Fundamental rights
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ENSHRINED in part III
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Constitutes articles from 12 to 35
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Inspiration from USA ( Bill of Rights)
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Part III is described as MAGNA CARTA of India
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Contains long and comprehensive list of
justiciable FR
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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:
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Meant for promoting the ideal of political
democracy
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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? :
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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Right to property (art. 31) – repealed by 44th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modified or repealed by constitutional amendment)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. 13 connotes:
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Permanent laws enacted by Parliament or State
legislatures
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Temporary laws like ordinances by Prez, Gov.s
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Statutory instruments in the nature of delegated
legislation like order, bye-law, rule, regulation or notification
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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
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Art 17
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Protection of Civil Rights Act, 1955
|
|
|
Abolition of titles except military and academic
|
Art 18
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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
|
|
|
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Protection of life and personal liberty
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Art 21
|
|
|
|
Right to elementary education
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Art 21 A
|
86th Amendment Act of 2002
|
|
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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
|
|
|
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Freedom to manage religious affairs
|
Art 26
|
|
|
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Freedom from payment of taxes for promotion of
any religion
|
Art 27
|
|
|
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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
|
|
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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
|
|
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Category
|
FR
available only to citizens
|
FR
available to both citizens as well as foreigners
|
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1.Right to equality (14-18)
|
Art 15, 16
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Art 14
|
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2.Right to freedom (19-22)
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Art 19
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Art 20, 21, 21 A, 22
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3.Right against exploitation (23-24)
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Art 23, 24
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4.Right to freedom of religion (25-28)
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Art 25, 26, 27, 28
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5.Cultural and educational rights (29-30)
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Art 29, 30
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