Rights

Constitutional rights- mentioned in the constitution

Difference between fundamental rights and other legal rights

§ Source
§ Enforceability
§ Procedure of amendment

Fundamental rights- part III

§ Inspired by Bill of rights

§ Significance

To achieve the full potential of individual

o Cornerstone of democracy
o Any law which violates these are null and void
Hallmark for constitutionalism

§ Nature
o Primarily against state action
o Not absolute- come with conditions and restrictions
o Negative injunctions- prohibit the state from doing certain actions
o Positive injunctions- conferring certain benefits to individuals
o Fundamental clause 13(a)
Laws are made void if they are inconsistent with fundamental rights

o Doctrine of eclipse
· Bikaji naryan v/s state of Madhya Pradesh

§ Conflicting law will be dormant

§ Pre constitutional law
Ø Deep chand v/s state of up
§ Doctrine of elipse shall be applicable to pre constitutional law
§ Post constitutional law have to be declared invalid
Ø Ambika mills vs state of Gujarat
§ Doctrine of eclipse –both pre and post constitutional law as well
§ Law should be very important
o Article 13(2)
· Don’t make law which go against the fundamental rights
§ Various examples were presented
§ Ninth schedule

Amendment to fundamental rights

Shankari parsad case v/s union of india 1951

§ Parliament has two type of legislative power

Ø Ordinary and constitutional
Ø Constitutional amendment not covered in the definition of law

§ Golak nath vs state of punjab

Ø Debate regarding power to amend constitution

Ø 24 the amendment
§ Keshavnanda bharti case

Fundmental rights can be amended without affecting basic structure

Ø Basic structure
Ø Few examples –judicial review etc

Article 14 (right to equality)

· Meaning everyone is equal before the law

· Few exception
Ø –president or governor is not answerable to the court of law (discharge of the
official function)

Establish rule of the law

Ø Lex supremus –law is supreme

3 important aspect
No man can be punished or made to suffer except for the violation of the law

All person are subject to the ordinary law of land without any bias
law must be in accordance with the provision of the constitution

·Equally protection of law

Ø Provide for positive discrimination

Right to equality

o Article 15
§ Article 15(1)
· Prohibition of discrimination against any citizen on ground only of
religion, race, caste, sex, place of birth or any of them
§ Article 15(2). Prohibits state and citizen to discriminate only on ground of
religion, race, caste, sex, place of birth or any of them in having access to public
places

· Helps in fighting evils like untouchability

§ Article 15(3)
· State can make special provisions for welfare of women and children
§ Article 15(4)
· Added after 1st amendment
· Special provision for advancement of any socially and educationally
backward classes of citizens (SC’s and ST’s)
§ Article 15(5)
· Added after 93rd amendment
· Empowers state to make special provision in favour of backward classes
in educational institution weather aided or unaided
· Provisions cannot be applied on minority educational institutions

o Article 16
§ Article 16(1)
· Provides for equality of opportunity in case of public employment
§ Article 16(2)
· Prohibits state from discrimination on ground of religion, race, caste, sex,
place of birth, decent, residence or any of them from having access to public
employment.
§ Article 16(3)
· Exception to Article 16(2)
· Parliament is empowered, residence as a ground to get certain categories
of employment under state government
§ Article 16(4)
· special provisions in favour of backward classes of citizens
· If backward class in question is socially and educationally backward and
is not adequately represented inn public service.
Indira Sawhney vs union of India case

· SC clarified legal position of reservation in jobs

· 27% reservation valid
· Introduced concept of creamy layer
· Gave a threshold of reservation of 50% ordinarily
· Reservation only at entry scale
· Reservation in promotion held unconstitutional
· Parliament inserted Article 16(4A) to nullify above judgement

§ Article 16(5)
· Empowers state to prescribe to prescribe religion as aground for
qualification and ground for certain categories of public employment

SC in Nagraj vs UoI 2006 said for reservation policy to be valid 5 condition

must be fulfilled
o Socially and economically backward
o Must not already be adequately represented in public service
o Creamy layer OBC’s must not be given benefits
o Total reservation in favour of BC must not exceed 50% of total seats
Reservation should not affect efficiency of the system

o Article 17
§ Abolishes untouchability in all forms
§ Only absolute right in Part III
§ Neither constitution nor parliament defined it
§ Judiciary defined it as a
§ Untouchability offence act 1995 now been amended as Civil Rights
Protection Act 1976
o Article 18
18[1] Abolition of title Except for military or academic distinction
§ Padma awards are considered as awards and not titles

18[2] No citizen can accept titles form foreign governments without president
consent
18[3] A foreigner holding an Office of Profit or trust under the state cannot
accept any title from any foreign state without the consent of President.
o Article 19
· Freedom of speech and expression
§ Liberal interpretation

v Hosting national flag is one the way to express

v Participation in sports

V Freedom to right to information

ü Right to information act 2005
· Not absolute right
Maintenance of friendly
relation with other country, morality and decency in society ,defamation
,contempt of court .

