Lecture 9 Fundamental Rights

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•Fundamental Rights (Part III) are called as the ‘Magna Carta’ of India.

•Fundamental Rights promote ideals of ‘political democracy’ as they protect the liberties and freedom of people.

•They constitute the bedrock of democracy as they check the absoluteness of the authority or totalitarianism by the government.

•They are also essential for the all-round development of an individual. •Fundamental Rights are Justiciable. They are defended and guaranteed by the Supreme Court. Thus, an aggrieved person can directly go to the Supreme Court.

Article 12: Definition

  “The State” includes the Government and Parliament of India and Government and the Legislature of each states and all local and other authorities within the territory of India or under the control of the Government of India.

•Thus, State has been defined in very wide sense to also include bodies like PSUs, RBI, SEBI etc.

•According to Supreme Court, even a private body or an agency working as an instrument of the state falls within the meaning of the ‘state’ u/a 12. •Fundamental Rights provide protection to people against actions of ‘State’. Thus, the Fundamental Rights are protected against the actions of all these authorities.

Article 13 – Laws inconsistent with or in derogation of the Fundamental Rights

  1. If any law, which is enacted immediately before the commencement of this Constitution, is inconsistent with the provisions of this Part (Part III), shall, to the extent of such inconsistency, be void.

2. The state shall not make any law which takes away/abridges the Fundamental Rights and any law made in contravention of this clause shall, to the extent of contravention, be void.

•This Article inderectly provides for the doctrine of ‘Judicial Review’ as Supreme Court (u/a 32) and High Court (u/a 226) will have power to declare a law as void if it takes away Fundamental Rights.

3. “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

•Thus, the definition of law has been kept very wide.

•It not only includes law made by legislature but it also includes Presidential Ordinances, delegated legislation etc.

4.  Article 13 shall not apply to Constitutional amendment u/a 368. •However, in Kesavananda Bharti Case (1973), Supreme Court held that if a Constitutional amendment takes away any Fundamental Rights which is part of ‘basic structure’, then it can be challenged in Court.

Fundamental Rights at a Glance

Right to equality

•Article 14 – Equality before law.

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

•Article 16 – Equality of opportunity in matters of public employment. •Article 17 – Abolition of untouchability.

•Article 18 – Abolition of titles. •

Right to Freedom

•Article 19 – Protection of certain rights regarding freedom of speech, etc. •Article 20 – Protection in respect of conviction of offences.

•Article 21 – Protection of life and personal liberty. •Article 21A – Right to education.

•Article 22 – Protection against arrest and detention in certain cases. •

Rights against Exploitation

•Article 23 – Prohibition of traffic in human beings and forced labour. •Article 24 – Prohibition of employment of children in factories, etc.

Right to freedom of Religion

•Article 25 – Freedom of conscience and free profession, practice and propagation of religion.

•Article 26 – Freedom to manage religious affairs.

•Article 27 – Freedom as to payment of taxes for promotion of any particular religion.

•Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

Cultural and educational Rights

•Article 29 – Protection of interests of minorities.

•Article 30 – Right of minorities to establish and administer educational institutions.

•Article 31 – Right to property (now repealed)

Right to Constitutional Remedies

•Article 32 – Remedies for enforcement of rights conferred by this Part.

Article 14: Equality before law

  The state shall not deny to any ‘person’ equality before the law or the equal protection of the laws within the ‘territory of India’.

‘Person’ has been used instead of ‘citizens’, thus, foreigners also have this fundamental right. ‘Person’ also includes legal person like companies etc. •‘Equality before Law’ means law is supreme and everyone is equal before law. There is no special privilege to anyone.

‘Equal protection of law’ means equal treatment under equal circumstances i.e. equals and unequals should be treated differently.

A. V. Dicey on Rule of Law

•He gave 3 elements of Rule of Law:

Absence of Arbitrary power: No man can be punished except for a breach of law. (Article 20)

Equality before law: All persons are equal before a law. (Article 14)

The primacy of the rights of the individual: The Constitution is the result and not source of rights.

•India have adopted only first 2 elements of Dicey’s concept.

•Equality before law is not absolute in India as there are some exceptions to it.

Article 361: Some immunities have been granted to President and Governors:

•They are not answerable to any court for the exercise and performance of the powers and duties of his office.

•No criminal proceedings.

•No arrest or imprisonment.

•No civil proceedings (in his personal capacity) until the expiration of 2 months next after notice has been delivered to him.

