Fundamental Rights, Duties and Directive Principles
FUNDAMENTAL RIGHTS
•• Fundamental
rights under Articles 15, 16, 19, 29 & 30 are applicable to Indian
citizens.
•• The Fundamental Rights guaranteed by Articles
14,20,21, 21A, 22, 23, 24, 25, 26, 27 and 28 are available to all persons
whether citizens or foreigners.
•• Some
fundamental rights are negatively worded as prohibitions on the State like
Articles - 14, 15(1), 16(2), 18(1),
20, 22(1) and
28(1)
•• Fundamental
rights which impose absolute limitations upon the legislative power cannot
be regulated by the legislature are covered by Articles 15, 17, 18, 20 and 24.
•• All fundamental
rights are guaranteed against state action.
•• If Rights under
Article 19 and Article 21 are violated by an individual, legal remedies but not
Constitutional remedies are available.
•• Article 12
defines the State which includes:
1. Government and
Indian parliament i.e. executive and Legislature of the Union.
2. Government and
legislature of the states.
3. All local and
other authorities within the territory of India.
4. All local and
other authorities under the control of GOI.
5. All other
statutory or non-statutory authorities like LIC, ONGC, SAIL etc.
According to the
Supreme Court, even a private body or an agency working as an instrument of the
state falls within the meaning of the ‘state’ under Article-12.
•• Article 13
confers the power of judicial review to the courts of all legislative acts.
•• Supreme Court
of India and State High Courts have this power under Article 32 and 226. They
can declare a law
unconstitutional
if it is inconsistent with Part III of the Constitution.
•• Power of
judicial review is derived from Article - 13.
The term ‘Law’ in
Article-13 includes:
(i) Permanent laws
enacted by state Legislature/Parliament.
(ii) Temporary
laws i.e, ordinances issued by the President or Governor.
(iii) Statutory instruments
in the nature of delegated legislation.
(iv)
Non-legislative sources of law.
Article-13
declares that a Constitutional amendment is not a law and hence can not be
challenged.
However as per the
Supreme Court’s ruling in the Kesavananda Bharti case (1973), a constitutional
amendment
can be challenged
on the ground that it violates a fundamental right that forms a part of the
‘basic structure’ of the constitution and hence can be declared null and void.
ARTICLE-14:
Equality before law/Equal protection of Laws
•• Equality before
law and equal protection of laws are different.
Equality Before
Law
|
Equal Protection
of
Law
|
Negative concept
|
Positive concept
|
Absence of
special privilege due to birth, creed or like in the favour of any person.
There is equal treatment before law.
|
Right to
equality of treatment in similar
circumstances.
|
Dicey’s concept
of rule of law.
|
Treated as due
process of law.
|
Established law
in England.
|
An American
concept.
|
‘Rule of Law’
is the “Basic Feature” of the Constitution which cannot be destroyed even by
constitutional amendment under Article 368.
Exceptions to Rule of
Law:
361
|
Immunity to the
President of India and State Governors.
|
361(1)
|
President of
India and state Governors are not answerable to any court for exercise and
performance of their powers and duties.
|
361(2)
|
No criminal
proceedings can be initiated against President of India and state Governors
during their term of office.
|
361(4)
|
No civil
proceeding can be instituted during the term of office in respect of
any act done by
President of India and State Governor in their personal capacity before or
after they enter office till 2 months after the notice has been delivered to
the President.
|
The foreign
ambassadors and diplomats enjoy immunity from criminal and civil proceedings.
The UNO and its agencies enjoy the diplomatic immunity.
|
·
Concept
of equality provides protection against arbitrariness.
·
Concept
of equality promotes natural justice.
·
Right
to Equality incorporates Equal pay for equal. Work [Art 39(d)]. This is not a
fundamental right but a constitutional goal under Articles 14, 16 and 39(d).
