Lakshmi Kanth Fundamental Rights .pdf

Laxmikant Revision Notes : Fundamental Rights

Fundamental Rights

FR at a glance Part-III

Placing

USA (‘bill of rights’) ide

af rom

Articles 12-35

Fundamental Rights (FR)

Constitutional Remedies (32) Property (31) *

Equality (14-18) to

p ro

Acronym : EFEFCC

te mo

to

Political Democracy

Why ‘Fundamental’ ?

to

Right

to

Cultural & Educational (29-30) protect

protected & guaranteed by

aim

Rights of people against invasion by state (executive/ legislature)

“Govt. of laws and not of men”

most essential for

Fundamental Law (i.e. Constitution)

Overall development of individuals

to ag

to

Freedom of Religion (25-28)

Freedom (19-22) ai

ns

t

Exploitation (23-24)

* Right to property was removed from FR by 44th CAA’ 1978 → made a legal right (Art. 300-A)

Doctrine of Severability/Separatibility Statutory Bodies b ed

v/s Non-statutory Bodies for

y

m for

NOT demarcated in constitution

Legislative Action

me

db

Article 13 All laws inconsistent with FR

y

get

e.g. NITI Aayog Art. 13 provides for Judicial Review of any law(JR)

e.g. NGT, SEBI, CBI, NHRC, etc

e.g. UIDAI

Article 12

Other (controlled/financed by Govt)

Statutory Non-statutory

Art. 32

Govt & Legislature

defines

‘state’ for the purposes of part-III and IV of the constt.

SC

State

HC

Can be made Statutory by enacting a law

Authorities

VOID

i.e.

Executive Action

powers, rules, authority from legislation (Parliament/State)

Local

to be

Art. 226

Article 13 : A fine point

Union

Art. 13 states that Constitutional Amendment (CA) is NOT a law and can’t be challenged

BUT

SC has held that if a CA is violative of a FR which is a part of the basic structure of the constitution, it can be declared void by Judicial Review (Keswanand Bharti Case) Page 2-1

Fundamental Rights

Article 14 Right to Equality : Articles 14 to 18

EPL

The mnemonics to memorise the articles are given in interactive exercises

All persons may not be in same position by nature, circumstances, etc

Within territory of India, State shall not deny to any person

So

Applicable in India in form of EBL

Rule of Law (by Dicey)

ALL persons → subjected to same laws , irrespective of position, standing, etc

In India, its opposite i.e. constitution is source of rights of individuals

Equality before Law (EBL)

Equal protection of Law (EPL)

(negative concept)

(positive concept)

Doctrine of reasonable classification

Art. 14 allows reasonable (and not arbitrary) classification of persons by state to achieve specific aims Art. 31-C Foreign Diplomats 1 Art.

194 05/

People belonging to same classification should be treated alike

MP/MLA

Exceptions State can make special provisions for

Art.

socially/educationally backward classes

Art. 361-A

UNO and its agencies women and children

State may treat different persons differently if circumstances justify such treatment

Equal protection to all those who are in similar circumstances

361

President/Governor

e.g.

Constitution is result of rights of individuals

No man to be punished except for a breach of law (i.e. no arbitrary power)

Govt policy to reserve seats in public employment for backward classes is an e.g. of EPL

Publication in newspaper covered in detail in interactive exercises

Exceptions wrt Article 15

Prohibits discrimination by shops, hotels, etc

public p

laces lik

State only

State as well as individuals

e

Article 15

access

2 with regard to

on g

general public / maintained by state funds

meant for

use of well, tank and other public places

1

No citizen to be subjected to any disability, liability, restriction or condition

State shall not discriminate against any citizen ro u n

on g

ds

roun

ds

ONLY OF

i.e. discrimination on other grounds is not prohibited. for e.g. place of residence

RRCSB ( Religion, Race, Caste, Sex or place of Birth )

Page 2-2

Fundamental Rights

Article 17

Article 16

Untouchability

Equality of opportunity in public employment

is

abolished No discrimination on grounds of ONLY RRCSB, descent and place of residence

enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law

RESIDENCE can be prescribed as condition in certain state/UTs , etc by Parliament