Article 19( 1)(b)-right to assembly peacefully without arms

Article 19 (1)(c)
§ Right to form association of any type
v Political association trade union
v Cooperative society -97 amendment
v Trade union –right to strike (not fundamental right)
v Supreme court –calling bandh is illegal

ü Disturb business and right to life

· Article 19( 1)(d)
§ No part of country shall be made inaccessible to the citizen

· Article 19(1)(e) right to settle and reside anywhere in india

·

Article 191(g) right to vocation (profession and trade )

o Article 20
· Article 20 (1)No man shall be convicted and sentenced for act which was
not criminal act at the time of its commission

·
Article 20(2)-No double jeopardy in court of law of single offence

· Article 20(3)- No person accused of an offence shall be compelled to be

a witness against himself.

§ Various cases were cited for clarity

o
o Article 21- Right to life and personal liberty except under procedure
established by law
· Article 21 make part 3 &4 of Indian constitution meaningful
· Due to liberal interpretation-Most evolved right of the constitution

· Bring out difference between police state and constitutional state

· Article 21 –composite right
· Various interpreted meaning discussed
· Different interpretation
§ Procedure established by law(originated in uk)
1. Is there any law
2. Law was made by competent law
3. Law made by proper procedure-will not examine motive or fairness of law
v Protection of arbitrary action of executive only
§ Due process of law(originated from usa)

v Law itself fair or not

v Provide protection against arbitrary action of both legislature and executive

· Principle of natural justice

Article 21 (a)-introduced by 86 th amendment act

Article 23
· It is prohibited to traffic human beings ,no forced labor.

Article 24
· Children less than 14 shall not work in hazardous employment
· Child labor amendment Law 2016
o Article 25
· Right to freedom of conscience

· Right to profess –To spell out his religious belief freely and openly
· Right to practice – Right of the individual follow the rituals prescribed
the religion
· Right to propagate

Article 26-Freedom to manage religious affair

o Article 27-
· True secular nature of Indian state
· Tax money cannot be spend to promote particular religion
· No tax collection –religious donation or fee can be spent

o Article 28 –religious instruction in educational institution

· Four distinct educational institution categories

Article 29 -30(cultural and education rights )

Article 29[1] both majority and minority

·

Article 30 – for to minority to establish and administer educational institution

Article 30[1A] minority EI enjoy Rtu. To property.
§ State can take over property of these institution in public interest

Article 32
Right to constitutional remedies
· In case of violation of fundamental rights
§

Power to issue order direction or writs direction

§ All Individual to directly approach supreme court
· Make all other fundamental rights workable
· Legal status to fundamental rights
· Important for achieving the goal of the part 3
· Heart and soul of the whole constitution

Parliament has the power to confer writ jurisdiction by means of law on

any other body

Article 32
· Various writ

1. Habeas corpus –bring body of

§ Can be issued against both private and public authority
§ Can be filed by individual and organisation on behalf of other
Principal of local standi does not apply

2. Mandamus –we command

§ Issued by judiciary –only against public authority

§ Can be issued for legal and public rights

§ Cannot be issued against authority using its discretionary power

3. Prohibition
§ Issued only against judicial or quasi judicial body

§ Writ prohibit the concerned authority from proceeding with the case

4. Certiorari
§ Issued to quash a judgement direction or order
ü Issue by judicial or quasi –judicial body going beyond jurisdiction

5. Quo-warranto
§ What is your authority
§ Purpose-qualified to hold the office

· Difference btw article 32 and article 226

§ 32-issue writ only for enforcement of fundamental rights
§ 226-fundamental +other legal rights
· Non enforcement of article 32
o Article 358-Automatically suspend enforceability of article 19
o Article 359-Declaration to declare suspend any fundamental right
§ Except article 21 right to life