ARTICLE 15:
Prohibition of discrimination on certain grounds:
Article
|
Provision
|
15 (1)
|
No
discrimination on grounds of religion, race, caste, sex or place of birth can
be made. It applies to matters under the control of the state.
|
15 (2)
|
Prohibits
discrimination at public places (shops, public hotels, restaurants, well,
tanks, bathing ghats etc.) and applies both to state and private individual.
|
15 (3)
|
Provisions for
protection of women & children.
|
15 (4)
|
Provisions to
protect interests of backward classes, 1st amendment Act, 1951.
|
There are 3
exceptions to the rule of non-discrimination:
1. The state can
make any special provision for women and children.
2. The state can
make any special provision for the advancement of any socially and
educationally backward classes
of citizens.
3. The state is
empowered to make any special provision for the advancement of any socially and
educationally backward classes of citizens.
Note: This provision was
added by the 93rd Amendment Act of 2005.
ARTICLE 16:
Equality of opportunity in public employment
Article
|
Provision
|
16(1) and (2)
|
No
discrimination in public employment on grounds of religion, race, caste, sex,
descent, place of birth or residence.
|
16 (3)
|
Residence within
a state is a qualification for appointment for any government
post.
|
16 (4)
|
For reservation
of posts in govt. jobs in favour of any backward class.
|
16 (5)
|
Provides for the
incumbent of any office, in connection with the affairs of
any religious or
denominational institution or any member of the governing
body shall be a
person professing a particular religion or belonging to a particular
denomination is not a violation of the constitution.
|
Mandal Commission
The Second
Backward Classes Commission was appointed under the chairmanship of B. P.
Mandal in 1979 to investigate the conditions of the socially and educationally
backward classes and suggest measures for their advancement. The Mandal Commission
in its report identified as many as 3743 castes as socially and educationally
backward classes.
The Mandal
Commission recommended for reservation of 27% government jobs for the other
Backward classes
(OBCs).
Subsequently Ram
Nandan Committee (1993) was appointed to indentify the Creamy Layer among the
OBCs.
•• National
commission for Backward classes was established in 1993 by an act of
Parliament.
Note: The 76th Amendment
Act of 1994 has placed the Tamilnadu Reservations Act of 1994 in the Ninth Schedule
to protect it from judicial review as it provided for 69 percent of reservation
for exceeding the 50 percent ceiling.
ARTICLE 17 &
18: Abolition of Untouchability and Titles
Article
|
Provision
|
17
|
Abolition of
Untouchability. The parliament has passed protection of civil rights act,
1955 to abolish untouchability.
|
18
|
Abolition of
Titles except military and academic titles, i.e, Bharat Ratna, Padma
Vibhushan, Padma Shri and National Awards.
|
The Supreme Court
held that the right under Article-17 is available against private individuals
and it is the constitutional obligation of the state to take necessary action
to ensure that this right is not violated.
In 1996, Supreme
Court upheld the constitutional validity of the National Awards – Bharat Ratna,
Padma Vibhushan, Padma Bhusan and Padma Shri i.e. the court held that these
awards do not amount to ‘titles’ within the meaning of Article-18.
ARTICLE 19
•• Provides for 6
fundamental rights in the nature of freedoms. These are guaranteed to Indian
citizens with reasonable restrictions.
FREEDOM
|
RESTRICTION
|
||
19(1)(a)
|
Speech &
Expression
Freedom of Press
& Media. People’s
Right to
Information
|
19 (2)
8 grounds for
restriction
|
Integrity and
sovereignty of India
|
Security of the
state
|
|||
Friendly relations
with foreign states
|
|||
Public order
|
|||
Decency and
morality
|
|||
Contempt of
court
|
|||
Defamation
|
|||
Incitement to an
offence
|
|||
19(1)(b)
|
Freedom
to assemble
peacefully
|
19(3)
3
Grounds for
restriction
|
Assembly must be
peaceful.
|
Assembly must be
unarmed
|
|||
Restriction
under
Art 19 (3):
Sovereignty and
integrity of
India
Public order
|
|||
19 (1)(c)
|
Form
Freedom
to Associations
|
19 (4)
3
Grounds for
restriction
|
Sovereignty and
integrity of
India
|
Public order
|
|||
Morality
|
|||
19 (1)(d)
|
Freedom
of Movement
|
19 (5)
2
Grounds for
restriction
|
Interest of
general
public
|
Protection of
interests
of any Scheduled
Tribe
|
|||
19 (1)(e)
|
Freedom
of Residence
|
19 (5)
2
Grounds for
restriction
|
Interest of
general
public
|
Protection of
interests
of Scheduled
Tribe.
|
|||
19 (1)(f)
|
Freedom
of Profession,
Occupation,
Trade or Business
|
19 (6)
|
By the state
making
any law relating
to:
Protecting
Public
interest.
|
Establishing
professional/
technical
qualifications
for a
profession/
occupation,
trade or
business.