Article 361-A: If a substantially true report of any proceedings of Parliament or state legislature is published in a newspaper/radio/tv – then, there shall not be any civil/criminal proceedings in a court against any person.

Article 105 and 194: Powers, privileges etc of the MPs and MLAs.

Article 31-C: It empowers Parliament to make a law to give effect to DPSPs u/a 39 (b) and 39 (c), even if that law is in contravention to Article 14 and 19. •Immunities to foreign ambassadors and diplomats.

•Immunities to international organisations and their members.

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

•The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

•Use of word ‘only’ means discrimination on other grounds is allowed like ‘place of residence’.

•No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:

a)Access to shops, public restaurants, hotels and places of public entertainment; or

b)The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the state funds or dedicated to the use of general public.

•In this provision, the term ‘state’ has not been used. It means it prohibits discrimination by private individuals also.

•However, this article provides for 4 exceptions:

•State can make special provision for women and children.

•State can make special provision for the advancement of any socially and educationally backward classes of citizens or for the SC and ST. •State can make special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the SC or ST with respect to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than minority educational institutions.

•For Economically Weaker Sections (added by 103rd CAA).

Article 16 – Equality of opportunity in matters of public employment

•There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

•No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

Exception 1: However, Parliament can make law to provide for residence within a state/UT as a condition prior to any employment or appointment. •Only Parliament can make such a law. It cannot be made by state legislature.

•Such provisions are made for Andhra Pradesh and Telangana u/a 371D.

Exception 2: State can also make any provision for the reservation:

of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

in matters of promotion, with consequential seniority, to any post in the services under the State in favour of SC and ST which, in the opinion of the State, are not adequately represented in the services under the State.

•State can also consider any unfilled reserved vacancies of a year (backlog) as a separate class of vacancies to be filled up in any succeeding year or years. Such vacancies shall not be considered for determining the ceiling of fifty per cent. •

•The provisions related to reservation in promotion (77th CAA) and not considering backlog as part of 50% ceiling (81st CAA) were inserted in Constitution to nullify the ruling of Supreme Court in Mandal case/Indira Sawney case (1992).

•However, SC with subsequent order have rejected reservation in promotion. For example, in M Nagraj case (2006), SC put down certain conditions to grant reservation in promotion. Recently, in Jarnail Singh case (Sep 2018), SC indirectly rejected reservation in promotion on grounds of creamy layer.

Exception 3: However, a law can also provide that the manager, officer etc. of any religious or denominational institution, shall be a person professing a particular religion or belonging to a particular denomination. •Exception 4: Economically Weaker Sections (added by 103rd CAA).

Indira Sawhney/Mandal case: SC ruled that:

•Creamy Layer in OBCs should be excluded from reservation.

•No reservation in promotion.

•50% ceiling.

•Carry forward rule in case of backlog is valid, but total reservation cannot exceed 50%.

•A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.

Economically Weaker Sections

Article 15(6):

•It allows state to make special provisions for the advancement of EWS category.

•Moreover, for such advancement, special provisions can be made for their admission into educational institution including private educational institutions, whether aided or unaided by state. However, such provision cannot be made for minority educational institutions.

•Such reservation would be in addition to the existing reservations (50% ceiling) and subject to a maximum of 10% of the total seats.

•Article 16(6):

•It allows state to make provision for the reservation of appointments or posts in favour of any economically weaker sections in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.

•“EWS” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. •Criteria for EWS Category:

•A General Candidate other than other reserved classes.

•Annual household income below Rs 8 lakh.

•Agriculture land below 5 acres.

•Residential house below 1000 sqft.

•Residential plot below 100 yards in notified municipality.

•Residential plot below 200 yards in non-notified municipality area.

Article 17 – Abolition of untouchability

•“Untouchability” is abolished and its practice in any form is forbidden. •The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

•This fundamental right is available not only against state but also against private individuals.

•According to this provision, an act was enacted – Protection of civil rights act, 1955. To strengthen this act, later another act i.e. Scheduled Castes and Tribes (Prevention of atrocities) Act was also passed.

•Untouchability has not been defined in Constitution. However, PCRA provided some acts as part of untouchability like preventing from entering in place of public worship, hotel, shop, hospital or any public place; refusing to sell goods or render service; justifying or encouraging untouchability; insulting any person on grounds of untouchability; etc. •Mysore high court held that Untouchability is the practice as it had developed historically in the country. It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes.

  Hence, it does not cover social boycott of a few individuals or their exclusion from religious services etc.

Article 18 – Abolition of titles

•No title, except a military or academic distinction, shall be conferred by the State.

