Fundamental Rights

Introduction
The largest written Constitution in the world. It consists of 395 articles, 12 schedules and 22 parts
Origin and development
In the Part 111 of the constn Considered Magna Carta of India England France American Inclusion based on modern democratic thought.

 Need for FRts

Essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government

 Speaking about the importance of FRts in Maneka Gandhi v. Union of India Bhagwati observed
These FRts represent the basic values cherished by the people pf this country(India) since the vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent These are most essential for the attainment by the individual of his full intellectual, moral and spriritual status Negation keeps moral and spiritual life stunted and his potentialities undeveloped.

 Striking a balance b/w individual liberty and social need

Unrestricted liberty to individuals becomes a licence and jeopardises the liberty of others If State given absolute power the result would be tyranny. Balance by enumerating the FRts and setting limits within which they can be curtailed.

 Suspension of Frts.
Article 358- Emergency by President under Article 352 Article 19 will be suspended Article 359_ President to suspend the right to move any Court for the enforcement of rights except Article 20 and 21.

Entity called State Art. 12

Include- Government, Parliament, Govt & legislature of States, and all local and other authorities within the territory of India or under the control of the Govt. of India.

Eg- Electricity board, Air India, Nationalized Banks, FCI (instrumentality or agency of State-statutory power, authority created under statute or even a non-statutory authority exercising Public functions

Instrumentality or agency of State

1. Entire share capital held by Government 2. Financial assistance by State is so much as to meet almost entire expenditure 3. Enjoys monopoly status which is State conferred or State protected 4. Existence of deep and pervasive State control 5. Functions of public importance and closely related to Govt. function 6. Department of Govt. transferred to Corporation.

 Art 13.- all laws existing so far as inconsistent with this part shall be void to the extent of inconsistency 13(2)-State not make any law which takes away or abridges the FRts- extend of inconsistency be void. Law includes -ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law Laws in force-passed by legislature, existing before Constitution not previously repealed Nothing apply to an amendment of the constn under Article 368

Art 13 Justiciability or enforceability of FR

 Certain basic rights which cannot be abrogated by State Articles 14-32 Grouped under seven heads Rt to equality Art.14-18 Rt to freedom Art.19-22 Rt against exploitation Art.23-24 Rt to freedom of religion Art.25-28 Rt to cultural and educational rt Art.29&30 Rt to Property- diluted- secured to some extent by Arts.30-A,31-A,B,C Rt to Constnl remedies Art-32

The Fundamental Rights

Explanation- FRts
Art 14 The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India
No special privilege
Exception- foreign diplomats, President, State Governors, Public officers & judges from judicial process

2nd part
Same laws alike & without discrimination to all similarly situated

Case laws
D.S.Nakara v. Union of India-AIR 1983 SC 130
Liberalised pension scheme for retired Govt servants after certain date- violating Art 14

Air India v. Nergesh Meerza- AIR 1981 SC 1853

Termination of service on her first pregnancyarbitrary & violating

Pathumma v. State of Kerala -AIR 1978 SC 771

Kishan Singh v. State of Rajasthan- AIR 1955 SC 321
Fixing fair and equitable rent in Marwar regionchallenge not applicable to whole state- rejected Law enacted to give relief to agricultural debtors

Art 15
1. Bar State from discriminating any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them 2. Disability, liability, restriction or condition to access shops, restaurants, wells, tanks roads and placeetc.
Exception Art 15(3) & 15(4) against 15(1) & 15(2)
Not prevented from making any special provision for women and children Special provision for the advancement of

Case law
Yusuf Abdul Aziz v. State of Bombay U/s.497 of the IPC, 1860 the offence of adultery can be committed only by a male and not a female who cannot even be punished as an abettor. This section makes special provision for women and children, and is thus saved under Art. 15(3). Moosa v. State of Kerala AIR 1960 Ker 355 An order acquiring land for constructing a colony for harijans is now valid under Art 15(4)

Art 16
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Case Law State of M.P. v. Ramashankar RaghuvanshiAIR 1983 SC374 The SC has deprecated the tendency of denying appointment to a person in govt. service on the ground of his political beliefs. It offends Art. 14&16-past political affinities- likely to affect the integrity and efficiency of the individuals service.

Art 17
Untouchability is abolished & practice forbidden-enforcement of any disability is offence & punishable Case law State of M.P. vs. Puranchand AIR 1958 MP 352 Denial of assess to jain templeground non jain not being harijan do not constitute offence

Art 18
No title except military or academic distinction shall be conferred by the State.

