Fundamental Rights, Duties and Directive Principles
FUNDAMENTAL RIGHTS•• Fundamental rights under Articles 15, 16, 19, 29 & 30 are applicable to Indian citizens.
•• The Fundamental Rights guaranteed by Articles 14,20,21, 21A, 22, 23, 24, 25, 26, 27 and 28 are available to all persons whether citizens or foreigners.
•• Some fundamental rights are negatively worded as prohibitions on the State like Articles – 14, 15(1), 16(2), 18(1),20, 22(1) and 28(1)
•• Fundamental rights which impose absolute limitations upon the legislative power cannot be regulated by the legislature are covered by Articles 15, 17, 18, 20 and 24.
•• All fundamental rights are guaranteed against state action.
•• If Rights under Article 19 and Article 21 are violated by an individual, legal remedies but not Constitutional remedies are available.
•• Article 12 defines the State which includes:
1. Government and Indian parliament i.e. executive and Legislature of the Union.
2. Government and legislature of the states.
3. All local and other authorities within the territory of India.
4. All local and other authorities under the control of GOI.
5. All other statutory or non-statutory authorities like LIC, ONGC, SAIL etc.
According to the Supreme Court, even a private body or an agency working as an instrument of the state falls within the meaning of the ‘state’ under Article-12.
•• Article 13 confers the power of judicial review to the courts of all legislative acts.
•• Supreme Court of India and State High Courts have this power under Article 32 and 226. They can declare a lawunconstitutional if it is inconsistent with Part III of the Constitution.
•• Power of judicial review is derived from Article – 13.The term ‘Law’ in Article-13 includes:(i) Permanent laws enacted by state Legislature/Parliament.(ii) Temporary laws i.e, ordinances issued by the President or Governor.(iii) Statutory instruments in the nature of delegated legislation.(iv) Non-legislative sources of law.Article-13 declares that a Constitutional amendment is not a law and hence can not be challenged.However as per the Supreme Court’s ruling in the Kesavananda Bharti case (1973), a constitutional amendmentcan be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the constitution and hence can be declared null and void.ARTICLE-14: Equality before law/Equal protection of Laws
•• Equality before law and equal protection of laws are different.
|Equality Before Law||Equal Protection ofLaw|
|Negative concept||Positive concept|
|Absence of special privilege due to birth, creed or like in the favour of any person. There is equal treatment before law.||Right to equality of treatment in similarcircumstances.|
|Dicey’s concept of rule of law.||Treated as due process of law.|
|Established law in England.||An American concept.|
‘Rule of Law’ is the “Basic Feature” of the Constitution which cannot be destroyed even by constitutional amendment under Article 368.
Exceptions to Rule of Law:
|361||Immunity to the President of India and State Governors.|
|361(1)||President of India and state Governors are not answerable to any court for exercise and performance of their powers and duties.|
|361(2)||No criminal proceedings can be initiated against President of India and state Governors during their term of office.|
|361(4)||No civil proceeding can be instituted during the term of office in respect ofany act done by President of India and State Governor in their personal capacity before or after they enter office till 2 months after the notice has been delivered to the President.|
|The foreign ambassadors and diplomats enjoy immunity from criminal and civil proceedings. The UNO and its agencies enjoy the diplomatic immunity.|
· Concept of equality provides protection against arbitrariness.
· Concept of equality promotes natural justice.
· Right to Equality incorporates Equal pay for equal. Work [Art 39(d)]. This is not a fundamental right but a constitutional goal under Articles 14, 16 and 39(d).
ARTICLE 15: Prohibition of discrimination on certain grounds:
|15 (1)||No discrimination on grounds of religion, race, caste, sex or place of birth can be made. It applies to matters under the control of the state.|
|15 (2)||Prohibits discrimination at public places (shops, public hotels, restaurants, well, tanks, bathing ghats etc.) and applies both to state and private individual.|
|15 (3)||Provisions for protection of women & children.|
|15 (4)||Provisions to protect interests of backward classes, 1st amendment Act, 1951.|
There are 3 exceptions to the rule of non-discrimination:1. The state can make any special provision for women and children.2. The state can make any special provision for the advancement of any socially and educationally backward classesof citizens.3. The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens.Note: This provision was added by the 93rd Amendment Act of 2005.