•It means all the titles like Maharaja, Dewan etc. are prohibited. This provision specifically targets hereditary titles of nobility.

•SC held the constitutional validity of national awards like Bharat Ratna, Padma awards etc. However, they should not be used as suffixes or prefixes to the names of awardees.

No citizen of India shall accept any title from any foreign State.

A foreigner while he holds any office of profit or trust under the State cannot accept any title from any foreign State without the consent of the President.

A person holding any office of profit or trust under the State shall not accept any present, emolument, or office from or under any foreign State without the consent of the President.

•Difference in above 2 provisions:

•First provision is related only to Foreigners whereas second is related to citizens as well as foreigners.

•First provision is related to titles only, whereas 2nd is related to any present, emolument or office.

Article 19 Right to Freedom (Protection of certain rights regarding freedom of speech, etc)

(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

Article 20 – Protection in respect of conviction of offences

No ex-post-facto law: No ‘person’ shall be:

a.convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence,

b.subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

•It prohibits only conviction and not trial.

•This limitation is imposed only on criminal laws and not on civil laws or tax laws. Thus, a civil liability or tax can be imposed retrospectively. •Protection under this provision can not be claimed in case of preventive detention.

No Double Jeopardy: No ‘person’ shall be prosecuted and punished for the same offence more than once.

•It is available only in proceedings before a court of law or tribunal. It is not available in case of non-judicial bodies (like departmental or administrative authorities).

No Self-incrimination: No ‘person’ accused of any offence shall be compelled to be a witness against himself.

•However, protection against self incrimination does not extend to: •Compulsory production of material objects;

•Compulsion to give thumb impression, specimen signature, blood specimens, and

•Compulsory exhibition of the body.

•Civil proceedings.

Article 21 – Protection of life and personal liberty

  “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

•Supreme Court ruled that ‘right to life’ also includes right to live with human dignity and all those aspects of life which go to make a human’s life meaningful, complete and worth living.

•Similarly, SC held that expression ‘Personal Liberty’ is of widest amplitude and covers a variety of rights.

“Procedure established by law” versus “due process of law”:

•In first connotation, only procedure in formulating and implementing a law is questioned.

•The constitutionality, reasonableness, fairness and just nature of law is questioned only in later.

•In Gopalan case (1950), SC interpreted strictly within the expression of ‘procedure established by law’. This means that state, by law (if enacted by fair procedure), can deprive the Fundamental Rights under Article 21.

•But in Menaka Gandhi case (1980), SC took wider interpretation of ‘due process of law’. Thus, rights u/a 21 are available against arbitrary actions of both legislature and executive.

•Various rulings led to widest interpretation of this article and following rights were also made part of ‘right to life’:

•Right to decent environment including pollution free water and air.

•Right to livelihood.

•Right to travel abroad.

•Right to privacy.

•Right to shelter.

•Right to health.

•Right to free education upto 14 years of age.

•Right to free legal aid.

•Right against handcuffing.

•Right to speedy trial.

•Right against solitary confinement.

•Right against inhuman treatment.

•Right against delayed execution.

•Right against bonded labour.

•Right against custodial harassment.

•Right against public hanging.

•Right to emergency medical aid.

•Right not to be driven out of a state.

•Right to fair trial.

•Right of prisoner to have necessities of life.

•Right  to hearing.

•Right to information.

•Right to reputation.

•Right of appeal from a judgement of conviction.

•Right to appropriate life insurance policy.

•Right to sleep. •Right to freedom from noise pollution.

•Right to electricity.

•Right of women to be treated with decency and dignity.

Article 21A – Right to education

  “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

•This Fundamental Right is added by 86th CAA. Earlier, it was part of DPSPs, but now by making it a part of FRs, it has become enforceable by the courts. •86th CAA also amended DPSP and Fundamental Duties.

•In pursuance this article, parliament has enacted “Right to Education Act, 2009”.

Article 22 – Protection against arrest and detention in certain cases

In case of Normal punitive detention:

•When a person is arrested, then, before his detention in custody:

•He must be informed of the grounds for such arrest;

•He has right to consult, and to be defended by, a legal practitioner of his choice.

•After detention – He must be produced before the nearest magistrate within a period of 24 hours of such arrest. Detention beyond 24 hours can be done only with the authority of magistrate.

•However, the time necessary for the journey from the place of arrest to the court of the magistrate shall not be included in 24 hours.