RESERVATION for a backward class not adequately represented in state services

practice in ANY form is forbidden

Exceptions availa

ble a

t gains

All rights accruing by this article

enforc

ed thro

ugh

Private Individuals

Office holder of a religious/ denominational institution can come from respective community if a law is made for same

Civil Rights Act’ 1955 Constitutional duty of state to ensure these rights

Article 18 Exception Abolition of Titles NO presents, emoluments, office from a foreign state

need

by

any foreigner holding office of profit/trust under state

by

citizens

academic/military distinctions

National awards [ Bharat Ratna, Padma awards (Vibhushan, Bhushan , Shri ) ] but

consent of president

NO foreign titles

except

by

State → not to confer any title on any person (citizen/foreigner)

can’t be used with names of awardees

Page 2-3

Fundamental Rights

Right to Freedom : Articles 19 to 22 can

The mnemonics to memorise the articles are given in the interactive exercises

Reasonable Restrictions

State reside (temporary)

pres

qualifications needed for practising a particular profession, trade, etc

cribe

interests of general public

can

settle ( set permanent home/domicile)

itself carry any business, etc partially/completely excluding citizens

General Public interests of

Right to reside and settle in any part of India

Reasonable Restrictions

ST

immoral (e.g. trafficking)

Inter state

Right to practise any profession, trade, etc

Right to move freely throughout the territory of India

except

dangerous (e.g. drugs)

Intra State press freedom, ads, telecast, demonstration , etc

occupations

available against state action only

includes

prohibited/regulated by state Guarantees 6 rights *

Right to form associations, unions , etc

Right to freedom of speech and expression

g. e.

t

his

bu

by

(mouth, writing, printing, etc)

public meeting, demonstration , procession, etc

includes

negative right of not to form/join an association/union

e.g.

Right to assemble peacefully without arms

every citizen can express through various mediums

(views , opinions, etc)

or

e.g. political party, comapany, clubs, etc

only on public land

Right to Strike not included in

Reasonable Restrictions • State Security • Friendly relations with other states • Contempt of Court • Defamation • Incitement to any offence

Reasonable Restrictions • Sovereignty and Integrity of India

Right to speech, assemble or forming association

• Public Order , Morality * Article 19 originally had 7 rights but right to acquire, hold and dispose of property was removed by 44th CAA of 1978

Page 2-4

Fundamental Rights Article 20 : Protection in respect of conviction for offences

Some Technical Terms Ex-post-facto-law e.g.

human Legal Person

firm

non-human

recognised to have legal rights like entering into contracts, sue or be sued govt agency

Double jeopardy e.g. to prevent the state from trying A person commits a crime the case again and again main idea

goes to

trial

acquitted

convicted

whatever the verdict, he can’t be tried again for same offence.

In case of India, DJ is applicable only in case of conviction

Self incrimination act of exposing oneself by making a statement that incriminates the person concerned

foreigner citizen

applicable for

NOT applicable for

ex-post-facto-law

Only for criminal laws

civil / tax laws or preventive detention

Double Jeopardy

Only in case of court/tribunal

departmental/administrative proceedings

Only for criminal proceedings

civil proceedings

NO

available to

Article 20

3 parts

NO

NO

legal person

protection against arbitrary and excessive punishment

Self incrimantion

Page 2-5

Fundamental Rights

Article 21 : Protection of life and personal liberty

A law enacted is valid if it has followed the correct procedure for making the law Procedure Established by Law (PEL)

regarded as “Heart of FRs”

“flaw?” → does NOT seek if law made is fair

mentioned in constitution

No person shall be deprived of his life or personal liberty

except

according to procedure established by law

NOT

just not arbitrary

Due Process of Law (DPL) (USA)

wider meaning

PEL + The procedure should be

Amenities / Others

Dignity Health

free education upto 14 years SC’s interpretation of Art. 21

decent environment

Maneka Gandhi Case (1978)

Gopalan Case (1950)

to information arbitrary executive action

arbitrary executive action aga

Protection under Art. 21 available

t

ins

ag

NO Ta

ain

st

gai

nst

AL

SO

aga

it must also follow DPL Narrow interpretation of Art. 21

ONLY means

liberty related to person or body of individual

Wider interpretation of Art. 21 Right to live with human dignity and other aspects Personal liberty

