Fundamental Rights

 England – Individual Rights

 USA – Fundamental Rights – Bill of Rights
 India – Fundamental Rights

 History of the demand for Fundamental Rights

1) Government of India Act, 1935

 Simon Commission

 Joint parliamentary Committee

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 - Rejected Fundamental Rights

2) Nehru Report

 In favour of Fundamental Rights

3) Makers of Constitution

 Adopted Rejected Fundamental Rights

and Directive Principles

 Taken from USA – but a compromise

between Parliamentary Sovereignty
and Judicial Supremacy

 Article 13 – Courts have Power to declare Void laws

contravening Fundamental Rights
Therefore followed American model, but Indian Legislature
stronger than Judiciary:
a) Power to impose reasonable restriction
b) Power to amend constitution
Eg. Right to Property – Janata Government
c) Exceptions – Article 31A, B, C, D – Enactments under the
said Articles cannot be struck down as violative of
Fundamental Rights
d) Fundamental Duties under Article 51A – Curtailing Effect
e) List of Fundamental Rights under Part III exhaustive

 Other Rights also available under Constitution but no

Writ Jurisdiction
Eg. Article 265 – ‘No tax shall be levied or collected except
by

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 Authority of Law’

 Concept of ‘Fundamental’

 Immune to all constitutional amendment

 Article 368 – All parts of constitution can be amended

 SC -> Golak Nath Case – ‘Fundamental Rights’ cannot

be amended under Article
368

 Article 368 itself amended

 Kesavananda Bharati’s Case – Judge Bench
– Parliament can amend
Fundamental Rights
 42nd Amendment - Fundamental Rights can be amended
and referendum

 Article 14 – Equality before law and Equal Protection of Laws

A. Equality before law

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  Negative Concept – Implies absence of special
privileges

 Taken from Second Corollary from Dicey’s Concept of

the Rule of Law, that is, No man is above Law

 Exceptions
1) Governor and President
i) Not answerable to any Court of Law
ii) No Criminal Proceedings
iii) No Civil Proceedings – not applicable to
impeachment and other appropriate
proceedings against Government

B. Equal Protection of Laws

 Equal treatment in similar circumstances

 Providing for ‘Classification’ by State

1) Based on Intelligible differentia

Therefore classification can be based on:
i) Geographical differentia
ii) Time
iii) Nature of trade, calling or occupation
Eg. Taxation
i) Exemption from taxation – Charities, libraries

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 ii) Different taxes for different trades
iii) Real tax and Property tax

 Applies to Substantive and Procedural Law

 Hits at arbitrariness of State Action in any form

 Article 14 – General Equality

 Articles 15 and 16 – Specific Equality

 Article 15 - Prohibition of discrimination on grounds of

Religion, Race, Caste, Sex or Place of Birth

 In access to public places and facilities but does

not prevent state from:
i) From making special provision for children
ii) And for backward classes – Schedule Castes
and Schedule Tribes

 Article 16 - Equality of opportunity in matters of public

employment

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  No person can be excluded from state service
exceptions:
Reservation can be made for:
i) Backward class of citizens
ii) Religious or denominated institution officers
iii) Schedule Castes and Schedule Tribes (Article
335)

 Article 17 - Abolition of Untouchability

 Punishable

 Untouchability (offences) Act 1955

Protection of Civil Rights Act, 1955

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  No definition of Untouchability
i) Refusal of admission to public institutions
ii) Prevention of worship in public places
iii) Subjecting person to disability

 Act in 1976
i) Insulting member of Supreme Court
ii) Justifying untouchability

 Penalty
i) 1 to 2 years imprisonment
ii) Cannot stand for election

 Article 18 - Abolition of Titles

 To eradicate imperialistic tendencies exceptions:

i) Ban operates only against state
ii) State not debarred from awarding military or
academic distinctions
iii) State can award distinctions
Eg. Bharat Ratna, Padma Vibhusha, Padma
Bhushan, Padma Sri

 Criticism

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 Articles 17 and 18 – Social Justice

 Article 19 – The Six Freedoms

1. Freedom of Speech and Expression

2. To assemble Peaceably and Without Arms

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3. To form Associations or Unions

4. To move freely throughout the territory of India

India
5. To reside and settle in any part of the Territory
of India
6. ---

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 7. To practise any profession, or to carry on any
occupation, trade or business

 Constitution attempts to strike balance between

individual liberty and social control by imposing
restrictions:
Eg:
i) Defamation
ii) Contempt of Court
iii) Decency or Morality
iv) Security of State
v) Friendly relations with Foreign States
vi) Incitement to an Offence
vii) Public Order
viii) Maintenance of the Sovereignty and Integrity
of India

 Restrictions to be Reasonable
Tests
i) Object of Legislations to be served
(substantial)
ii) Not to violate Natural Justice (procedural)

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 Article 20 – Protection in respect of conviction of
Offences

a) Prohibition of retrospective Criminal Legislation

b) Double Jeopardy
c) Compulsion to give self-incriminating evidence

 Article 21 – Protection of Life and Personal Liberty

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  No person to be deprived of his life or liberty
except according to procedure established by Law

 But there cannot be absolute freedom

 Safeguards individual against arbitrary or illegal
action on the part of Executive

 Article 22 – Protection against Arbitrary Arrest and

Detention

“is it because I used to be black?”

1) On arrest to be informed of grounds of arrest

2) Right to consult and be assisted by advocate

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 3) To be produced before magistrate within 24 hours
Not available
a) Enemy/alien
b) Preventive Detention

 Conditions applicable to Preventive Detention

i) 3 months / Report to Advisory Board
ii) To know grounds of detention
iii) Earliest opportunity of Making Representation

 To Protect
i) Security of State
ii) Maintenance of Public Order
iii) Maintenance of supplies and services essential
to State

 Article 23 – Right against Exploitation

a) Prohibition or Traffic in Human Beings and Forced

Labour
b) But does not prevent State from imposing
compulsory recruitment or Conscription for public
purposes such as military or social service

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 Article 24 – Prohibition of Employment of Child (Below
14) in Factories, etc.

 Articles 25, 26, 27, 28 – Freedom of Conscience and Free

Profession, Practise and Propagation of Religion

 In tune with Declaration of India as Secular State

 No state religion

 No taxes for religious institutions

 No religious instruction in educational institutions

wholly supported by state fund

 Right to propagate religion

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 Article 29 – State not to impose any culture other than a
community’s cultures

 Article 30 – Communities have right to establish and

administer educational institutions

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