Enabling state
to
conduct any
trade or
business
excluding
citizens wholly
or
partially.
|
These six rights
are protected against only state action and not private individuals.
Freedom of speech
and expression includes:
•• Freedom of the
Press.
•• Right to
Telecast.
•• Freedom of
Silence.
•• Right aganist
bundh called by a political party.
•• Right to
demonstration or picketing but not right to strike.
•• With reference
to freedom of Association the Supreme
Court held that
the trade unions have no guaranteed right to effective bargaining or right to
strike or right to declare a lock-out.
The freedom of
movement has two dimensions, i.e. internal (right to move inside the country)
and external (right to move
out of the country
and right to come back to the country).
•• Article-19
protects only the first dimension. The second dimension is dealt by Article-21
(right to life and personal liberty).
•• With reference
to freedom of profession, no objection can be made when the state carries on a
trade, business, industry or service either as a monopoly to the exclusion of
citizens or in competition with any citizen.
ARTICLE 20 :
Protection in respect of conviction for offences
•• Provides 3
safeguards to persons accused of crimes:
▪▪ Article 20
(1): Ex-Post facto law – no person shall be convicted of any offence except
for the violation of ‘law in force’. Such protection does not apply in case
of Preventive Detention.
▪▪ Article 20
(2): Double Jeopardy – no person shall be prosecuted and punished for the
same offence more than once.
▪▪ Article 20
(3): Prohibition against Self Incrimination
– no person accused
of an offence shall be compelled to be a witness against himself.
An ex-post-facto
law is one that imposes penalties retrospectively, that is upon acts already
done or which increases the penalties for such acts.
•• A civil
liability or a tax can be imposed retrospectively.
Article 21 and 22
: Protection of Life and Personal Liberty
•• Constitution
provides for a two fold guarantee:
▪▪ No person shall
be deprived of his life and personal liberty except according to the law (Article
21).
▪▪ Safeguards
against arbitrary arrest and detention (Article 22).
•• Prior to Menaka
Gandhi Case (1978), Article 21 guaranteed the Right to Life and Liberty against
arbitrary action of the executive. Article 21 now protects Right to Life and
Personal Liberty
even from legislative action. It includes –
•• Right to live
with human dignity.
•• Right to
livelihood.
•• Right to
privacy.
•• Right to
shelter.
•• Right to health
and Medical Assistance.
•• Right to free
legal aid.
•• Right against
solitary confinement.
•• Available to
‘citizens’ and ‘non-citizens’.
•• Right to
Education is a Fundamental Right under Article 21-A (86th constitutional
Amendment 2002).
•• Provision of
Compensation if Article 21 is violated.
•• Right to Death
is not a fundamental right under
Article 21.
ARTICLE 22:
Protection against Arrest and Detention
Article 22 grants
protection to persons who are arrested or detained. Detention is
of two types – punitive and preventive.
Punitive Detention
is
to punish a person for an offence committed by him after trial and conviction
in a Court. Preventive means detention of a person without trial and
conviction by a person for a past offence, but to prevent him from committing
an offence in the near future.
•• It includes
▪▪ Right to be
informed about the ground of arrest.
▪▪ Right to be
defended by a lawyer of his own choice.
▪▪ Right to be
produced before a magistrate within 24 hours.
▪▪ No detention
beyond 24 hrs except by order of the magistrate.
No law providing
for preventive detention shall authorize the detention of a person for a longer
period than 3 months unless - an advisory board consisting of persons who are
qualified to be appointed as judge of a High Court has reported before the
expiration of the said period of 3 months that their is in its option
sufficient cause for such detention.