Article 19
All citizens shall have the rt
a)To freedom of speech and expression b)To assemble peaceably and without arms c)To form assns or unions d)To move freely throughout the territory of India e)To reside and settle in any part of the territory of India g)To practise any profession, or to carry on any occupation trade or business.

Exception to Art 19(2) to (6)

Reasonable restrictions in the interest of sovereignty & integrity of India, security of State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Case laws-19(1)(a)
Bennett Coleman & Co. vs Union of IndiaAIR 1973 SC 106
Shortage of indigenous newsprint due to shortage of foreign exchange quantity imported not adequate- newsprint quota taken as base1970-71 or71-72- other restrictions as to no. of pages that could be printed-legality of govt. policy- by majority SC policy unconstitutional- govt could not control the growth and circulation of newspapers. Post quota restrictions void as infringing the fr to speech as given by Art 19(1)a.

 Bharat Kumar K Palicha vs.State of Kerala AIR 1997 Kerala 291.

the frt of people as a whole cannot be sub servant to the claim of frt of an individual or only a section of the people A Bandh is a warning to a citizen that if he goes for work or opens his shop he would be prevented. It does not fall under the rt of speech.

19(1)(c)
P. Balakotaiah vs. Union of India-AIR 1958 SC 242 submission-Dismissal from servicebeing trade unionist-denial of rightsc rejected plea impuned order do not prevent continuing to be trade unionist-but no fundamental right to remain in Govt service-service terminated-could not complain.

19(1)(g)
Nashirwar v. State of M.P-AIR 1975 SC 360 No rt to carry on trade in liquorpublic morality, public interest & the harmful and dangerous characteristics of liquor. Police power of State to enforce. Reference to Art 47

 Clash b/w FRts.

 Mr. X v. Hospital Z-(1998)8 SCC 296 The SC held that in case of conflict b/w the fundamental rights of two parties- i.e. the right of privacy of one and the right to healthy life of the other, then, only that right which would advance public morality or public interest would be enforceable.

Art 20
Protection in respect of conviction for offences-(1)conviction except for violation of law (2) cannot be prosecuted or punished for the same offence more than once (3)accused of any offence- compelled to be witness against himself

Case law
Dushyant Somal v. Sushma SomalAIR 1981 SC 1027 Criminal proceedings against father kidnapping child-from lawful custody of mother. Later habeas corpus-directed to produce- protected by 20(3). Sentence to imprisonment for cccriminal prosecution not a fortress against all other actions in law.

Art 21
Protection of life and personal liberty No person shall be derived of his life or personal liberty except according to procedure established by law.

Right to life
Rt to live with human dignity Healthy environment Pollution free air, water Protection against hazardous industries Free education upto 14 years of age Emergency medical aid Rt to health Privacy Rt to shelter Rt to livelihood, which includes rt of succession Timely medical treatment in govt. Hospital

Rt not to be driven out of a state Rt to fair trial Speedy trial Free legal aid, where conviction for an offence may involve loss of life or personal liberty

Art 21A Rt to education

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

Art. 22 Protection against arrest and detention in certain cases

1) No person who is arrested shall be detained in custody without being informed
Grounds for such arrest

Nor shall be denied

the rt to consult and to be defended by a legal practitioner of his choice

Conti..
2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate

Conti.
3) Nothing in clauses 1 & 2 apply
a) to any person who for the time being is an alien enemy b) to any person who is arrested or detained under any law providing for preventive detention

4) No law providing for PD shall authorize the detention of a person for a longer period than 3 months unless

a) Advisory Board persons qualified to be appointed as Judges of HC reported before the expiration of such period- sufficient cause for such detention But not above maximum period prescribed by any law of Parliament u/sub-cl (b) of cl 7 Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses a) and b) of clause 7.

Conti
5)when any person detained under order for preventive detention-authority communicate to the detained grounds of order and afford earliest opportunity of making a representation against the order 6) if the authority considers disclosure of any fact against public interest- need not disclose. 7) Parliament may by law prescribe

a) the circumstances, class or classes of cases under which person may be preventively detained for more than 3 months without obtaining opinion of Advisory Board b) Maximum period for any class or classes of cases c) procedure to be followed by Advisory Board in an inquiry under sub-clause (a) of clause (4)

Analysis
2 parts 1 & 2 apply to persons arrested under a law otherwise than a preventive detention law Clauses4 to 7 apply to persons arrested or detained under a preventive detention law. Grounds- not only narration or conclusion of facts But also all materials on which those facts or conclusions which constitute grounds are based (Sophia Gulam Mohd. Bham vs. State of Maharashtra AIR 1999 SC 3051) Arrest- do not cover civil arrest or deportation of an alien or action by court itself.