So, although worded negatively, the wider interpretation by SC has given positive content to Art. 21

covers

life insurance

live with human dignity

sleep

against bonded labour

against noise pollution privacy

timely medical treatment in govt hospital

treatment of women with dignity and respect

Administration of criminal justice and prison administration

ins t

Right

arbitrary legislative action that follows PEL

arbitrary legislative action that follows PEL

Personal liberty

travel abroad electricity

Protection under Art. 21 available

social security and protection of family

emergency medical aid

a variety of rights

In subsequent cases, this scope has been expanded by SC

TO

AG AI NS

T

free legal aid

solitary confinement

speedy trial

handcuffing

fair trial

delayed execution

appeal against concition

custodial harassment

access to necessities of life

public hanging

This list is only indicative and not exhaustive. Please don’t try to memorise this list. Just go through it once and try to gain a bird’s eye view of the scope of Art. 21

Page 2-6

Fundamental Rights

Road to Article 21-A overruled in 1993

existence of FR to only primary education (upto 14 years) under Art. 21

FD

Article 51-A(k) Art. 45 (DPSP) → contained provision for free and compulsory education for children

Punitive

but

Article 21-A added in part - III (i.e. justiciable)

Article 21-A

complements

to

changed to

Article 45

detenu to make representation against the order

* not available to enemy aliens and persons arrested under preventive detention law

detenu to be informed

to be

p

o yt nit

ma x

ten

COFEPOSA

NSA National Security Act, 1980

trial and conviction by a court

trial and conviction by a court

circumstances under which >3 months detention is permitted without consulting advisory board

procedure for inquiry by advisory board

to prescribe

an advisory board (of HC judges) decides for extension

Some e.g. of PDL

Conservation of foreign exchange and prevention of smuggling activities act , 1974

to prevent commission of a future offence

tio n

3 months

grounds of detention (except the ones against public order)

de

security of state

unless

... to

op

o ...t

consult and be defended by a lawyer

Max period of detention

persons arrested under any preventive detention law (PDL) tu or

as punishment for a crime

Power to legislatures by Art. 22

related to

be produced before a magistrate within 24 hours

informed of grounds of arrest

state to provide early childhood care and education till 6 years of age

Second part of Art. 22

First part of Art. 22

Any person arrested under an ordinary law has right *…

Right of children to free and compulsory education Act, 2009 (RTE)

Preventive

without

State shall provide free and compulsory education

Pt enacted

All chlidren (6-14 years)

to be released after 24 hours unless magistrate authorises further detention

Detention

complements

86th CAA' 2002

not justiciable as it was a part of DPSP

Article 22 : Protection against arrest and detention

duty of citizens to provide education to their children/ward between 6-14 years

after

SC ruled in 1992 → existence of FR to education upto ANY level under Art. 21

PBMSECA Prevention of black marketing and maintenance of supplies of essential commodities act, 1980

maintenance of public order

maintenance of supplies and services essential to community

Parliament

concurrently make PDL related to

State Legislatures

security of India

exclusively makes PDL related to

foreign affairs

defence

Page 2-7

Fundamental Rights Right against Expolitation : Articles 23 and 24 corresponding laws by parliament

non-citizens

citizens

to

availab

le ailab

Immoral traffic prevention Act , 1956

traffic in human beings

le

Article 23

military State can impose compulsory service for public purposes without pay

prohibits Bonded labour system (Abolition), Act 1976 Minimum Wages Act, 1948

av

against

begar and other forms of forced labour

social

but no discrimination on grounds of ONLY

Contract labour Act, 1970 Equal Remuneration Act, 1976

private persons

RRC or Class

Important legislations/ orders related to Article 24 For speedy trial

SC order (1996)

