Fundamental Rights

Wednesday, May 24, 2017 1:53 PM

• Ensures Political Democracy

• Inspired by US 'Bill of Rights' & Moti Lal Nehru's Report (1928)
• Based on Rule of Law and Liberalism
• Called as Fundamental Rights because they are assured by constitution & called as Fundamental because as they are most
essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.
• Features:
○ Justiciable
○ Not Absolute but qualified (court can review restriction)
○ Negative in character
○ Can be Amended (provided basic structure not disturbed)
○ Restrictions:
 External Emergency- Only 20 & 21 Survives
 Internal Emergency- 20, 21 + 19 also
• Classification of FR-
○ Right to Equality (Art 14 to 18)
○ Right to Freedom (Art 19 to 22)
○ Right Against Exploitation (Art 23 and 24)
○ Right to Freedom of Religion (Art 25 to 28)
○ Cultural and Educational Rights (Art 29 to 30)
○ Constitutional Remedies (Art 32)
• NOTE-
○ Right to Property (Art 31) was removed by 44th Amd of 1978. Now it is a LEGAL right under Art-300-A
○ Right to Information is statutory right under RTI Act 2005.

Articles Related to FR:

Art No. Provisions Details Exceptions Remarks

Art 12 Definition of 'State' • Parliament + MPs + Union Note: Judiciary can be
Executive treated as 'State' only
• SLA + MLA + State Executive while it is performing
• ULBs + Other LBs administrative functions.
• Govt. Org + Officials Hence when Judiciary is
• Any Pvt. firm working with acting as state, Writ can
Govt. (SC Verdict) be issued against it.
Art 13 Doctrine of 'Judicial • Any law inconsistent with FR is • Constitutional Amendment is • Any laws or
Review' Null & Void not law hence cannot be amendment is subject
reviewed by Judicial Review to Judicial Review by
BUT as per Keshavnanda case it SC (Art 32) or HC (Art
was said that if Basic Structure 226)
is modified then it can be
reviewed by Judiciary
Art 14 • Equality before law • No special privileges to any • Permits reasonable • British and US
• Equal Protection of Law person classification of persons Concepts respectively
• Equality under similar • Privileges to President, • Provided to: All
circumstances only Governor, Diplomats, etc. • Against: State only
Art 15 (1) Prohibition on • 5 grounds (Religion, Race, Special provisions can be made • Provided to: Citizens
discrimination on 5 Caste, Sex & Place of birth)- for- only
grounds RRCSP • 15(3)- Women & Children • Against: State only
• 15(4)-
Socially/educationally
backward class (OBC), SC &
ST- DORAIRAJAN case
• 15(5)- Reservation for

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 • 15(5)- Reservation for
above 3 classes in all
educational institutes
(govt.+ pvt.)
Art 15(2) No discrimination in • --Same-- • --Same-- • Provided to: Citizens
Public Places only
• Against: State + Pvt.
individual
Art 16 No discrimination in govt. • 7 grounds (5+ Descent & • 16(3)- Parliament can make • Provided to: Citizens
jobs Residence) RRCSP+DR some specific restrictions on only
particular class of govt. jobs • Against: State Only
• 16 (4)- Govt. can make
reservation for any
backward/SC & ST class in govt.
jobs
• 16 (4A)- reservation in
promotion only for SC/ST & not
OBC
• 16(4B)- Vacancies reserved can
be published next year
separately without reservation
ceiling condition
• 16(5)- Religious inst. Post can
be held reserved for special
religion person.
Art 17 Untouchability • Offence as per law which is to • Parliament made
be made by Parliament Protection of Civil
Rights Act, 1955 for it.
• Provided to: All
• Against: State + Pvt.
Individual
• Cognizable and non-
compoundable offence
Art 18 Abolition of Titles • Citizen cannot accept any title • Military & academic titles • Provided to: All
from foreign country allowed • Against: State only
• for non-citizens to accept
foreign title, President
permission is must
• no govt. employee shall
accept any gift or office
without President permission
Art 19 Freedom Rights • 6 rights • Speech: • Provided to: Citizens
a. Speech • Sov & Int of India Only
b. Assembly • Security of India • Against: State Only
c. Associations • Friendly Rel • Govt. monopoly in 3
d. Move freely • Public Order sectors- (rail & atomic
e. Reside & settle, • Decency & morality energy)
f. DELETED (property) • Contempt of court
g. Profess any occupation • Defamation
• (SAUMRP) • Incitement to offence
• Assembly
• Sov & Int of India
• Public Order
• Association
• Sov & Int of India
• Public order
• Morality