ARTICLE 16: Equality of opportunity in public employment
|16(1) and (2)||No discrimination in public employment on grounds of religion, race, caste, sex, descent, place of birth or residence.|
|16 (3)||Residence within a state is a qualification for appointment for any governmentpost.|
|16 (4)||For reservation of posts in govt. jobs in favour of any backward class.|
|16 (5)||Provides for the incumbent of any office, in connection with the affairs ofany religious or denominational institution or any member of the governingbody shall be a person professing a particular religion or belonging to a particular denomination is not a violation of the constitution.|
Mandal CommissionThe Second Backward Classes Commission was appointed under the chairmanship of B. P. Mandal in 1979 to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement. The Mandal Commission in its report identified as many as 3743 castes as socially and educationally backward classes.The Mandal Commission recommended for reservation of 27% government jobs for the other Backward classes(OBCs).Subsequently Ram Nandan Committee (1993) was appointed to indentify the Creamy Layer among the OBCs.•• National commission for Backward classes was established in 1993 by an act of Parliament.Note: The 76th Amendment Act of 1994 has placed the Tamilnadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 percent of reservation for exceeding the 50 percent ceiling.
ARTICLE 17 & 18: Abolition of Untouchability and Titles
|17||Abolition of Untouchability. The parliament has passed protection of civil rights act, 1955 to abolish untouchability.|
|18||Abolition of Titles except military and academic titles, i.e, Bharat Ratna, Padma Vibhushan, Padma Shri and National Awards.|
The Supreme Court held that the right under Article-17 is available against private individuals and it is the constitutional obligation of the state to take necessary action to ensure that this right is not violated.In 1996, Supreme Court upheld the constitutional validity of the National Awards – Bharat Ratna, Padma Vibhushan, Padma Bhusan and Padma Shri i.e. the court held that these awards do not amount to ‘titles’ within the meaning of Article-18.
ARTICLE 19•• Provides for 6 fundamental rights in the nature of freedoms. These are guaranteed to Indian citizens with reasonable restrictions.
|19(1)(a)||Speech & ExpressionFreedom of Press & Media. People’sRight toInformation||19 (2)8 grounds for restriction||Integrity and sovereignty of India|
|Security of the state|
|Friendly relations with foreign states|
|Decency and morality|
|Contempt of court|
|Incitement to anoffence|
|19(1)(b)||Freedomto assemblepeacefully||19(3)3Grounds for restriction||Assembly must bepeaceful.|
|Assembly must beunarmed|
|Restriction underArt 19 (3):Sovereignty andintegrity of IndiaPublic order|
|19 (1)(c)||FormFreedomto Associations||19 (4)3Grounds for restriction||Sovereignty andintegrity of India|
|19 (1)(d)||Freedomof Movement||19 (5)2Grounds for restriction||Interest of generalpublic|
|Protection of interestsof any ScheduledTribe|
|19 (1)(e)||Freedomof Residence||19 (5)2Grounds for restriction||Interest of generalpublic|
|Protection of interestsof ScheduledTribe.|
|19 (1)(f)||Freedomof Profession,Occupation,Trade or Business||19 (6)||By the state makingany law relating to:Protecting Publicinterest.|
|Establishing professional/technicalqualifications for aprofession/ occupation,trade or business.Enabling state toconduct any trade orbusiness excludingcitizens wholly orpartially.|
These six rights are protected against only state action and not private individuals.Freedom of speech and expression includes:•• Freedom of the Press.•• Right to Telecast.•• Freedom of Silence.•• Right aganist bundh called by a political party.•• Right to demonstration or picketing but not right to strike.•• With reference to freedom of Association the SupremeCourt held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out.The freedom of movement has two dimensions, i.e. internal (right to move inside the country) and external (right to moveout of the country and right to come back to the country).•• Article-19 protects only the first dimension. The second dimension is dealt by Article-21 (right to life and personal liberty).•• With reference to freedom of profession, no objection can be made when the state carries on a trade, business, industry or service either as a monopoly to the exclusion of citizens or in competition with any citizen.
ARTICLE 20 : Protection in respect of conviction for offences
•• Provides 3 safeguards to persons accused of crimes:
▪▪ Article 20 (1): Ex-Post facto law – no person shall be convicted of any offence except for the violation of ‘law in force’. Such protection does not apply in case of Preventive Detention.▪▪ Article 20 (2): Double Jeopardy – no person shall be prosecuted and punished for the same offence more than once.▪▪ Article 20 (3): Prohibition against Self Incrimination– no person accused of an offence shall be compelled to be a witness against himself.An ex-post-facto law is one that imposes penalties retrospectively, that is upon acts already done or which increases the penalties for such acts.•• A civil liability or a tax can be imposed retrospectively.
