FUNDAMENTAL RIGHTS | UPSC EXAM

INTRODUCTION

Article 12 to 35 in Part III of the Constitution is described as Magna Carta of India. It consists of the elaborative description of the Fundamental Rights. These rights are inspired by the Bill of Rights as given in Constitution of USA.

The fundamental rights are guaranteed by the Constitution to all persons without any discrimination.

Fundamental rights are significant because:

It sustains equality for all individuals.
promotes unity among citizens and larger public interest
It safeguards liberty of the individuals from the authoritative nature of the State.
It guarantees establishment of political democracy.
It restricts establishment of despotic rule of executive and legislative system.
Thus, the fundamental rights contribute in building a ‘rule of land’ not ‘rule of man’.

These rights are protected by the Constitution which itself is the fundamental law of the land. It ensures the overall moral, spiritual, mental, physical and material development of the individual to live a dignified life.

The original Constitution had seven fundamental rights. But ‘right to property’ was removed later by the 44^th Constitutional Amendment Act 1978 and became a constitutional or a legal right under Article 300A (Part XII) of the Constitution which says that under this law no person can be deprived of property. Hence, now there exists only six fundamental rights.

FEATURES

The fundamental rights are not absolute in nature but qualified. It means that the state can impose restrictions on these rights if required but the validity of the restrictions should be reasonable and can be challenged in the court of the law.
There are few rights available only to the citizens of the land while others can be availed by the foreigners, citizens, companies and corporations.
These rights are negative in nature as it prevents the state from performing arbitrary actions and gives priority to individuals. In case of an offence by an individual, ordinary legal remedies are available not the constitutional remedies.
The fundamental rights are justiciable in nature as it allows a person to move to the court in case of its violation.
The fundamental rights are defended and guaranteed by the Supreme Court i.e., the aggrieved person can directly go to Supreme Court (under Article 32) in case of violation and not by way of appeal.
These are not permanent as they can be amended by the Parliament under Article 368. But it should not disturb the basic structure of the constitution.
All fundamental rights, except Article 20 and 21, can be suspended during the National Emergency (under article 352) that is declared only due to war and external aggression.
Most of them are directly enforceable, while some need to be enforced through the legislative acts by the Parliament (not state legislature).

SIX FUNDAMENTAL RIGHTS

Right to Equality

Article 14: Equality before law and equal protection of the laws

Equality before law adopted from British constitution
American Constitution inspired equal protection of the law.
According to A.V Dicey – ‘The equality before law is an element of the concept of ‘Rule of law’.
The Supreme Court declared Rule of Law as the ‘basic structure’ of the constitution.
Exceptions to Article 14:

President and Governor in office do not fall under this.
No criminal proceeding against the President or Governor during the term of office.
Civil proceedings can be initiated against President or Governor but only after expiration of two months’ notice.
Article 31C, provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”.
The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from criminal and civil proceedings.
The UNO and its agencies enjoy the diplomatic immunity.

Article 15: Prohibition on discrimination on grounds of religion, race, caste, sex or place of birth.

Article 15(5): The state has right to make any special provision for the development of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes for their admission into educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions. – provision was added by the 93rd Constitutional Amendment Act (2005).

Article 16: Equality of Opportunity in Public Employment

Mandal case:

The Second Backward Classes Commission (1979) headed by B.P Mandal (under Morarji Desai govt.) recommended 27% reservation for OBCs.
V.P Singh Government, declared 27% reservation for OBCs in 1990.
In 1991, the Narsimha Rao Government tweaked the order and along with 27% reservation for OBCs brought 10% reservation for poorer section in upper castes.
In the Mandal case (Indira Sawhney vs Union of India) (1992), the Supreme court reviewed the order and rejected 10% reservation for poorer section in higher castes.

The 27% reservations for OBC were considered constitutionally valid and was accepted with certain conditions such as:

No reservation in promotions. (overruled by the 77th Constitutional Amendment Act 1995 – provided for reservation in promotion in favour of SC and STs) (85th Constitutional Amendment Act 2001 established ‘consequential seniority)
Total quota for reservation must not exceed above 50% except in certain extraordinary conditions.
‘Carry forward rule’ to fill backlog vacancies was accepted but must not violate 50% rule. (Overruled/Nullified by 81st Constitutional Amendment Act 2000.)
A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs. – National Commission for Backward Classes was established in 1993 by an act of Parliament and Ram Nandan Committee was appointed to identify the creamy layer among the OBCs. It submitted its report in 1993, which was accepted.
The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 per cent of reservation.
103rd Constitutional Amendment passed in 2019 enabled 10 per cent reservation for the economically weaker sections in educational institutions and in appointments.