•• This right is
not available to an enemy, an alien and a person arrested and detained under
Preventive Detention.
The 44th Amendment
Act of 1978 has reduced the period of detention without obtaining the opinion
of an advisory board from three to two months.
It is noteworthy
that no democratic country in the world has made preventive detention as an
integral part of the constitution as has been done in India.
Article 23 and 24:
Right Against Exploitation
•• Article 23: protects
individual against actions of the state and private citizens. This right is
available to both citizens and non-citizens.
•• Article
23(i): prohibits traffic in human beings and forced labour,
•• Article
23(ii): nothing in this article shall prevent state from imposing
compulsory services for public purpose and in imposing such service the state
shall not make any discrimination on grounds of religion, race, caste or class
or any of them.
•• Article 24: prohibits
employment of children below 14 years of age in a dangerous occupation, factory
and mines.
The expression
‘traffic in human beings’ include :
(a) Selling and
buying of men, women and children like goods.
(b) Immoral
traffic in women and children.
(c) Devadasis.
(d) Slavery.
Article-23 also
permits the state to impose compulsory service for public purpose, as for
example military service or social service.
The child Labour
(Prohibition and Regulation) Act,
1986 is the most
important law to enforce the rights granted under Article-24.
In 2006, the
government banned the employment of children as domestic servants or workers in
business establishments like hotels, dhabas, restaurant.
ARTICLE 25 and 28:
Right to Freedom of Religion
•• India, under
the constitution, is a “Secular State”, i.e. a state which
observes an attitude of neutrality and impartiality towards all religions.
•• There is no
“State religion” in India. State will not establish a religion of its own,
nor will it patronize any religion. This is implicit from:
▪▪ State will not
compel any citizen to pay any tax for promotion or maintenance of a religion or
religious institution (Article 27).
▪▪ No religious
instruction shall be provided in an educational institution run completely by
government funds.
▪▪ Religious
instruction can be imparted in educational institutions recognized by or
receiving aid from the state, no person attending such institution shall be
compelled to receive such religious instructions (Art 28).
•• Article 25 guaranteed
the Freedom of Conscience and Freedom to Profess, Practice and Propagate
personal religion.
•• Right to
‘Propagate’ under Article 25 gives the right only to disseminate the tenets of
religion but it would not include the Right to Convert.
•• States have
made it a penal offence to convert or attempt to convert a person by means of “force,
fraud or allurement”.
•• Volunteer
conversion with free consent is allowed.
•• Article 26 provides
rights to every religious group or denominations:-
▪▪ To establish
and maintain institutions for religious and charitable purposes.
▪▪ To manage its
own religious affairs.
▪▪ To own and
acquire movable and immovable property.
▪▪ To administer
such property in accordance with national laws.
Article-25 covers not only
religious beliefs (doctrines) but also religious practices (rituals).
Aricle-26 protects
collective freedom of religion. Like the rights under Article-25, the rights
under Article-26 are also subject to public order, morality and health but not
subject to other provisions relating to the Fundamental Rights.
Article-27 lays down that no
person shall be compelled to pay any taxes for the promotion or maintenance of
any particular religion or religious denomination.
In other words, the
state should not spend the public money collected by way of tax for the
promotion or maintenance of any particular religion.
Cultural and
Educational Rights
•• Article 29
(1) guarantees to citizens having a distinct language, script or culture of
its own, the right to conserve the same.
•• Article 30 provides
for the right to religious and linguistic minorities to establish and maintain
educational institution to conserve their language, script or culture.
•• Article 30
(2) prohibits the state from discriminating against any educational
institution in grant of aid. No citizen shall be denied admission to
educational institutions maintained by the state or receiving aid out of state
funds on grounds of religion, race, caste and language.
It is compulsory for
unaided private institutions to give reservations to backward classes. Minority
institutions are exempted from such obligation.
•• Article 29
applies only to citizens.
•• Article 30
applies to both citizens and non-citizens.