•However, above protections are not available to any person —

(a) who is an enemy alien; or

(b) who is arrested or detained under preventive detention. •

In case of preventive detention (detention without trial and conviction by a court):

•Preventive detention of a person cannot exceed 3 months unless —

(a) an Advisory Board, consisting of qualified Judges of a High Court, has reported before the expiration of 3 months that there is in its opinion sufficient cause for such detention.

(b) such person is detained as per any law made by Parliament. •

•If a person is preventively detained, then:

•the grounds of detention must be communicated to him and

•earliest opportunity of making a representation shall also be given to him.

•However, grounds of detention need not to be disclosed if authority making any such order considers that to be against the public interest.

Parliament may by law prescribe—

(a) circumstances or cases in which, a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board;

(b) maximum period for which any person may be detained under preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry.

Article 23 – Prohibition of traffic in human beings and forced labour

•Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

•Offences also includes Devdasis; slavery; immoral traffic in women and children; selling of women and children as goods; etc.

•This right is available to citizens as well as foreigners. •This right is available against private individuals also.

•To implement this fundamental right, state has enacted various laws like •‘Immoral Traffic (Prevention) Act, 1956;

•Bonded Labour System (abolition) Act, 1976;

•Minimum Wages Act; •Contract Labour Act; etc.

•Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

•Discrimination can be made on grounds of ‘gender’ or ‘age’.

Article 24 – Prohibition of employment of children in factories, etc.

  “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”

•But this article does not prohibit their employment in any harmless or innocent work. Similarly, children above age of 14 years can be employed in hazardous industries.

•However, Child Labour (prohibition and regulation) amendment act, 2016 prohibited the employment of children below 14 years in all occupations and processes. It is in sync with Right to Education.

•This new  also prohibited employment of children in the age group of 14-18 years in hazardous occupations and processes.

Article 25 – Freedom of conscience and free profession, practice and propagation of religion

•All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion subject to public order, morality and health.

•Freedom of conscience: Inner freedom of an individual to mould his relation with God.

•Right to Profess: Declaration of one’s religious beliefs and faith openly and freely. The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

•Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.

•Right to propagate: Transmission and dissemination to others. But, it does not include right to convert another person’s religion.

•State has authority to make a law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

•Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion.

Article 26 – Freedom to manage religious affairs

•Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a)to establish and maintain institutions for religious and charitable purposes;

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

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

•Article 25 is individual centric whereas Article 26 is group centric.

Article 27 – Freedom as to payment of taxes for promotion of any particular religion

•No person shall be compelled to pay any taxes, the proceeds of which are specifically used for the promotion or maintenance of any particular religion or religious denomination.

•It means that state should not spend the tax money for the promotion or maintenance of any particular religion.

•Thus, state cannot patronise a particular religion. However, state can promote all religions equally.

•However, state can collect any ‘fee’ as this article prohibits only taxation. This is because the purpose of a fee is to control administration of religious institution in secular manner.

Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions

•No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

•However, above provision shall not apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.

•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 without his consent. If such person is a minor, consent of his guardian is required.

Article 29 – Protection of interests of minorities

“Any section of the citizens” having a distinct language, script or culture of its own shall have the right to conserve the same.

•SC held that “any section of citizens” does not include only minorities.

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, language or any of them.

•These rights are available to Indian Citizens only.

•First is group centric whereas second is individual centric.

Article 30 – Right of minorities to establish and administer educational institutions

•All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. •However, SC in Secretary of Malankara Syrian Catholic College case (2007), gave following decisions:

i.The right to establish and administer educational institutions include selection of governing body, personnel administration, student admission and fees policies, use of properties of institution etc.

ii.The right u/a 30 is to ensure equality with the majority and not intended to place the minorities in a more advantageous position as compared to majority.

iii.The general laws relating to national interest, national security, public morality, health taxation etc. are equally applicable to minority institutions.

iv.Right to administer does not include right to mal-administer. Governmental regulations can be made for maintaining standards and academic excellence.

v.If state provides aid to minority educational institutions, then state can impose condition for proper utilization of that aid. But, such an aid shall not dilute or abridge the rights of minority educational institutions.

•In compulsory acquisition of any property of such educational institution, the State shall ensure that the compensation fixed for such acquisition is not going to restrict or abrogate the right guaranteed to them.

•Thus, right to property is guaranteed for educational institutions established by minorities.

•In granting aid, state shall not  discriminate against any educational institution on the ground that it is under the management of a minority.

Article 31 – Right to property (now repealed)

•Earlier, Article 31 and 19(f) provided for right to property. They provided that no person shall be deprived of his property except by authority of law.

