ü
These are enshrined in Part III of the Indian
Constitution under Articles 12 to 35.
ü
These were borrowed from the US constitution
(Bill of Rights).
ü
According to Dr. B R Ambedkar it is the most
criticized part of the Constitution.
ü
The fundamental rights are justifiable.
ü
In the original Constitution 7 Fundamental
Rights are mentioned.
·
Right to Equality (14-18)
·
Right to Freedom (19-22)
·
Right Against Exploitation (23-24)
·
Right to Freedom of Religion (25-28)
·
Cultural and Educational Rights (29-30)
·
Right to property (31) (Deleted through the 44th
amendment)
·
Right to Constitutional Remedies (32).
ü
In the year 1978, through 44th
amendment act Right to property was deleted from the list of Fundamental
Rights.
ü
Now it is a legal right under Article 300 A in
part XII of the constitution.
ü
The numbers of Fundamental Rights are 6 in the
present day Constitution.
ü
The state can impose restrictions on Fundamental
rights. (They are not absolute but qualified).
ü
Except Fundamental rights guaranteed under
Articles 20 and 21 remaining Fundamental rights can be suspended during operation
of National Emergency.
ü
Article 19 can be suspended only when emergency
is declared on the grounds of war or external aggression and not on the grounds
of armed rebellion.
ü
Article 12 explains the state. The state
includes
·
The government and the parliament of India
·
The government and the state legislature
·
All local authorities (municipalities, Panchayat
Raj, District boards, etc)
·
Other statutory and non statutory authorities
(LIC, ONGC etc).
ü
The actions of the state (all the above said)
can be challenged in the courts as the violation of Fundamental Rights.
ü
Article 13: All laws that are inconsistent with
or in derogation of any of the Fundamental Rights shall be void.
ü
This article expressively provides for the
doctrine of judicial review. This power is conferred to SC (Article 32)
and High Courts (Article 226) that can declare a law unconstitutional and
invalid on the grounds of contravention of any of the fundamental Rights.
ü
Note: The words “Judicial Review” are not
mentioned in the Constitution.
ü
RIGHT TO EQUALITY (14-18)
ü
Article 14: Equality before law and equal
protection of laws.
·
Equality before law: The absence of any special
privileges in favor of any person
·
Note: Equality before law is taken from the
British Constitution.
·
Equal Protection of Laws: The equality of
treatment under equal circumstances.
·
Note: This is taken from the US Constitution.
ü
Article 15: Prohibition of discrimination
on the grounds only of religion, race, caste, sex, or
place of birth. (Access to various places).
·
Exceptions:
·
Special provisions for children and Women
·
Socially and economically backward sections
·
Scheduled castes
·
Scheduled Tribes
ü
Article 16: Equality of opportunity in matters
of Public employment.
ü
Article 16(4) empowers the state to make special
provisions for the reservation of appointments or posts in favour of any
“backward class of citizens” which in the opinion of state are not adequately
represented in the services of the state.
ü
Article 17: Abolition of un-touch-ability and
prohibition of its practice.
ü
Accordingly the Parliament passed Untouchability
(offences) Act, 1955.
ü
In the year 1976, this act is renamed as Civil
Rights Act, 1955.
ü
ARTICLE 18: Abolition of titles except
military and academic.
Note: On December 23, 2013 the High Court of Andhra Pradesh ordered two cinema personalities Mohan Babu and Bramhanandam to surrender 'Padma Sri' to the President.
Note: On December 23, 2013 the High Court of Andhra Pradesh ordered two cinema personalities Mohan Babu and Bramhanandam to surrender 'Padma Sri' to the President.
ü
RIGHT TO FREEDOM (19-22):
ü
ARTICLE 19: Protection of 6 rights.
·
Right to freedom of speech and expression 19 (1)
(a)
(freedom of expression means the
right to express one’s opinion by words of mouth, writing, printing, picture,
or in any other manner)
·
Right to assemble
peacefully and without arms
·
Right to form associations
·
Right to move freely throughout the territory of
India
·
Right to reside and settle in any part of the
territory of India
·
Right to practice any profession or to carry on
any occupation, trade or business
·
Right to acquire, hold, and dispose of property
(deleted through 44th amendment)
|
Note: On November 20, 2012 the Maharashtra police arrested
2 women (Shaheen and her friend) for twitting in Facebook for the expression of
their opinion after the demise of Shivasena leader Bal Thackery. This was
objected many as the violation of article 19 (1) (a) of the Indian
Constitution.