Article 21 and 22 : Protection of Life and Personal Liberty
•• Constitution provides for a two fold guarantee:▪▪ No person shall be deprived of his life and personal liberty except according to the law (Article 21).▪▪ Safeguards against arbitrary arrest and detention (Article 22).•• Prior to Menaka Gandhi Case (1978), Article 21 guaranteed the Right to Life and Liberty against arbitrary action of the executive. Article 21 now protects Right to Life andPersonal Liberty even from legislative action. It includes –•• Right to live with human dignity.•• Right to livelihood.•• Right to privacy.•• Right to shelter.•• Right to health and Medical Assistance.•• Right to free legal aid.•• Right against solitary confinement.•• Available to ‘citizens’ and ‘non-citizens’.•• Right to Education is a Fundamental Right under Article 21-A (86th constitutional Amendment 2002).•• Provision of Compensation if Article 21 is violated.•• Right to Death is not a fundamental right underArticle 21.ARTICLE 22: Protection against Arrest and DetentionArticle 22 grants protection to persons who are arrested or detained. Detention is of two types – punitive andpreventive.Punitive Detention is to punish a person for an offence committed by him after trial and conviction in a Court.Preventive means detention of a person without trial and conviction by a person for a past offence, but to prevent him from committing an offence in the near future.•• It includes▪▪ Right to be informed about the ground of arrest.▪▪ Right to be defended by a lawyer of his own choice.▪▪ Right to be produced before a magistrate within 24 hours.▪▪ No detention beyond 24 hrs except by order of the magistrate.No law providing for preventive detention shall authorize the detention of a person for a longer period than 3 months unless – an advisory board consisting of persons who are qualified to be appointed as judge of a High Court has reported before the expiration of the said period of 3 months that their is in its option sufficient cause for such detention.•• This right is not available to an enemy, an alien and a person arrested and detained under Preventive Detention.The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months.It is noteworthy that no democratic country in the world has made preventive detention as an integral part of the constitution as has been done in India.
Article 23 and 24: Right Against Exploitation•• Article 23: protects individual against actions of the state and private citizens. This right is available to both citizens and non-citizens.•• Article 23(i): prohibits traffic in human beings and forced labour,•• Article 23(ii): nothing in this article shall prevent state from imposing compulsory services for public purpose and in imposing such service the state shall not make any discrimination on grounds of religion, race, caste or class or any of them.•• Article 24: prohibits employment of children below 14 years of age in a dangerous occupation, factory and mines.The expression ‘traffic in human beings’ include :(a) Selling and buying of men, women and children like goods.(b) Immoral traffic in women and children.(c) Devadasis.(d) Slavery.Article-23 also permits the state to impose compulsory service for public purpose, as for example military service or social service.The child Labour (Prohibition and Regulation) Act,1986 is the most important law to enforce the rights granted under Article-24.In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurant.
ARTICLE 25 and 28: Right to Freedom of Religion•• India, under the constitution, is a “Secular State”, i.e. a state which observes an attitude of neutrality and impartiality towards all religions.•• There is no “State religion” in India. State will not establish a religion of its own, nor will it patronize any religion. This is implicit from:▪▪ State will not compel any citizen to pay any tax for promotion or maintenance of a religion or religious institution (Article 27).▪▪ No religious instruction shall be provided in an educational institution run completely by government funds.▪▪ Religious instruction can be imparted in educational institutions recognized by or receiving aid from the state, no person attending such institution shall be compelled to receive such religious instructions (Art 28).•• Article 25 guaranteed the Freedom of Conscience and Freedom to Profess, Practice and Propagate personal religion.•• Right to ‘Propagate’ under Article 25 gives the right only to disseminate the tenets of religion but it would not include the Right to Convert.•• States have made it a penal offence to convert or attempt to convert a person by means of “force, fraud orallurement”.•• Volunteer conversion with free consent is allowed.
•• Article 26 provides rights to every religious group or denominations:-▪▪ To establish and maintain institutions for religious and charitable purposes.▪▪ To manage its own religious affairs.▪▪ To own and acquire movable and immovable property.▪▪ To administer such property in accordance with national laws.Article-25 covers not only religious beliefs (doctrines) but also religious practices (rituals).Aricle-26 protects collective freedom of religion. Like the rights under Article-25, the rights under Article-26 are also subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights.Article-27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.In other words, the state should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion.
Cultural and Educational Rights•• Article 29 (1) guarantees to citizens having a distinct language, script or culture of its own, the right to conserve the same.•• Article 30 provides for the right to religious and linguistic minorities to establish and maintain educational institution to conserve their language, script or culture.•• Article 30 (2) prohibits the state from discriminating against any educational institution in grant of aid. No citizen shall be denied admission to educational institutions maintained by the state or receiving aid out of state funds on grounds of religion, race, caste and language.It is compulsory for unaided private institutions to give reservations to backward classes. Minority institutions are exempted from such obligation.•• Article 29 applies only to citizens.•• Article 30 applies to both citizens and non-citizens.