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 • Morality
• Movement
• Public Interest
• Tribal Interest
• Residence
• Public Interest
• Tribal Interest
• Profession
• Public Interest
Art 20 Protection against • 20(1) No ex-post facto (i.e. Ex-post facto only for Criminal • Provided to: All
arbitrary and excessive only existing law violation cases • Against: State Only
punishment to accused makes crime) • Lesser sentence can be
• 20 (2) No Double Jeopardy given for crime
• 20(3 )No Self-incrimination • Brain mapping, Narco-
test & Lie detector test
not permitted.
• DNA fingerprinting
permitted
Art 21 Protection of Life and • Provided to: All
Personal Liberty • Against: State Only
• Capital Punishment,
Suicide & Encounters
related Cases
(Unacademy)
Art 21A Right to Education • only elementary education, 6 • Provided to: All
to 14 years • Against: State Only
• Inserted by 86th Amd.
of 2002
Art 22 Protection against arrest 1. Arrest Protection (only to • No such protection available to • Provided to: 22(1):
and detention Citizens): inform grounds, enemy aliens 22(1) Citizen only
consult and defend by 22(2): to all
advocate, present to • Against: State Only
Magistrate within 24 hours • Parliament can remove
2. Preventive Detention condition of advisory
Protection (both citizens and board consultation for
friendly alien): inform extending punishment
grounds, self defence by making law.
opportunity, max 3 months
which can be extended if
advisory board (judges of HC)
Art 23 Prohibition of Human • State can ask for compulsory • Provided to: All
Trafficking, Begar or service without any • Against: State + Pvt
Forced Labour discrimination on grounds of (4
grounds)- Religion, Race, Caste
& Class
Art 24 Prohibition on Child • less than 14 years allows children to work in family • Provided to: All
Labour any factory, mines, Hazardous entp. After school hours • Against: State + Pvt
employment • Cha-> child, chaudah &
Chaubis
• Hazardous emp:
mining, inflammable &
hazardous as per
factories act works.
Art 25 Individual freedom • conscience, profess, practice • 25 (2)(a) State can regulate or • Provided to: All
& propagate religion (but not restrict any activity related with • Exp I: Carrying Kirpan is
conversion) religious practice. profession of Sikh

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 conversion) religious practice. profession of Sikh
• With restriction on ground- • 25 (2)(b) Hindu Religious Religion
Pub Order, Morality & Health institutions can opened for all • Exp II: Hindus = Sikhs,
classes of Hindus (SC/ST, etc.) Jains & Buddhist
Art 26 Group freedom • maintain religious • Provided to: All
denomination (inst.), manage • Religious denomination
affair, own, acquire & must have-
administer property • Grp of individuals
• With restriction on ground- with system of
Pub Order, Morality & Health belief conducive
for spiritual well-
being
• Common org
• Designated with
distinct name
Art 27 No Religious Taxes • For promotion of any • fees can be collected for • Provided to: All
particular religion. religious purposes • Against: State Only
Art 28 Religious Instructions in • 4 condition on Religious Inst: • Provided to: All
particular educational • Govt. inst-> NO
institutions • Trust inst-> if trust wants
• Govt aid-> no one can be
forced; minor with
parent consent
• Govt recog-> Same
Art 29 Protection of Cultural, • Any section has right to • Provided to: Citizens
Language & Script interest conserve distinct language, Only
of Minorities script & culture (Group Right)
• No discrimination in any govt.
institutes on 4 grounds-
(Religion, Race, Caste &
Language) (NOTE: Sex not
given) (Individual Right)
Art 30 Freedom of estb & adm of • Minorities are free to manage • Land of minority institution can • Provided to: Minority
religious institutions by their educational institutions be taken in law made for such Citizens only
Minorities (Linguistic or • They have right to property acquisition but rehab provisions • Minority is any group
Religious) • Govt. grants for education are to be as mention in that which is less than 50%
inst. should not discriminate acquisition law & it should be of population.
minority institutions such that right guaranteed
should be fulfilled.
Art 31A Saving 5 laws from being 5 laws are- • Protects from Art 14 &
challenged of FR curtailing • Acquisition of any jagir or Art 19 invoking
other similar grants by • Judicial review is still
govt. possible
• taking over management
of property by govt.
• Amalgamation of
corporations
• removing or modifying
rights of shareholders of
any company
• removing or modifying
mining leases
Art 31B Saves laws under 9th Sch. • Scope of 31B is wider
than 31A as more
number of laws
protected under it.