ü
Article 20: Protection in respect of
conviction for offences.
·
No ex-post-facto Legislation:
·
No Double Jeopardy
·
No Self-incrimination
ü
Article 21: Protection of life and personal
liberty except in accordance with the procedures established in law.
·
Right to live with human dignity, decent
environment, privacy, free education up to 14 years etc.
ü
Article 21 A: Right to free and compulsory education
for all the children.
ü
Note: This was present in Article 45 of the
constitution. Through 86th amendment in 2002 it was made a
fundamental right. This came into force on April 1, 2010.
ü
Article 22: Protection against arrest and
detention in certain cases.
ü
Under punitive detention: right to be informed
of the grounds of arrest, consult a legal practitioner, and produce before the
magistrate within 24 hours.
ü
Under preventive detention: grounds of detention
should be communicated, provide an opportunity to make representation.
ü
RIGHT AGAINST EXPLOITATION (23-24):
ü
Article 23: Prohibition of traffic in human
beings and forced labor.
ü
Article 24: Prohibition of employment of
children in factories.
ü
RIGHT TO FREEDOM OF RELIGION (25-28):
ü
Article 25: All persons are equally entitled
to
freedom of conscience,
·
the right to freely
ü
profess
ü
practice
ü
And propagate religion.
ü
Note: Propagation does not include ‘forced
conversions’.
ü
Article 26: Freedom to Manage Religious
Affairs:
·
To establish and maintain institutions for
religious and charitable purposes
·
Own and acquire movable and immovable property
·
Right to administer the property
ü
Article 27: Freedom for Taxation for promotion
of a religion.
·
No person shall be compelled to pay taxes for
the promotion and maintenance of any religion.
ü
Article 28: Freedom from attending religious
instruction.
·
No religious instruction shall be provided in
any educational institute wholly maintained out of state funds.
·
Religious instructions permitted if it is
established by endowments or trust.
Article 28(3): No person attending any
educational institution recognised by the State or receiving aid out of State
funds shall be required to take part in any religious instruction that may be
imparted in such institution or to attend any religious worship that may be
conducted in such institution or in any premises attached thereto unless such person
or, if such person is a minor, his guardian has given his consent thereto.
ü
CULTURAL AND EDUCATIONAL RIGHTS (29-30):
Article 29: Right to conserve language, script
or culture.
·
The Article 29 grants protection to both
religious and linguistic minorities.
ü
Article 30: Right of Minorities to Establish
and administer Educational Institutions:
·
All Minorities have the right to establish and
administer educational institutions of their choice.
RIGHT TO CONSTITUTIONAL REMEDIES (32):
ü
The Supreme Court and High Courts can issue
writs.
ü
Right to move Supreme Court for the enforcement
of Fundamental Rights including the writs of Habeas corpus, Mandamus,
Prohibition, Certiorari and Quo warren to.
ü
Under Article 359 of the constitution provides
the right to move Supreme Court can be suspended during national emergency.
v
According B R Ambedkar Article 32 is the heart and soul of the
Indian Constitution.
|
ü
HABEAS CORPUS: (TO PRODUCE THE BODY).
ü
This means produce the body.
ü
It is an order issued by the court to a person
who has detained another person, to produce the body of the latter before it.
Hence this is against arbitrary detention. This can be issued to a private
person or public authorities.
ü
Mandamus: (To Command): Issued to a public
official asking him to perform his official duties that he has failed or
refused to perform. (this cannot be issued against President or Governor or CJ
of a HC or against any private person).
ü
Prohibition: (to forbid): Issued by a higher
court to a lower court or tribunal to prevent the latter from exceeding its
jurisdiction or usurping a jurisdiction that it does not possess.
ü
Certiorari (To be certified or to be
informed): Issued by a higher court to a lower court or tribunal either to
transfer case pending with the latter to it or to squash the order of the
latter in a case.
ü
Quowarranto (By what Authority?): It is issued
by a court to enquire into the legality of claim of a person to a public
office.