ARTICLE 31-A, 31-B
& 31-C
Article
|
Related to
|
Amendment
|
31 A
|
Facilitate
agrarian reforms
|
1st Amendment,
1951
|
31 B
|
None of the acts
mentioned in 9th Schedule shall be deemed to be void on the ground that they
are inconsistent
with Part III of
the constitution. Legislature is competent to amend and
repeal these
acts.
|
1st Amendment,
1951
|
31 C
|
Empowers
legislature to enact laws for implementing Directive Principles of State
Policy under Articles 39 (b) &
(c). Only
Articles 39(b) & (c) have over-riding effect over fundamental rights.
|
25th Amendment,
1971
|
•• Supreme Court
has viewed that 9th Schedule must come under Judicial
Review. Sates have passed acts regarding reservations, and placed them
under Schedule 9 to make them non-justiciable.
•• Right to
Property which was a fundamental right under Article 31, was repealed by 44th
Constitutional Amendment, 1978. It was made a Constitutional Right under
ordinary law under Article 300-A.
ARTICLE 32: Right
to Constitutional Remedies
Article-32 confers
the right to remedies for the enforcement of the fundamental rights of an
aggrieved citizen. In other words, the right to get the Fundamental Rights
protected is in
itself a
fundamental right.
•• It empowers a
person to approach the Supreme Court directly for the enforcement of his Fundamental
Rights.
•• Right to
Constitutional Remedies cannot be suspended except otherwise provided in the
Constitution, i.e. during Emergency.
•• Dr. Ambedkar
called this article “the very soul and heart of the constitution.”
WRITS UNDER
ARTICLE 32
|
|
Habeas corpus
means ‘to
produce
the body of’
|
Order to the
person who has detained another to produce the
detainee before
the court. This is issued to let the court know
the grounds of
confinement. This protects individual liberty.
It is a powerful
safeguard against arbitrary Acts not only
of private
individual but also of the Executive.
|
Mandamus means ‘a Command’
|
Commands a
public or quasi- public legal person to perform
his duty. The
writ of mandamus can be issued by the court to enforce Fundamental Rights:
whenever a public officer or a Government has committed an Act violating a
person’s Fundamental Rights, the court can restrain that authority from
enforcing such orders or committing such an act.
|
Prohibition means ‘to
forbid’
|
Issued by
Supreme Court or high court to a lower court forbidding it continue
proceedings in a case beyond its jurisdiction or exercise jurisdiction which
is not vested with it legally. The Supreme Court can issue the writ only
where a Fundamental Right is affected because of jurisdictional defect in
their proceedings.
|
Certiorari means
‘to be
certified’
|
Issued to a
lower court after a case has been decided by it
quashing the
decision or order. It ensures that the jurisdiction of an inferior court or
tribunals is properly exercised. While prohibition is available during the
pendency of the proceedings and before the order is
made, certiorari
can be issued only after the order has been
made under
similar circumstances.
|
Quo Warranto means ‘what
is
your authority’
|
Issued by the
court to enquire into the legality of claim which a person asserts to a
public office.
The writ of quo
warranto enables the public to see that a
public office is
not usurped by an unlawful claimant.
|
▪▪ Article 226 gives
power to High Court to issue writs.
▪▪ Article 32 is
used for the enforcement of fundamental rights only, Article 226 is helpful
for “any other purpose” also.
While the Supreme
Court can issue writs only for the enforcement of fundamental rights, whereas a
High Court can issue writs not only for the enforcement of Fundamental rights
but also for any
other purpose.
Therefore the writ
jurisdiction of the High Court is wider than that of Supreme Court in this
respect.
However the
territorial jurisdiction of the Supreme Court for the purpose of issuing writs
is wider than that of a High Court.
Parliament can
empower any other court to issue directions, orders and writs of all kinds. Any
other court does not include High Courts.
Also constitution
provides that the President can suspend the right to move any court for the
enforcement of the fundamental right during a National Emergency (Article-359).
▪▪ Courts also
issue Injunction, which is not mentioned in the Constitution. It is issued
against private persons.
▪▪ Public
Interest Litigation (PIL):
The traditional
rule to apply for redressal of breach of fundamental rights. The person
whose right has
been breached can approach the court (locus standi).