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 protected under it.
In Jan 2007, SC said
that all the laws under
sch 9 inserted after 24
Apr 1973 & affecting
basic feature are open
to judicial review
Art 31C Saving laws implementing • Laws to implement these two • 42nd Amd. Tried to
DPSP 39(b) & 39(c) DPSPs will not be null & void extend it to all DPSP
even if they are affecting but SC restricted in
Art14 & Art19 Minerva Mills Case.
• these DPSP related to
distribution of
resources uniformly i.e.
economic equality.
Art 32 Right to Constitutional • Right to move to SC directly in • HC can issue writs (Art
Remedies case of FR violation 226) in FR cases +
• SC has power to issue writs other cases also. Hence
only in case of FR violation its writ issuing power is
• Parliament can empower any more.
other court to issue writs • can be restricted
• Art 32 termed as Basic during national
Structure, hence can't be emergency
removed. • Heart and Soul as per
Ambedkar
Art 33 Parliament can restrict FR • All Armed Forces Personnel • So that they cannot
for Armed Forces included (combating and non- pull govt. in court for
personnel, other forces & combating staff) FR violation.
Agencies • Any forces used in
maintenance of Public order.
• Intelligence Agencies also.

Art 34 Restricts FR during

Martial Law
Art 35 Laws for FR • Parliament alone can make
implementation laws.
• even on the state list subjects
• FR can be amended without
disturbing basic features

Important doctrines of Judicial Review:

• Doctrine of Severability: law (Art 13 wala) is null and void to the extent it is inconsistent with FR
• Doctrine of Eclipse: law declared null and void above do not die permanently or sometimes its inconsistent part is only null
and void, they can reused if not abridging FR.
• Doctrine of Literal Interpretation: reading the exact words of constitution
• Doctrine of Liberal Interpretation: meaning interpret
• Doctrine of Prospective Ruling: Overrule the previous judgement for better decision taking in new cases
• Doctrine of Harmonious Construction: FR and DPSP read together & no superior and inferior in them
• Doctrine of Basic Structure: certain basic features of Constitution cannot be altered by Parliament

Other important Rights:

• Art 265: Tax can be collected only by authorised body
• Art 300-A: right to property (Legal Right)
• Art 301: free trade & commerce in India
• Art 326: voting rights

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Writs:
• Borrowed from British concept
• SC only for FR; HC for FR + other cases
• SC writs valid all India while HC writs only in its jurisdiction
• SC cannot refuse (as Art 32 FR); HC might refuse (if not FR case)
• Types-

Writ Can be issued against Details

Habeas Corpus govt. or pvt. Body • Present person who is detained 'Unlawfully'; lawful detention not included
(have body)
Mandamus govt. bodies & courts • govt. body or lower court to perform assigned work (ask activity)
(we command) • Cannot be issued against- pvt. Body, President, Governor & Judges of
SC/HC
Prohibition judicial or quasi-judicial body • Ask lower court or quasi-judicial body to be in its jurisdiction (ask inactivity)
Certiorari judicial or quasi-judicial body • Transfer case to higher court (Certiorari -> Sarkao)
(to be certified)
Quo-Warranto govt. office • Court can ask legality of claim of person to public office
• Cannot be issued against ministerial office or pvt. office

• NOTE: Differences
○ Certiorari is preventive & curative in nature; Prohibition only preventive
○ Mandamus ask activity while Prohibition ask inactivity
○ All the writs except Quo-Warranto can be issue only for victim.

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DPSP
Wednesday, May 24, 2017 1:54 PM

• Inspired from Irish Constitution

• As per Ambedkar- 'Novel Feature'
• Features:
○ Ideals for formulating governmental policies
○ Instruction to legislature
○ Seek to establish socio-economic democracy
○ Non Justiciable and legally non-enforceable

Articles related to DPSP:

