Fundamental Rights under the Constitution of India

Status of Fundamental Rights in India vis a vis US


1. Restrictions: Indian Constitution itself puts the restrictions on the fundamental rights. In India the power to restrict fundamental rights has been expressly conferred upon the legislature by the Constitution , judiciary has only a judicial review. US rights were absolute and it was only later that judiciary evolved the power of restraining them.
2. Amendments: Indian legislature has time and again amended the fundamental rights. Earlier SC held the view that no part of the Constitution , including the FRs and Art 368 itself are unamendable. But in the Golakhnath case, it held that fundamental rights can’t be amended since they have been given a transcendental position in the Constitution  and the term “law” in Art 13 includes Constitution  amendment acts. Then by 25th CA Act, 1971 parliament amended FRs. It held that no law in schedule 9 shall be subject to judicial review if it seeks to implement a directive principle. In the Keshavananda case, SC held that FRs can be amended but the amendment is subject to judicial review on grounds of violating basic features of the Constitution . Since judicial review was a basic feature of the Constitution , the parts of 25th CA Act which gave blanket immunity from judicial review were struck down (thus Art 31A and 31C survived while 31B had to go). In 42nd CA Act, 1976 Parliament amended Art 368 to say that any  CA act can’t be challenged in a court and parliament’s power to amend Constitution  is unlimited. In the Minerva Mills case, the court struck down these provisions. In 1978, Janta government removed right to property altogether. 
3. Fundamental duties: They are to be read together with FRs and in any case of violation of FRs, SC may refuse to correct it if the aggrieved person shows a blatant violation of FDs.
4. Exhaustive list: FRs in part 3 of Constitution  are exhaustive in nature. Same can’t be said of US Bill of Rights.
 

Suspension of FRs during proclamation of emergency

1. As soon as emergency is proclaimed the state shall be freed from limitations imposed by Art 19. So citizens will have no protection against violation of Art 19 either during the emergency or after the emergency for excesses committed during emergency. It reinstates as soon as emergency is revoked.
2. For other FRs (except Art 20 and 21), a presidential order is needed to suspend them.
3. Art 20 and 21 can’t be suspended under any case.
 

Nature of Fundamental Rights

  1. Right against untouchability (Art 17), Right against exploitation (Art 23), Right to move freely throughout India (Art 19(1)(d)) are also available against private individuals.
Judicial Review
Principles of Judicial Review
1. If there are more than one conflicting interpretations of the law, one of which is in consonance with Constitution , court will give effect to that reading.
2. Judicial Review is applicable only after the law comes into force and is ordinarily not suo moto.

 
Evolution of Judicial Review
1. By 25th Constitutional Amendment Act, 1971 parliament amended Art 31B to include that no law in schedule 9 shall be subject to judicial review if it seeks to implement a directive principle.  Since judicial review was a basic feature of the Constitution , the parts of 25th CA Act which gave blanket immunity from judicial review were struck down (thus Art 31A and 31C survived while 31B had to go). 

2. In 42nd Constitutional Amendment Act, 1976 Parliament amended Art 368 to say that any  CA act can’t be challenged in a court and parliament’s power to amend Constitution  is unlimited. In the Minerva Mills case, the court struck down these provisions.
 

Fundamental Rights

Article 14: Equality before law and equal protection of law

Equality before law (exceptions)
1. President / governor in discharging their constitutional duties.
2. President / governor can’t see criminal case while they are in office.
3. President / governor have to be given 2 month notice before launching a civil case which seeks compensation from them.

 
Equal protection of laws
1. People in equal circumstances be treated equally and unequal circumstances be treated unequally.
2. The classification for this has to stand the test of reasonableness which includes stuff like proportionate, scientific and rational classification (i.e. people in the group satisfy the property and not in the group don’t satisfy), directly linked to the objective.

 

Article 15: No discrimination

 
15 (1) State shall not discriminate on basis of rrscb (race, religion, sex, color, place of birth).
15 (2) No private discrimination as well on basis of rrscb.
15(3) State can make special provisions for women and children.
15(4) State can make special provisions for socially & educationally backward classes.
15(5) Reservations in educational institutions including private whether aided or unaided (except minority unaided).

1. It is available only to the citizens and not to non-citizens.
2. All reservations to women are justified on the basis of Art 15(3). 
3. Art 15(4) was the 1st CA Act, 1951. 
4. Art 15(5) was the 93rd CA Act, 2005.

 

Art 16: No discrimination on basis of race, religion, sex, caste, Place of Birth (RRSCB) in public employment

 
16(1) Equality of opportunity in public employment.
16(2) No discrimination on basis of RRSCB or any of these.
16(3) Residence is a valid ground of discrimination in certain categories of public employment.
16(4) Reservation in favor of backward classes.
16(4)(a) Reservation in promotions is ok.
16(4)(b) Carry forward rule valid even if it violates 50% principle.

1. It is available only to the citizens and not to non-citizens.
2. State vacancies can’t be filled in arbitrary manner. One implication is that contract workers can’t be regularized.
3. Art 16(4)(b) came by 81 CA Act, 2000.