Article 17- Abolition of Untouchability

In 1976, an amendment was done in the Untouchability Offences Act 1955 and was termed as Protection of Civil Rights Act (1955).
Both private individuals and the state, can be charged under this Act.

Article 18 – Abolition of Titles

It restricts citizens from holding any title in following way:

No title shall be conferred by the State except in the case of military or academic distinction.
No citizen can accept any title from any foreign state.
Any person who is not a citizen of the country but holding any office of profit or trust under the state, cannot accept any title from any foreign state without the consent of the President of India.
A person who is citizen of India, holding any office of profit or trust under the state shall not accept any present, emolument, or office of any kind from or under any foreign state without the consent of the President of the India.

Awards such as Padma Bhushan, Bharat Ratna, Padma Shri, Padma Vibhushan were established in 1954.
The Janata Party Government in 1977 discontinued it, however they were reinstated in 1980 by Indira Gandhi government.

Right to freedom

Article 19 – Freedom of speech and expression

It guarantees six rights to all citizens. These are:

(i) Right to freedom of speech and expression.

(ii) Right to assemble peaceably and without arms.

(iii) Right to form associations or unions or co-operative societies.

(iv) Right to move freely throughout the territory of India.

(v) Right to reside and settle in any part of the territory of India.

(vi) Right to practice any profession or to carry on any occupation, trade or business.

The rights are available only to Indian citizens and not to foreigners
The rights guarantee action only against state action and not to private individual.

Article 20: Protection in respect of conviction for offences

A person cannot be convicted of any offence without any violation of the law in force at the time of the Act charged as an offence.
A person cannot be given a penalty greater than his offence
A person cannot be prosecuted and punished for the same offence more than once.
A person accused of any offence shall not be forced to be a witness against himself.

Article 21 – Protection of life and personal liberty

Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law.
The fundamental right is available to both citizens and non-citizens.
American Constitution provides right to life under ‘due process of law’.
86th Constitutional Amendment Act 2002 added Right to Education (Article 21A) that made education a fundamental right. It provided for a free and compulsory education to be provided by the State to all children from the age of 6 to 14 years.
To enact Article 21A, the Parliament brought forward the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This Act seeks to provide that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school.

Article 22 – Protection against arrest and detention

Article 22 grants protection to the arrested or detained persons.
Article 22 has two parts – dealing with punitive detention laws and preventive detention laws respectively.
Punitive detention is given to a person for an offence committed by a person based on trial and conviction in the court of law.
Preventive detention is given to a person as a precautionary measure based on suspicion to prevent committing of offence by a person in the future.
Examples of Preventive detention laws in India:

Preventive Detention Act, 1950. Expired in 1969.
Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.
National Security Act (NASA), 1980.
Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.
Prevention of Terrorism Act (POTA), 2002.

Repealed in 2004.

Right against Exploitation

Article 23, prohibits traffic in human beings and any form of forced labour and make it a punishable offence.
This right is available to both citizens and non-citizens. It protects the individual not only against the State but also against private persons.
Article 24, prohibits the employment of children below the age of 14 years in any factory, mines or any other hazardous employment.
The Commissions for Protection of Child Rights Act, 2005 was enacted to establish Commission for protection of child rights at Central and State level.

Right to Freedom of Religion

Article 25 – Subject to public order, morality and health and other provisions of this Part, every citizen or non-citizen in the territory has equal right to freedom of conscience and right to profess, practice, and propagate religion.

Article 26 – According to this, every religious denomination or any of its section shall have the following rights:

Right to establish and maintain institutions for religious and charitable purposes.

(b) Right to manage its own affairs in matters of religion.

property.

(d) Right to administer such property in accordance with

law.

Article 27 – It lays down that no person shall be forced to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. This provision prohibits only levy of a tax and not a fee.

Article 28 – It gives freedom of attending religious instructions or worships in educational institutions. It says no religious instruction shall be provided in educational institution wholly maintained out of State funds. However, this provision allow institution established under any endowment or trust, requiring imparting of religious instruction in such institution.

Cultural and Educational Rights

Article 29 – It provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language.

The first provision protects the right of a group while the second provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs.

Article 30 – grants the following rights to religious or linguistic minorities,

(a) All minorities shall have the right to establish and administer educational institutions of their choice.

(b) The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as a Fundamental Right (Article 31).

In granting aid, the State shall not discriminate against any educational institution managed by a minority whether religious or linguistic minority.

Unlike Article 29, Article 30 solely guarantees rights to the minorities.

Right to Constitutional Remedies

Article 32 – It provides for the constitutional remedies in case of violation of the fundamental rights. Under this act, the aggrieved person can directly go to the Supreme Court for justice with respect to violation or exploitation of fundamental rights by state or in certain case by private individuals.