•After a long drawn tussle between Parliament and Judiciary, these articles were repealed by 44th CAA in 1978. A new article 300A was inserted.

Article 300A: No person shall be deprived of his property save by authority of law.

•Thus, Right to Property is still a constitutional right, but it is no more a fundamental right. Thus, it is not enforceable directly by supreme court. Moreover, there is no guaranteed right to compensation.

Article 32 – Remedies for enforcement of rights conferred by this Part

•The right to move to Supreme Court, for the enforcement of the fundamental rights, is guaranteed.

•This article makes fundamental rights real.

•A person can directly go to SC for protection of his fundamental rights. Thus, this article makes SC as the defender and guarantor of the fundamental rights.

•However, the jurisdiction of SC is not exclusive as a person also has choice to move to High Court u/a 226.

•Dr. Ambedkar considered this article as a very soul and heart of Constitution.

•The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of fundamental rights. •Thus, SC jurisdiction is not only original (a person can go directly to SC) but also wide (SC can issue order, directions and writ).

•Without prejudice to the powers conferred on the Supreme Court, Parliament may by law empower any other court to exercise the powers exercisable by the Supreme Court to protect fundamental rights.

•The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

•Like Article 359 provides that this article can be suspended during National emergency.

Exceptions to Fundamental Rights

Article 31A – Saving of laws providing for acquisition of estates, etc.Article 31B: Validation of certain Acts and Regulations.

Article 31C: Saving of laws giving effect to certain directive principles.Article 33: Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.

Article 34: Restriction on rights conferred by this Part while martial law is in force in any area.

Suspension of FRs during National Emergency (discussed in chapter “Emergency Provisions”).

Article 31A – Saving of laws providing for acquisition of estates, etc.

•No law shall be deemed to be void on the ground that it is inconsistent with article 14 or article 19, if it provides for —

(a) Acquisition of any estate or of any rights therein by the state, or

(b) Taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) Amalgamation of two or more corporations, or

(d) The extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) Extinguishment or modification of any mining lease.

If such law is made by the Legislature of a State, the provisions of this article apply only if such law have been reserved for the consideration of the President and has received his assent.

Where acquisition of any estate comprises such land, which is under personal cultivation of a person and land is within the statutory ceiling limit, then it State shall provide for payment of compensation at a rate which shall not be less than the market value.

Article 31B: Validation of certain Acts and Regulations

•It saves the acts and regulations included in the 9th Schedule from being challenged and invalidated on the ground of contravention of any of the FRs.

•However, in I. R. Coelho (2007) case, SC ruled that there could not be any blanket immunity from judicial review as it is part of basic structure.

•SC held that laws placed under 9th Schedule after April 24, 1973 are open to challenge in court if they violated FRs guaranteed u/a 14, 15, 19 and 21 or the basic structure of the Constitution.

Article 31C: Saving of laws giving effect to certain directive principles •If any law gives effect to all or any DPSPs, then it shall not be deemed to be void on the ground that it is inconsistent with article 14 or article 19. Such a law cannot be questioned in court of law.

•25th amendment act provided protection to only DPSPs u/a 39(b) and (c). But later 42nd CAA extended this protection to all DPSPs.

•But SC in Minerva Mill case (1980) declared this extension of provision as invalid and unconstitutional. Thus, immunity is available to only socialistic DPSPs u/a 39(b) and (c).

•SC also held this provision as unconstitutional as it takes away Judicial Review which is part of basic structure.

Article 33: Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.

Parliament may, by law, to ensure the proper discharge of their duties and the maintenance of discipline among them, restrict or abrogate any fundamental rights for following forces:

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order (police and para-military forces); or

(c) Bureaucracy or intelligence or counter intelligence organisations; or

(d) person employed in telecommunication systems which is set up to serve above mentioned forces.

Article 34: Restriction on rights conferred by this Part while martial law is in force in any area

Parliament may by law indemnify any public servant or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force.

•Parliament can also validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. •Martial law is not defined in Constitution, but it means rule by military and not by civil authorities.

Article 35: Legislation to give effect to the provisions of this Part

Only Parliament shall have, and the Legislature of a State shall not have, power to make laws with respect to following matters:

•Prescribing residence as a condition for employment in article 16(3).

•Empowering a court other than SC to protect FRs of citizens u/a 32(3).

•Article 33 i.e. restriction of FRs for armed forces and various other forces.

•Article 34 i.e. indemnifying any government servant or any other person for any act done during the operation of martial law.