 
Exceptions
1. Offices connected to religious institution may be filled by person of that religion only.
2. Initially courts held that efficiency of administration can’t be compromised in favor of reservations. But 82nd CA Act, 2000 empowered the state to lower the cutoff marks or relax the standards of evaluation.

 
Indira Sawhney Case (Mandal Commission Case) Art 16(4)
  1. Court gave the doctrines of 50% limit, creamy layer, validity of caste as a measure of backwardness (social and educational), adequate representation, administrative efficiency. Reservation on economic basis is unconstitutional .
  2. Court also held that reservation can be made only Constitutional  entry level and can’t be made in promotions. This feature was struck down by 77th Constitutional Amendment Act, 1995 and Art 16(4)(a) was introduced legalizing reservations in promotions. 
  3. Court also held that such a reservation will be subject to judicial review.

Article 17: Abolition of untouchability

  1. To enforce this Untouchability Offenses Act, 1955 was passed. Later it was changed to SC/ST Atrocities (Prevention) Act, 1989. 

Article 18 Abolition of titles 

18(2) Indian citizens can accept awards, but not titles from any other state.

1. State can give academic and military titles. (Bharat Ratna given for excellence in alps – art, literature, public service, science)
2. The ban works only against the state, not private institutions.

 

Article 19: The six freedoms

1(a) Freedom of speech and expression
  1. Subject to sovereignty and territorial integrity of India, public order, defamation, contempt of court, morality or decency, security of state, friendly relations with foreign states, incitement to an offense.
1(b) Freedom of assembling peacefully and without arms
  1. Subject to sovereignty and territorial integrity of India, public order.
1(c) Freedom of forming associations and unions
  1. Subject to sovereignty and territorial integrity of India, public order.
1(d) Freedom to move freely throughout the territory of India
  1. Subject to public interest and rights of STs.
1(e) Freedom to reside and settle in any part of the country
  1. Subject to public interest and rights of STs.
1(g) Freedom to practice any profession / occupation.
  1. Subject to public interest, public sector, fulfillment of technical qualifications.
Such limitations decided by the state should be ‘reasonable’ and it is here in defining reasonable that judicial review comes into picture. There can be no general definition of reasonableness, it has to be determined on a case by case basis. The reasonability test is not restricted to legislation alone but also applies to the procedure of implementing the legislation.
 

Article 20: It prohibits retrospective criminal legislation, double jeopardy, compulsion to give self-incriminating evidence

Limitations

1. Such evidence should be in nature of communication and can’t include medical tests, search etc. But narco-analysis, brain mapping and polygraph tests conducted against the consent of the subject are unconstitutional and void because of violation of Art 20(3) and Art 21 (right to privacy).
2. The immunity doesn’t give relief from any proceedings other than criminal proceedings.
3. A formal accusation must be made before a person can claim such immunity.

 

Article 21: No person shall be deprived of his life or liberty except according to the procedure established by law

Evolution

1. Until the 1978 Maneka case, court held that this article gives immunity only from the arbitrary action of the executive. But if a legislature passes a law as per the procedure and competence then however unjust a court can’t interfere. Indian constitution by using the words ‘procedure established by law’ had given preference to British system over the US system of ‘due process’ of law.
2. In the 1971 Gopalan case, the minority of the court held a different view that a law could be challenged before the court on grounds of being unfair, unjust or unreasonable. In the Maneka case, this view became the majority. Now the test of reasonableness is imported to determine the validity of a law depriving a person of his life or liberty.
3. Since then the court has read many other rights within this right including RTE (Mohini Jain vs State of Karnataka Case, 1992).

 
Euthanasia – Aruna Shanbugh Case

1. Passive euthanasia may be allowed on a case by case basis notwithstanding Sec 309 of IPC (suicide) provided it is permitted by a HC and consent is given by the relatives / caregivers and a team of expert doctors.
2. Active euthanasia will continue to be a criminal act.

 
Sting Operation Guidelines
1.It can be conducted only for a public purpose and there is no other means by which the truth can be brought in the public domain.
2. The senior editorial board of the channel / newspaper must take responsibility and should be the one to authorize it.
3. The sting operation should not damage the privacy of the individual.
 

Article 22: No person shall be detained without being informed of the grounds of such arrest. No person shall be denied the right to consult and be defended by a lawyer of his choice. Every person detained shall be produced before a magistrate within 24 hours of the arrest.

 
Preventive Detention
(a) Safeguards

1. A person can be detained under preventive detention only for up to 3 months. After that his case has to be produced before an Advisory Board which shall decide if the detention is justified.
2. The person has to be informed of the grounds of his detention as soon as may be, by the detaining authority except when it is against public interest.
3. The person must have earliest opportunity to make his case against detention.

 
(b) Position of preventive detention in Constitution 

1. Preventive detention was a concept prevailing earlier. Our © merely continued it but at the same time introduced Constitutional safeguards upon it.
2. The provisions regarding preventive detention in Constitution  are not self executory in nature but a law has to be made to give effect to them.
3. Union’s power over preventive detention is limited to matters concerning national defence, foreign affairs or security. In all other matters the power is held by states. So it would be difficult for any union government to impose its will on states.