Article 24

Child labour rehabilitation welfare fund

Commissions for protection of Child Rights Act, 2005

on

Children < 14 years

Govt ban (2006)

to deposit 20K/child

no prohibition in harmless work

but

prohibited to be

National/State Commissions for protection of Child Rights

Offending employers

Children’s Courts

employment of children <14 years as domestic servants/ workers in hotels, etc

Child Labour (prohibition and regulation) Act, 1986 employed in

factory

amendment in 2016

Renamed : Child and adolescent Labour (prohibition and regulation) Act, 1986

mines hazardous activities (e.g. construction, ports, railways, etc)

pro

employment of children < 14 years

s hibit

pro

hibit s

employment of adolescent (14-18 years)

in

state

exception

in

ALL occupations

hazardous occupation Page 2-8

Fundamental Rights

Right to freedom of Religion : Articles 25-28

Article 27

but

im

pin

s

Propagate Religion

Rig

Rig

ht to

Righ

inner freedom to mould one’s relations with ‘God’

t to

declaring one’s religious belief/faith openly Righ

ht to

t to

Profess Religion

provide regulate/restrict

State permitted to

throw

for

taxes may be used → to promote ALL religions (not any particular ones)

however

A fee can be charged for providing a sdpecific service

this

Practice Religion

economic/financial/political or any secular activity associated with religious practice

on

Freedom of Conscience

Article 25 : All persons are equally entitled to…

rituals, ceremonies, etc

ge

For safety arrangements of pilgrims

No person to be compelled to pay taxes → to be used on any PARTICULAR religion that is

disseminating one’s religious beliefs to others

doe

forcible conversions

r

e.g.

right to convert others ove n't c

in fact

social welfare and reform

prohibits state from favouring one religion over another

open

e.g. management of temples, etc

public Hindu religious institutions

to

All classes/ sections of Hindus

attending religious instruction

property

according to law

administer

establish/maintain R ig ht to

own/acquire

Right to

R

ig

ht

Article 28

to

Right to

Article 26

manage → own religious affairs

Art.25 → Rights of Individuals Art.26 → Rights of religious denominations

subject to

ct to subje sub ject to NOT su

bject to

public order, morality and health

can’t perform human sacrifice

e.g other provisions related to FR

educational institution completely maintained by state

Freedom of religious denominations to manage religious affairs

Art. 25 and 26 guarantee

freedom from

religious/charitable institutions

Govt can restrict loudspeakers

adm by state but estd. under religious endowment/trust

religious instruction completely prohibited

permitted

recognised by state

on voluntary basis

recieving aid from state

on voluntary basis

Page 2-9

Fundamental Rights Cultural & Educational Rights : Articles 29 and 30

Article 30

Religious

Article 29 : Protection of interest of minorities

Linguistic OR Religious minorities

Linguistic

doesn't include

Right to

includes minority as well as majority

Rights of a group

Protects

Rights of an individual

{ {

aim

ensure equality with majority

SC

not

establish AND administer

absolute

(NOT more advantageous position)

“ANY section of citizens”

reasonable regulations can be imposed for larger interests of nation, checks on (in)efficiency of administration and other such measures

educational institutions

having

FROM STATE

right to conserve

distinct culture/script/language

No citizen to be denied on grounds ONLY of RRC and language

TYPES

.

admission to

regulated by state

.

.

adm like fee, syllabus, employment , etc

can be

no regulation from state

but

subject to general laws (like tax, etc)

State managed/aided educational institutions

Article 32 : Right to Constitutional Remedies “ Soul and heart of the constitution” - Dr B.R. Ambedkar orders

powers basic structure

violation of FRs (ONLY) t of

die

i.e.

original

wide SC

xcl

Article 32

te

Art.32

no

right to

pt d

urin

National Emergency (Art.359)

g

writs

Enforcing FRs vis-a-vis Courts original

move SC e e xc

directions

usi

e rem

citizens can approach SC directly in case of violation of FRs

ve

par

r s fo

t. 2

Ar

26

in c

ase

of

HC

Other Courts

violation of FRs orders

directions

can be

empowered by Pt to issue writs/ directions/orders

writs Page 2-10

Fundamental Rights SC v/s HC w.r.t. Writs act / abstain from acting

Cause and legality of detention

Court

enquires

to

legality of a person to a public office

examine

Quo Warranto (“by what authority”)

A written command produce body of a detained person before it

ca

by n be sought

SC any person ( not necessarily the aggrieved person) Scope :

in name of a

HC

only for enforcing FR

enforcing FR + legal rights(‘any other purpose’)

wider

excess/lack of jurisdiction court / legal authority

directs to

Court

Person

used to quash

What are Writs ?