ü
NOTE: Under Representation of Peoples Act of
1951 a person is allowed to contest from not more than 2 constituencies. In the
year 2001 the leader of AIADMK Jayalalitaa contested from 4 constituencies (Andipatti,
Krishnagiri, Bhuvanagiri and Pudukottai). On November 20, 2012 the Supreme
Court quashed a criminal proceeding against CM J Jayalalithaa initiated for
filing 4 nomination papers in the 2001 assembly polls and asked Madras High
Court to re-examine its order to lodge the case against her.
ü
Note: As per SC the HC of Madras did not
consider the 2 reports of the Returning Officer were not considered while
passing the order.
The SC asked HC to examine the issue in 4 months. The SC order came on Jayalalithaas plea against the HC order to Election Commission to register a criminal case.
The SC asked HC to examine the issue in 4 months. The SC order came on Jayalalithaas plea against the HC order to Election Commission to register a criminal case.
ü
Note: All the 4 nominations of Jayalalithaas
were rejected as she had been disqualified from contesting the polls at the
that time due to her conviction in the TANSI land deal case. A former DMK MP C
Kuppuswamy moved HC against her and the
HC in June 2007 directed the EC to register a case and the same was stayed by
the SC in July 2007.
ü
The HC held that jayalalithaas declaration in 3rd
and 4th constituencies (Bhuvanagiri and Pudukottai) that she has not
been nominated from more than 2 segments was false to her own knowledge and
amounts to violation of section 33 (7) (b) of the RPA as per which a candidate
cannot contest from more than 2 constituencies.
ü
Article 33: The Parliament is empowered to abrogate the
fundamental rights of the members of armed forces, Para-military forces, police
forces, intelligence agencies and other related agencies.
ü
Note: The law made by the Parliament under
Article 33 cannot be challenged in the court of law
ü
Article 34: This provides for the restriction
of the fundamental rights while martial law is in force in any area within the
territory of the country.
ü
Article 35: The Parliament makes laws to give
effect to certain specified fundamental rights shall vest only in Parliament
and not in the state legislature.
ü
As per the provisions of the Article 35 the Parliament
prescribes residence as a condition for certain employments or appointments in
a state or union territory or local authority. (Article 16).
ü
The Parliament can empower the lower courts
(Other than Supreme Court and High Courts) to issue directions, orders, and
writs of all kinds for the enforcement of the fundamental rights.
KALYANSIR.COM
MISCELLANEOUS:
ü
The concept of Martial Law has been borrowed
from the English Common Law.
ü
The words “Martial law” is not defined in the
Constitution. The literal meaning is military rule.
ü
Martial law is imposed to restore the breakdown
of law and order due to any reason.
ü
The concept of “Equality before law” is taken
from UK.
ü
The concept of “Equal Protection of Laws” taken
from USA.
ü
The term ‘untouchability’ is not defined in the
constitution.
ü
The term minority is not described in the
constitution.
ü
The writs were borrowed from English law and
they are known as prerogative writs.
ü
Right to Privacy (Article 21): The Supreme Court
in the PUCL vs Union of India in 1997, had ruled that telephone conversation in
private, without interference, would come within the purview of right to
privacy as mandated in the Constitution; and unlawful means of phone tapping
amounted to invasion of privacy and were uncivilized and undemocratic in
nature.
ü
The Supreme Court ruled that the right to life
under Article 21 of the Constitution would include a pollution free
environment.
ü
In January 2012 the Supreme Court observed that
the right to life and liberty guaranteed to a citizen under Article 21 of the
Constitution cannot be taken away without following the due procedure. The mere
apprehension of the authorities that an accused was likely to be released on
bail was not a ground for passing preventive detention orders.
ü
As per the directions given by the Supreme
Court, under RTE (Right To Education) Act all the Private schools will have to
provide 25 percent reservation for poor students from the academic year 2012
-13.
ü
Bombay
High Court (October 29, 2013) on Article 28 (3): In 2008 Sanjay Salve
an English teacher in Savitri Bhai Phule secondary school, Nasik was refused to
fold his hands at prayer time in the school. The school has frozen his
increments. He took the school to the court. The court ruled that the folding
of hands at prayer time in state-funded schools could not be imposed on
individuals as it went against Article 28 (3). Justice Abhay oka ruled that
salve should respectfully remain present at prayers.
KALYANSIR.COM