•Providing punishment u/a 17 (untouchability) and 23 (traffic in human beings and forced labour).

•Thus, Parliament can make law on above subjects even if they fall in “state list”.

Rights outside Part III

•Article 265: No tax shall be levied or collected except by authority of law.

•Article 300A: Right to property.

•Article 301: Trade, Commerce and intercourse throughout the territory of India shall be free.

•Article 326: Right to vote.

•These rights are called “Constitutional Rights”. They are different from fundamental rights.

List of Fundamental Rights

I) RIGHT TO EQUALITY (ARTICLES 14-18):

Article 14: Equality before law.

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

Article 16: Equality of opportunities in matters of public employment.

Article 17: Abolition of Untouchability.

Article 18: Abolition of titles.

II) RIGHT TO FREEDOM (ARTICLES 19-22):

Article 19: Rights to freedom of speech and expression, assemble peacefully and without arms, form associations or unions, move freely throughout the territory of India, and practice any profession or to carry on any occupation, trade or business.

Article 20: Protection in respect of conviction for offenses.

Article 21: Protection of life and personal liberty.

Article 21A: Regarding obligation of the state to provide free and compulsory education to all children of the age of 6-14 years.

Article 22: Regarding protection against arrest and detention in certain cases.

III) RIGHT AGAINST EXPLOITATION (ARTICLES 23-24):

Article 23: Prohibition of traffic in human beings and forced labor.

Article 24: Prohibition of employment of children in factories, etc.

IV) RIGHT TO FREEDOM OF RELIGION (ARTICLES 25-28):

Article 25: Freedom of conscience and free profession, practice, and propagation of religion.

Article 26: Freedom to manage religious affairs.

Article 27: Freedom as to payment of taxes for promotion of any particular religion.

Article 28: Freedom as to attendance at religious instructions or religious worship in certain educational institutions.

V) CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29-30):

Article 29: Protection of language, script, and culture of minorities.

Article 30: Right of minorities to establish and administer educational institutions.

VI) RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32):

Article 32: right to move to the supreme court for the enforcement of Fundamental Rights including the Writs of (i) Habeas corpus, (ii) Mandamus, (iii) Prohibition, (iv) Certiorari and (iv) Quo warranto.

Nature of fundamental rights

First of all, it is important to understand the nature of fundamental rights. Why are they in place? Let us take an example. As a child, you would have been subject to certain rules and regulations in your house by your parents or guardians. You might have felt that these rules impinged on your freedom or personal space, especially in your teenage years. But your parents placed these rules taking into consideration your safety and well-being. These rules were put in place so that you would not be a danger to yourself or others. Fundamental rights are of a similar vein, in that the State, keeping in view any security concern can limit the freedom enjoyed by its citizens. If the government arrests its own citizens, and it is perceived as unjust, the citizens can take a resort to the fundamental rights guaranteed by the Constitution.

Basically, the fundamental rights, together, is a weapon in the hands of the citizens to protect themselves from any abuse of power by the State. These rights act as a check on the powers of the government. The idea of the fundamental rights is central to the idea of a liberal democracy.

For example, the Supreme Court stated that transgenders should be included in the 2011 census as ‘others’ and not as either male or female. The court recognized the right of an individual to life (freedom rights) as the right to be recognized by the state also.

Why are Fundamental rights called so?

Basically, there are two types of rights:

1. Fundamental rights
These are more basic rights, more valuable and therefore, called fundamental rights. These can be called fundamental to an individual’s existence. They have a higher status than ordinary legal rights. Basic rights to existence, etc come under this category.

2. Ordinary legal rights
These rights are also given to the citizens but are not deemed as basic or fundamental to a person’s existence. Example: Right to Work under NREGA. Certain ordinary legal or justiciable rights are derived from fundamental rights.

What makes fundamental rights different from other rights?

The difference between these rights is the manner in which they are enforced.

If a citizen is deprived of his/her ordinary legal right such as the right to work, he/she can approach the courts for restoring the same. But he should first approach the lower courts like the district court, then move to the high court and only finally the Supreme Court.

The government can also be forced to pay compensation to the injured party by the courts, in case of violation of ordinary legal rights.

However, if a fundamental right of a citizen is violated, the normal judicial machinery can be bypassed and the Supreme Court can be directly approached. This is where fundamental rights are different from other rights.

The Supreme Court is bound by the Constitution of India to restore fundamental rights. They are the guarantors of the fundamental rights as per Article 32 of the Constitution.

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