▪▪ Public
Interest Litigation (PIL), borrowed from USA, is being applied for achieving
larger public interest.
Any
public-spirited person can go to the court for redressal of breach of
fundamental rights.
Brief Note of DPSP:
•• India borrowed
the concept of Directive Principles from the Irish Constitution of 1937, who in
turn copied it from the Spanish Constitution.
•• The DPSP are
enumerated in Part-IV of the Constitution from Article 36 to 51.
•• Directive
Principles are the ideals that the state should strive to achieve. Therefore,
states should keep these principles in mind while formulating policies and
enacting laws.
•• The term
‘state’ in Part-IV has the same meaning as in Part-III dealing with Fundamental
Rights.
•• The Directive
Principles resemble the ‘Instrument of Instructions’ enumerated in the Government
of India Act of 1935.
•• DPSP embody the
concept of a ‘welfare state’ and not that of a ‘police state’, which existed
during the colonial era.
•• The Directive
Principles are non-justiciable in nature, that is, they are not legally
enforceable by the courts for their violation.
•• While
fundamental rights aim at political freedom, DPSP aim at securing economic and
social justice through appropriate state action.
•• They impose
obligations on the state and give directions to take positive action to promote
social welfare.
•• Articles 38
& 39 embody the Jurisprudential doctrine of “Distributive Justice”.
•• 42nd
amendment Act (1976) added Articles 39-A, 43-A, 48-A.
Provision for
“Creation of Opportunities for healthy development of children” in Article
39 (A).
Article
|
Provision
|
38
|
Social order
based on justice and to minimise inequalities in income, status,
facilities and
opportunities.
|
39
|
Principles of
policy to be followed by the State for securing economic justice
in the form of:
•• Means of Livelihood
to all.
•• Use of
resources for common good.
•• Prevention of
concentration of wealth.
•• Equal pay for
equal work.
•• Protection of
workers.
•• Protection of
children and youth.
|
39 A
|
Equal justice
and free legal aid to the poor. Legal aid and speedy trial are
fundamental
rights under Article 21 of the constitution available to all prisoners
and are
enforceable by the courts.
|
40
|
Organization of
village panchayats.
|
41
|
Right to Work,
Education and Public assistance in some cases.
|
42
|
Just and humane
conditions of work.
|
43
|
Living wage for
workers. Living wage and not minimum wage.
|
43 A
|
Participation of
workers in management.
|
44
|
Uniform civil
code.
|
45
|
Free and
compulsory education for children.
|
Fundamental Duties
•• Borrowed from
the Constitution of USSR.
•• Covered under Article
51-A (PART IV A) of the Constitution.
•• Added to the
Constitution by 42nd amendment, 1976.
•• Added on the
recommendations of “Swaran Singh Committee.”
•• Originally
there were 10 duties, but Art-51-A (k) was added by 86th amendment act,
2002.
(93rd
amendment bill) to add one more fundamental duty.
ELEVEN FUNDAMENTAL
DUTIES:
(a) To abide by
the Constitution and respect its ideals and institution, the National Flag and
the National Anthem.
(b) To cherish and
follow the noble ideals that inspired the national struggle the sovereignty,
unity and integrity of India.
(c) To uphold and
protect the sovereignty unity and integrity of India.
(d) To defend the
country and render national service when called upon to do so.
(e) To promote
harmony and the spirit of common brotherhood.
(f) To value and
preserve the rich heritage of country.
(g) To protect the
natural environment including forests.
(h) To develop
scientific temper, humanism and the spirit of inquiry and reform.
(i) To safeguard
public property and to abjure violence.
(j) To strive
towards excellence in all spheres.
(k) To provide
opportunities for education to his child or ward between the age of six and
fourteen years.
Characteristic
features of Fundamental Duties:
•• Some of them
are moral duties while others are civic duties.
•• Speaks of those
values/norms which have been integral part of Indian tradition, mythology,
religions and practices.
•• The Fundamental
Duties are confined to citizens only and do not extend to foreigners.
•• The Fundamental
Duties are non-justiciable.
•• There are not
legal sanction against the violation of Fundamental Duties.
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