Art. 23 Rt against exploitation

Prohibition of traffic in human beings and forced labour- beggar and other similar forms of forced labour are prohibited and contravention an offence punishable in accordance with law. Do not prevent State from imposing compulsory service for public purposes but in imposing that shall not make any discrimination on grounds only of religion, race, caste or class or any of them

Art.24 Prohibition of employment of children in factories etc.

No child below 14 years of ageemployed to work in any factory, mine or engaged in any other hazardous employment

Rt to freedom of religion
Art 25- Freedom of conscience and free profession, practice and propagation of religion Subject to public order, morality and health to the other provisions of this part, all persons are equally entitled to. Nothing here shall affect the operation of existing law or prevent the State from making any law
Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice Providing for social welfare and reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

 Explanation 1- wearing and carrying of Kirpans shall deemed to be included in the profession of the Sikh religion Explanation 2-Cl 2 Sub cl b Hindus construed to mean Sikh, Jaina, Buddhist religion

Freedom to manage religious affairs Art.26

a) b) c) d)

Subject to public order, morality and health, every religious denomination shall have rt toestablish and maintain institutions for religious and charitable purposes To manage its own affairs in matters of religion To own and acquire movable and immovable property To administer such property in accordance with law

Analysis
Broad principle State can make laws to regulate but not take away the whole rt of administration Art 26 is not subject to Part III provisions

Art. 27
Freedom as to payment of taxes for promotion of any particular religion No person shall be compelled to pay any taxes ( essential consequence of secularism. Tax is a compulsory extraction of money for public purpose)

Art 28
Freedom of attendance at religious instruction or religious worship in certain educational institutions 1) No religious instruction provided in EI wholly maintained out of State funds 2) Exception-EI administered by State but established under any endowment or trust which requires religious instruction 3) No person attending EI recognised/ receiving aids from State need not compulsorily attend- if minor guardians consent.

Cultural and Educational Rights Art. 29 Protection of interest of minorities 1) any sections having distinct language, script or culture of its own- have right to conserve the same 2) No denial of admission to education institution maintained/ receiving aid from State funds- only on grounds of religion, race, caste, language or any of them.

Art.30 Rt of minorities to establish and administer educational institutions

All minorities (based on religion or language) have right to establish and administer educational institutions of their choice. 1A) In making law for compulsory acquisition of property of educational institutions- State shall ensure the amount fixed by or determined for acquisition would not restrict or abrogate the right guaranteed under that clause 2)In granting aid to EI State not discriminate against any EI on ground that it is under the management of minority whether via religion .

 Art 31 Compulsory acquisition of Property-repealed by Constn 44th Amendment Act 1978

 1. 2. 3. 4. 5.

Saving of laws providing for acquisition of estates etc. No law providing for acquisition, extinguishment /modification Taking over for unlimited period in public interest, secure proper management of property Amalgamation Extinguishmentor modification of any rights of managing agents, secretary, treasurer The extinguishment or modification of any rights accruing by agreement, lease or licence, for the purpose of searching for / winning of oil,premature termination or cancellation of any such agreement.

Art 31 A

 Art 31 B- validation of certain Acts and Regulation Art 31 C- saving of laws giving effect to certain directive principlesNotwithstanding anything contained in Art 13, No law giving effect to the policy of State towards securing Part iv shall be deemed to be void on grounds of inconsistency, or takes away or abridges any of the rts conferred by Arts14 or 19 And no law declaring that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy

Art 32-remedies for enforcement of rights conferred by this part 1. Rt to move SC. 2. SC power to issue directions, orders or writs 3. Without prejudice to the powers of SC, parliament by law empower any other court, all or any of the powers exercisable by the SC under cl2 4. The rts guaranteed by this article shall not be suspended except as otherwise provided by this Constitution.

42nd Amendment Act 1976 Of Indian Citizens Part IV- A Abide by Constitution and respect its all ideals and institutions, National Flag, National Anthem Cherish and follow the noble ideals that inspired our national struggle for freedom Uphold and protect the sovereignty, unity and integrity of India

Fundamental Duties

 Defend the country and render national service when called upon To promote harmony and common brotherhood amongst all the people of India- to renounce practices derogatory to the dignity of women To value and preserve the rich heritage of our composite culture To protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures

Cont

 To develop the scientific temper, humanism and the spirit of enquiry and reform To safeguard public property and to abjure violence To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement