Fundamental rights
- ENSHRINED in part III
- Constitutes articles from 12 to 35
- Inspiration from USA ( Bill of Rights)
- Part III is described as MAGNA CARTA of India
- Contains long and comprehensive list of justiciable FR
- More elaborate than anywhere else in the world
MAGNA CARTA: is the Charter of rights issued by King John of England in1215 under pressure from barons.
- First written document on FR of citizens.
FR:
- Meant for promoting the ideal of political democracy
- Prevent the establishment of authoritarian and despotic rule in the country
- Protect the liberties and freedoms of the people against invasion by the state.
In short they aim at establishing – ‘govt. of laws and not of men’
Why they are known as Fundamental? :
- Guaranteed and protected by the Constitution, which is the fundamental law of the land.
- Also bcoz they are essential for ‘all round development (material, intellectual, moral and spiritual) of the individuals.
SEVEN FUNDAMENTAL RIGHTS:
1. Right to Equality (art. 14-18)
2. Right to freedom (art. 19-22)
3. Right against exploitation (art. 23-24)
4. Right to freedom of religion (art. 25-28)
5. Cultural and educational rights (art. 29-30)
6. Right to property (art. 31) – repealed by 44th Amendment Act, 1978; made legal right Art. 300 - A in part XII.
7. Right to constitutional remedies (art. 32)
Features of FR:
1. Some are available to only citizens while others are available to all.
2. They are not absolute but qualified. (State can impose reasonable restrictions). They a strike a balance between liberty and social control.
3. Most of them are available against arbitrary action of state with a few exceptions.
4. Some of them are negative in character. (they impose limitations on state while others confer privileges on persons)
5. Justiciable
6. Defended and guaranteed by the Supreme court
7. They are not sacrosanct or permanent. (can be modified or repealed by constitutional amendment)
8. Can be suspended only in case of National Emergency
9. Their scope of operation is ltd by art. 31 A, 31 B, 31 C
10. Application to members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by Parliament. (art 33)
11. Application can be restricted during ‘Military Rule or Martial Law’.
12. Most of them are directly enforceable while some are to be enforced on the basis of law made by the Parliament (only) for giving effect to them.
Article 13 – states that any law inconsistent with or in derogation of any of the FR shall be void. It provides for JUDICIAL REVIEW. This power has been conferred on the SC (art. 32) and HCs (art. 226).
Law – under Art. 13connotes:
- Permanent laws enacted by Parliament or State legislatures
- Temporary laws like ordinances by Prez, Gov.s
- Statutory instruments in the nature of delegated legislation like order, bye-law, rule, regulation or notification
- Non-legislative sources like customs or usage having the force of law.
Art. 13 declare - Constitutional law is not a law and hence cannot be challenged.
However, the SC held in the Kesavananda Bharathi case (1973) that a constitutional amendment can be challenged on the ground that it violates a FR that forms the ‘basic structure’ of the Constitution.
Category
Consists of
Specific Article dealing with the FR
Exceptions and other associated terms/ rulings/ concepts…
Right to equality (14-18)
Equality before law and equal protection of laws
Art 14
Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth
Art 15
Creamy layer, 93rd Amendment Act of 2005; central educational institutions act,2006
Equality of opportunity in matters of public employment
Art 16
Mandal commission, 1979; 76th Amendment Act, 1994- wrt to Tamilnadu
Abolition of untouchability and prohibition of its practice
Art 17
Protection of Civil Rights Act, 1955
Abolition of titles except military and academic
Art 18
1996 – SC upheld the validity of National Awards
Right to freedom (19-22)
Protection of six rights regarding freedom of: speech and expression, assembly, association, movement, residence and profession
Art 19
Sec 144 of Cr. PC; Sec 141 of IPC
Protection in respect of conviction for offences
Art 20
Protection of life and personal liberty
Art 21
Right to elementary education
Art 21 A
86th Amendment Act of 2002
Protection against arrest and detention in certain cases
Art 22
Right against exploitation (23-24)
Prohibition of traffic in human beings and forced labour
Art 23
Immoral Traffic (prevention) Act, 1956; minimum wages act,1948; Contract Labour Act, 1970; Equal Remuneration Act 1976
Prohibition of employment of children in factories, etc.
Art 24
Child Labour (prohibition and regulation) Act, 1986; factories act, 1948; mines act, 1952
Right to freedom of religion (25-28)
Freedom of conscience and free profession, practice and propagation of religion
Art 25
Freedom to manage religious affairs
Art 26
Freedom from payment of taxes for promotion of any religion
Art 27
Freedom from attending religious instruction or worship in certain educational institutions
Art 28
Cultural and educational rights (29-30)
Protection of language, script and culture of minorities
Art 29
Rights of minorities to establish and administer educational institutions
Art 30
Right to constitutional remedies (32)
Right to move the SC for the enforcement of FR including writs of
i. Habeas corpus
ii. Mandamus
iii. Prohibition
iv. Certiorari
v. Quo war-rento
Art 32
Category
FR available only to citizens
FR available to both citizens as well as foreigners
1.Right to equality (14-18)
Art 15, 16
Art 14
2.Right to freedom (19-22)
Art 19
Art 20, 21, 21 A, 22
3.Right against exploitation (23-24)
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Art 23, 24
4.Right to freedom of religion (25-28)
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Art 25, 26, 27, 28
5.Cultural and educational rights (29-30)
Art 29, 30
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