BR Ambedkar considered it to be the most important article of the constitution and described it as the very heart and soul of the Constitution.

Reason being that the Article 32 provides individuals to reach the Supreme court in case of any arbitrary actions on the life, liberties and dignity of the individuals by the State. The Supreme Court have power to issue directions or orders or writs like habeas corpus, mandamus, prohibition, certiorari and quo warranto. for the enforcement of any of the fundamental rights.

The concept of writs was borrowed from the English law where they are called as the ‘prerogative writs’.

Habeas Corpus: It literally means ‘to have the body of’. It is an order issued by the court to present the person who has been detained to check the cause and legality of the detention. The person is freed on the illegal detention. It is a significant writ and issued to protect individual liberty from arbitrary detention by the state or even private individuals.

Mandamus: It means ‘we command’. It is a directive issued by the court to public servant/official who has failed in performing his duties or refused to perform.

It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.

Prohibition: It means ‘to forbid’. It is issued by a higher court to a lower court or tribunal to prevent them from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity.

Certiorari: It means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself

or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.

Quo-Warranto: It means ‘by what authority or warrant’ and is issued by the court to examine into the legality of claim of a person to a public office. The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office.

Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

Article 33 – It empowers the Parliament to restrict the fundamental rights of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces. The objective of this provision is to ensure that armed forces discharge their duties and responsibilities properly.

Under Article 33, only the Parliament has power to make laws and not the state legislature. And thus, Parliament enacted Army Act, Navy, Air Force Acts in 1950 etc. These imposes restrictions on their freedom of speech and expression, association, right to attend public meetings and demonstrations, etc.

Article 34 – It provides for the establishment of martial law in the country which will lead to restrictions of the fundamental rights. The concept of martial law is borrowed from the English Law and it means suspension of civil administrative structure and take over by military apparatus for restoration of peace or order in the society which has been disrupted due to war, riot or rebellion etc.

Article 35 – It lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures. This ensures the uniformity of the nature all fundamental rights and punishment for their infringement throughout India.

Exceptions to Fundamental Rights

Article 31A – The article saves five categories of laws from getting challenged under Article 14 and Article 19. They are related to acquiring personal property for agricultural or land reforms, development of commercial sector or estates etc. The Article also talks about giving compensation at market rates to whose land will be acquired for development purpose by the state.

Categories are:

(a) Acquisition of estates and related rights by the State;

(b) Taking over the management of properties by the State.

(d) Extinguishment or modification of rights of directors Or shareholders of the corporations.

(e) Extinguishment or modification of mining leases.

Article 31B – The Article saves various legislations or provision by including them in Ninth Schedule from getting challenged on grounds of contravention under any fundamental rights. Unlike Article 31A, any provision can be included in Ninth Schedule to save it from judicial review. However, in I.R. Coelho case (2007) the Supreme Court ruled that there cannot be blanket immunity from judicial review as it is a ‘basic feature’ of the constitution. It said post 24th April 1973 (Kesavananda Bharati case – when the doctrine of basic structure was invented), every provision or acts in 9^th schedule can be challenged in court if they violated fundamentals rights guaranteed under Articles 14, 15, 19 and 21 or the ‘basic structure’ of the constitution.

Article 31C – It was added in the constitution by the 25th Amendment Act of 1971, and contained the following two provisions:

(a) No law that seeks to implement the socialistic directive principles specified in Article 39(b) or (c)shall be void on the ground of contravention of the fundamental rights conferred by Article 14 (equality before law and equal protection of laws) or Article 19 (protection of six rights in respect of speech, assembly, movement, etc.)

(b) No law containing a declaration that it is for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy.

In the Kesavananda Bharati case (1973), the Supreme Court declared the above second provision of Article 31C as unconstitutional and invalid on the ground that judicial review is a basic feature of the Constitution and hence cannot be taken away. However, the above first provision of Article 31C was held to be constitutional and valid. The 42nd Amendment Act (1976) extended the scope of the above first provision of Article 31C by including within its protection any law to implement any of the directive principles specified in Part IV of the Constitution and not merely in Article 39 (b) or (c). However, this extension was declared as unconstitutional and invalid by the Supreme Court in the Minerva Mills case (1980)

Important points to note:

While criticizing the Fundamental rights as being complicated for the layman and thus very vague with no clarity, Sir Ivor Jennings called the Constitution of India a ‘paradise for lawyers’ as one need a lawyer to understand it provisions.
A V Dicey wrote book called Introduction to the Study of the Law of the Constitution.

FUNDAMENTAL RIGHTS | UPSC EXAM