Article No. Details

Art 36 • definition of 'State'
Art 37 • utility of DPSP: Fundamental in GOVERNANCE of Country
Art 38 • Welfare State by inequality reduction
Art 39 a) Adequate livelihood {a->adequate}
b) Distribution of material resources
c) No concentration of 'Wealth and resources {b & c -> material & wealth dist}
d) Equal pay for equal work {direct baat}
e) Health and strength protection (women and tender age children) {e-tendering}
f) Healthy development opportunity for children {f-> fun loving & healthy child}
Art 39 A • Equal Justice & Free legal aid
Art 40 • Village Panchayats
(Gandhi)
Art 41 • Right to Work & Education
• Public Assistance for unemployed, old age, sick and disabled
Art 42 • Human condition at work and Maternity Relief
Art 43 • Living wage & decent life
• Cottage industries promotion
Art 43 A • Worker in management of industries
Art 43 B • Promotion of Co-operative societies
Art 44 • Uniform Civil code for Citizens
Art 45 • Early childhood care and education (0-6 years)
Art 46 • Promotion of education and economic interest of SC, ST & OBC
Art 47 • Raise nutritional level and public health;
(Gandhi) • Ban on intoxicating drinks and drugs
Art 48 • Organisation of Agriculture and Animal husbandry;
(Gandhi) • Ban on cow slaughter
Art 48 A • Protection of forest and environment
Art 49 • Protection of Monuments & places of national importance
Art 50 • Separation of Executive and Judiciary
Art 51 • International Peace and Security

NEW DIRECTIVE PRINCIPLES :

• 42 Amd-
Art 39(f)-> Healthy development opportunity for children

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 ○ Art 39(f)-> Healthy development opportunity for children
○ Art 39A-> To promote equal justice and to provide free legal aid to the poor
○ Art 43A-> To take steps to secure the participation of workers in the management of industries
○ Art 48A-> To protect and improve the environment and to safeguard forests and wild life
• 44 Amd-
○ Art 38-> minimise inequalities in income, status, facilities and opportunities
• 86 Amd-
○ Art 45-> Primary education was made fundamental right and 0 to 6 years care as duty of state
• 97 Amd-
○ Art 43B-> Co-operative Societies

Conflict between DPSP and FR

• Champakam Dorairajan case (1951):

○ in case of any conflict between FRs and DPSP, FR would prevail. Hence DPSP is subsidiary to FR.
○ Word 'Law' of Art 13 does not mean Const. Amd.
○ It also held that FR could be amended by the Parliament by through constitutional amendments.
• Parliament Response:
○ 1st Amd -> 9th Sch & 31 B
○ 4th Amd ->
○ 7th Amd ->
• Shankari Prasad Case (1951):
○ Challenged 1st Amd (9th Sch) {black box}
○ Upheld 1st Amd -> no limitation in amending FR
• Golaknath case (1967):
○ FR cannot be amended for the implementation of DPSP (prospective overruling)
• Parliament Response:
○ 24th Amd-> Art 368 beyond judicial review & mandatory for president to assent const. amendment bill + art 13 not
applicable to art 368.
○ 25th Amd-> Art 31C i.e. 2 DPSP above FR (Harmonious Construction)
• Kesavananda Bharati case (1973):
○ Judicial review possible (2nd provision of 25th Amd)
○ basic feature of the Constitution cannot be taken away
○ Amending and rewriting const. different
• Parliament Response:
○ 42 Amd-> Art 31C extended to all DPSP, hence DPSP > FR
• Minerva Mills case (1980):
○ DPSP were once again made subordinate to FR.
○ First time doctrine of basic structure was used and judicial review was made as basic structure.
○ Harmonious interpretation of the two.

DIRECTIVES OUTSIDE PART IV

• Claims of SCs and STs to Services->Article 335
• Instruction in mother tongue at primary stage-> Article 350-A
• Development of the Hindi Language -> Article 351

IMPLEMENTATION OF DIRECTIVE PRINCIPLES

• FYP for securing socio-economic justice and reducing inequalities of income, status and opportunities.
• Land reform laws passed by almost all the states
• Various Laws-
○ Related to Labour-> Min. Wage Act, Child Labour Act, Trade Union Act, etc.
○ Related to Women-> Maternity Benefit Act (1961) and Equal Remuneration Act (1976)
• Steps to utilize financial resources-> nationalisation of life insurance (1956), nationalisation of 14 commercial banks (1969),
nationalisation of general insurance (1971), abolition of Privy Purses (1971)
• to provide
• Free and competent legal aid to the poor-> Legal Services Authorities Act (1987) & Lok Adalats
• Social -> Various schemes

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• Social -> Various schemes
• Environment-> Wildlife (Protection) Act, 1972 and Forest (Conservation) Act, 1980

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