Article 23: Ban on human trafficking and beggar

But it doesn’t ban state from imposing compulsory service for public purposes and in imposing such services the state shall not discriminate on bases of rrcc (race, religion, class, caste).

Article 24: No child ≤ 14 years shall be employed in factory / mine / any other hazardous employment

Child Labor (Prohibition & Regulation) Act, 1986
It declared 14 industries as hazardous like mining, chemical, slate, firecrackers, matchstick. In other industries, child employment was regulated by work of hours, minimum wages, responsibility of the employer towards health and education of children etc.

Child Labor (Prohibition & Regulation) (Amendment) Act, 2009
Unorganized sector was brought under the hazardous industries like domestic help, hotels etc.
 

Article 25: Freedom of conscience and freedom to profess, practice and propagate a religion

 
Limitations

1. Public order, morality and health. Example, infanticide can’t be justified.  
2. Regulations made by state on any secular activity which may be associated with a religious practice.
3. Untouchability.

Article 26: Every religious group can establish and manage its own institutions including religious institutions and charitable trusts

They can own and acquire any property and administer it according to law. Such institutions can be managed by the groups in religious matters subject to public order, morality and health.

Article 27: State shall not use public funds for the promotion and maintenance of a particular religion

 
State is prohibited from patronizing any one religion. But it can patronize all the religions without any discrimination.
 

Article 28: Religious education in schools

 

1. No religious education can be given in schools maintained entirely by government aid.
2. Religious education can be given in schools receiving partial or no aid (but recognized schools) from government but it can’t be forced upon all students.
3. Schools established under religious endowment or by a charitable trust can impart religious education and also make it mandatory even if they are aided by state.

 

Artcle 29: Any group having a distinct culture, language or script has a right to conserve it

 

Article 30: Minority communities shall have a right to establish and administer institutions of its own choice and the state in the matters of grants shall not discriminate against such institutes purely on this basis

1. An institution retains its minority character so long as it – (a) enables such minority to conserve its culture. (b) gives a good education to the children of its minority.
2. Benefits of minority status are: (a) Right to property is a FR for them. (b) Reservation policies of the government can’t extend to MEIs. (c) It can reserve up to 50% seats for students of its own community.

Article 31: Right to property

Evolution

1. Initially right to property was a FR subject only to – (a) reasonable restrictions to serve emergencies of public welfare. (b) reasonable restrictions to serve welfare of STs. No person could be deprived of his property except according to law and such an acquisition could be made only – (a) for public purpose and (b) paying compensation.
2. The court held the word ‘compensation’ to mean full compensation which necessitated 4th CA Act, 1955 which clearly specified that the adequacy of such compensation shall not be challengeable before court. But court continued to maintain an adverse position.
3. By 25th CA Act, 1971 the word ‘compensation’ was replaced by the word ‘amount’. But in Keshavananda case the court again held that such an amount can’t be illusionary and must be determined by a principle which is relevant to the acquisition.
4. By successive amendments changes were introduced in Art 31 A-D to exclude the obligation of paying compensation. (a) Art 31A was amended to state that a law made for land acquisition or temporary takeover shall be valid even if it abridges Art 14 and 19.  (b) Art 31B provides for blanket immunity to enactments placed in Schedule 9. (c) Art 31C provides for immunity for any laws made to implement DPSP in Art 39B & 39C even if they contravene Art 14 and 19. When SC in the Keshavananda case gave the doctrine of basic features and judicial review as one among them, 42 CA Act, 1976 sought to give a blanket immunity to all laws passed to implement any DPSP. But in Minerva Mills case, SC struck it down. (d) Art 31D has been repealed by 43rd CA Act, 1977.
5. 44th CA Act, 1978 took out the right to property altogether from Part 3 of © and placed it under Art 300A.

 
Exception
If the property belongs to a minority educational institution.
If the property is personally cultivated and doesn’t exceed the statutory ceiling.

 
In both cases above, full compensation shall be paid.
 

Article 32 Constitutional Remedies

 
Article 32 is guaranter of all the Fundamental Rights, it is per se a Fundamental Right, it give safeguard to all the fundamental rights provided under part III of the Constitution.
 

1. SC can’t refuse relief under Art 32 once the infringement of a FR has been established on the grounds that the other disputed facts of the case have to be investigated.
2. Mandamus is against administrative and judicial both while prohibition and Certiorari are against judicial only (except if natural justice is violated as a result of administrative action).
3. Prohibition is Constitutional  an earlier stage while certiorari is used to quash an order. 

 
Habeas Corpus
  1. Locus standi is not applicable.
  2. If all the material facts related to the accused’ arrest are made available to the court, his physical presence is not needed.
Prohibition & Certiorari
  1. Locus standi is applicable.
Quo Warranto & Mandamus
  1. Locus standi is not applicable.
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