

declare

Void

laws

Therefore followed American model, but Indian Legislature stronger than Judiciary: a)

Power to impose reasonable restriction

b)

Power to amend constitution Eg. Right to Property – Janata Government



c)

Exceptions – Article 31A, B, C, D – Enactments under the said Articles cannot be struck down as violative of Fundamental Rights

d)

Fundamental Duties under Article 51A – Curtailing Effect

e)

List of Fundamental Rights under Part III exhaustive

Other Rights also available under Constitution but no Writ Jurisdiction Eg. Article 265 – by

‘No tax shall be levied or collected except

2

Authority of Law’



Concept of ‘Fundamental’ 

Immune to all constitutional amendment



Article 368 – All parts of constitution can be amended



SC -> Golak Nath Case –

‘Fundamental Rights’ cannot be amended under Article

368 

Article 368 itself amended



Kesavananda Bharati’s Case – –





Judge Bench Parliament can amend Fundamental Rights

42nd Amendment - Fundamental Rights can be amended and referendum

Article 14 – Equality before law and Equal Protection of Laws A.

Equality before law

3



Negative Concept privileges



Taken from Second Corollary from Dicey’s Concept of the Rule of Law, that is, No man is above Law



Exceptions 1)

B.

–

Implies

absence

of

special

Governor and President i)

Not answerable to any Court of Law

ii)

No Criminal Proceedings

iii)

No Civil Proceedings – not applicable to impeachment and other appropriate proceedings against Government

Equal Protection of Laws



Equal treatment in similar circumstances



Providing for ‘Classification’ by State

1)

Based on Intelligible differentia Therefore classification can be based on: i)

Geographical differentia

ii)

Time

iii) Nature of trade, calling or occupation Eg. Taxation i)

Exemption from taxation – Charities, libraries 4



Different taxes for different trades

iii)

Real tax and Property tax



Applies to Substantive and Procedural Law



Hits at arbitrariness of State Action in any form



Article 14 – General Equality



Articles 15 and 16 – Specific Equality

Article 15 - Prohibition of discrimination on grounds of Religion, Race, Caste, Sex or Place of Birth





ii)

In access to public places and facilities but does not prevent state from: i)

From making special provision for children

ii)

And for backward classes – Schedule Castes and Schedule Tribes

Article 16 - Equality of opportunity in matters of public employment

5



No person can be excluded from state service exceptions: Reservation can be made for: i)

Backward class of citizens

ii)

Religious or denominated institution officers

iii) Schedule Castes and Schedule Tribes (Article 335)



Article 17 - Abolition of Untouchability



Punishable



Untouchability (offences) Act 1955

Protection of Civil Rights Act, 1955 6



No definition of Untouchability i)

Refusal of admission to public institutions

ii)

Prevention of worship in public places

iii) Subjecting person to disability 





Act in 1976 i)

Insulting member of Supreme Court

ii)

Justifying untouchability

Penalty i)

1 to 2 years imprisonment

ii)

Cannot stand for election

Article 18 - Abolition of Titles



To eradicate imperialistic tendencies exceptions: i)

Ban operates only against state

ii)

State not debarred from awarding military or academic distinctions

iii) State can award distinctions Eg. Bharat Ratna, Padma Vibhusha, Padma Bhushan, Padma Sri 

Criticism 7



Articles 17 and 18 – Social Justice



Article 19 – The Six Freedoms

1.

Freedom of Speech and Expression

2.

To assemble Peaceably and Without Arms

8

3.

To form Associations or Unions

4.

To move freely throughout the territory of India

India 5.

To reside and settle in any part of the Territory of India

6.

---

9

7. 

To practise any profession, or to carry on any occupation, trade or business

Constitution attempts to strike balance between individual liberty and social control by imposing restrictions: Eg: i)

Defamation

ii)

Contempt of Court

iii) Decency or Morality iv) Security of State v)

Friendly relations with Foreign States

vi) Incitement to an Offence vii) Public Order viii) Maintenance of the Sovereignty and Integrity of India 

Restrictions to be Reasonable Tests i)

Object of (substantial)

Legislations

to

be

served

ii)

Not to violate Natural Justice (procedural)

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



Article 20 – Protection in respect of conviction of Offences

a)

Prohibition of retrospective Criminal Legislation

b)

Double Jeopardy

c)

Compulsion to give self-incriminating evidence

Article 21 – Protection of Life and Personal Liberty

11





No person to be deprived of his life or liberty except according to procedure established by Law



But there cannot be absolute freedom



Safeguards individual against arbitrary or illegal action on the part of Executive

Article 22 – Protection against Arbitrary Arrest and Detention

“is it because I used to be black?”

1)

On arrest to be informed of grounds of arrest

2)

Right to consult and be assisted by advocate 12

3)

To be produced before magistrate within 24 hours Not available



a)

Enemy/alien

b)

Preventive Detention

Conditions applicable to Preventive Detention i)

3 months / Report to Advisory Board

ii)

To know grounds of detention

iii) Earliest opportunity of Making Representation 

To Protect i)

Security of State

ii)

Maintenance of Public Order

iii) Maintenance of supplies and services essential to State



Article 23 – Right against Exploitation

a)

Prohibition or Traffic in Human Beings and Forced Labour

b)

But does not prevent State from imposing compulsory recruitment or Conscription for public purposes such as military or social service 13



Article 24 – Prohibition of Employment of Child (Below 14) in Factories, etc.



Articles 25, 26, 27, 28 – Freedom of Conscience and Free Profession, Practise and Propagation of Religion



In tune with Declaration of India as Secular State



No state religion



No taxes for religious institutions



No religious instruction in educational institutions wholly supported by state fund



Right to propagate religion

14



Article 29 – State not to impose any culture other than a community’s cultures



Article 30 – Communities have right to establish and administer educational institutions

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