WRITS Learning Aid : CPM HQ

Habeas Corpus (“to have the body of”)

Territory :

Certiorari (“to be certified”)

throughout Indian territory

territorial jurisdiction

narrower

o

als

preventive

Higher court

directs to

outside

lower court / tribunal

within if

curative Mandamus (“to command”) Court

directs to

inactivity directs

Public official

perform official duties

directs

activity

Prohibition (“to forbid”) Higher court

directs to

transfer a case to itself

Art. 32 → is a Compulsion: FR SC can’t refuse its use of writ jurisdiction

lower court / tribunal

not exceed its jurisdiction

Writ

Can be issued against judicial/quasi judicial bodies

Certiorari

Prohibition

administrative authorities

judicial/quasi judicial bodies

Can NOT be issues against / in case of since 1991

Writ

adm/ legislative authorities private individuals / bodies

cause of action is in

quash an order

or

Can be issued against Public official / body

Mandamus

adm/ legislative authorities

corporations inferior court / tribunal govt

public authorities public office created by statute/constitution

ministerial/private office

Art. 226 → not a FR HC may refuse to use its writ jurisdiction

Can NOT be issues against / in case of private individuals / bodies if duty is discretionary CJ of HC / President / Governor departmental instructions not having statutory force enforcing contractual obligations

private individuals / bodies

Quo Warranto

not a must

Habeas Corpus Private individuals

detention that is lawful / outside court’s jurisdiction / is by a competent court / is for contempt of court or legislature Page 2-11

Fundamental Rights Article 34 has been covered in the notes of National Emergency

Article 33

Article 35

aim

restrict/abrogate

Article 31

power to

be c halle

e.g.

nge

to d

Army Act, BSF Act, etc impose restrictions on freedom of

speech, association, talking to press, etc

on ground of contravention of any FR

* includes army, para military forces, police forces, intelligence agencies, etc and even their non-combatant employees like cooks,tailors, etc

aim

(along with Art. 19(1)(f) related to property

Other FRs are self executory

44th CAA’ 1978

make laws/give effect to certain FRs

sta

23 32, 33, 34, 35

impose reasonable restrictions

balance b/w

who decides if they are reasonable ?

Individual Liberty

Courts

Social Control

State action only

commerce

OR

agricultural land reforms

if violated by pvt individuals

can’t be

State action as well as private individuals if violated

only ordinary legal remedies are available

Constitutional remedies are available

curtailed/repealed by Pt but

during

Suspension

without affecting basic structure by

Article 31-A

Any act/law placed in 9th schedule wide

Article 31-B

CAA Act (not ordinary act)

National Emergency on grounds of

r sco

pe

Exception to FRs

SC (I.R.Coelho Case, 2007) Judicial Review

is

A basic feature

Article 31-C

All laws placed in 9th schedule after Keswanand Verdict ( about basic structure) i.e. 24 Apr’ 1973

Any law to implement Article 39 (b and c) of DPSP

NOT to be void

but

Amendability

e

industry

protection to FRs like approaching the SC directly is no more available to this right

So

b can

5 categories of laws related to

challenged on grounds of violation of FRs

Available against

absolute

made a by

legal right

Articles 16, 17

te ca n

Art. 300-A (Part - XII)

saves

Most FRs t

from

uniformity throughout India

Some important Features / Significance of FRs

no

Article 19

repealed

(and NOT state legislatures) can't

Article 14

transferred to

Parliament

FRs of armed forces *

Right to Property

.

Pt can

i.e

proper discipline/ discharge of duties

except :

external aggression

armed rebellion

Art. 19, 20, 21

Art. 19, 20, 21

if violative of

Art, 14,15, 19,21 or ‘Basic Structure’

open to

challenge in court

on grounds of contravention of Art. 14 or 19

Page 2-12