ARTICLE 31-A, 31-B & 31-C
|31 A||Facilitate agrarian reforms||1st Amendment, 1951|
|31 B||None of the acts mentioned in 9th Schedule shall be deemed to be void on the ground that they are inconsistentwith Part III of the constitution. Legislature is competent to amend andrepeal these acts.||1st Amendment, 1951|
|31 C||Empowers legislature to enact laws for implementing Directive Principles of State Policy under Articles 39 (b) &(c). Only Articles 39(b) & (c) have over-riding effect over fundamental rights.||25th Amendment, 1971|
•• Supreme Court has viewed that 9th Schedulemust come under Judicial Review. Sates have passed acts regarding reservations, and placed them under Schedule 9 to make them non-justiciable.•• Right to Property which was a fundamental right under Article 31, was repealed by 44th Constitutional Amendment, 1978. It was made a Constitutional Right under ordinary law under Article 300-A.
ARTICLE 32: Right to Constitutional RemediesArticle-32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. In other words, the right to get the Fundamental Rights protected is initself a fundamental right.•• It empowers a person to approach the Supreme Court directly for the enforcement of his Fundamental Rights.•• Right to Constitutional Remedies cannot be suspended except otherwise provided in the Constitution, i.e. during Emergency.•• Dr. Ambedkar called this article “the very soul and heart of the constitution.”
|WRITS UNDER ARTICLE 32|
|Habeas corpusmeans ‘to producethe body of’||Order to the person who has detained another to produce thedetainee before the court. This is issued to let the court knowthe grounds of confinement. This protects individual liberty.It is a powerful safeguard against arbitrary Acts not onlyof private individual but also of the Executive.|
|Mandamus means ‘a Command’||Commands a public or quasi- public legal person to performhis duty. The writ of mandamus can be issued by the court to enforce Fundamental Rights: whenever a public officer or a Government has committed an Act violating a person’s Fundamental Rights, the court can restrain that authority from enforcing such orders or committing such an act.|
|Prohibition means ‘to forbid’||Issued by Supreme Court or high court to a lower court forbidding it continue proceedings in a case beyond its jurisdiction or exercise jurisdiction which is not vested with it legally. The Supreme Court can issue the writ only where a Fundamental Right is affected because of jurisdictional defect in their proceedings.|
|Certiorari means‘to be certified’||Issued to a lower court after a case has been decided by itquashing the decision or order. It ensures that the jurisdiction of an inferior court or tribunals is properly exercised. While prohibition is available during the pendency of the proceedings and before the order ismade, certiorari can be issued only after the order has beenmade under similar circumstances.|
|Quo Warranto means ‘what isyour authority’||Issued by the court to enquire into the legality of claim which a person asserts to a public office.The writ of quo warranto enables the public to see that apublic office is not usurped by an unlawful claimant.|
▪▪ Article 226 gives power to High Court to issue writs.
▪▪ Article 32 is used for the enforcement of fundamental rights only, Article 226 is helpful for “any other purpose” also.While the Supreme Court can issue writs only for the enforcement of fundamental rights, whereas a High Court can issue writs not only for the enforcement of Fundamental rightsbut also for any other purpose.Therefore the writ jurisdiction of the High Court is wider than that of Supreme Court in this respect.However the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a High Court.
Parliament can empower any other court to issue directions, orders and writs of all kinds. Any other court does not include High Courts.Also constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental right during a National Emergency (Article-359).
▪▪ Courts also issue Injunction, which is not mentioned in the Constitution. It is issued against private persons.
▪▪ Public Interest Litigation (PIL):The traditional rule to apply for redressal of breach of fundamental rights. The personwhose right has been breached can approach the court (locus standi).
▪▪ Public Interest Litigation (PIL), borrowed from USA, is being applied for achieving larger public interest.Any public-spirited person can go to the court for redressal of breach of fundamental rights.
Brief Note of DPSP:
•• India borrowed the concept of Directive Principles from the Irish Constitution of 1937, who in turn copied it from the Spanish Constitution.
•• The DPSP are enumerated in Part-IV of the Constitution from Article 36 to 51.
•• Directive Principles are the ideals that the state should strive to achieve. Therefore, states should keep these principles in mind while formulating policies and enacting laws.
•• The Directive Principles resemble the ‘Instrument of Instructions’ enumerated in the Government of India Act of 1935.
•• DPSP embody the concept of a ‘welfare state’ and not that of a ‘police state’, which existed during the colonial era.
•• The Directive Principles are non-justiciable in nature, that is, they are not legally enforceable by the courts for their violation.
•• While fundamental rights aim at political freedom, DPSP aim at securing economic and social justice through appropriate state action.
•• They impose obligations on the state and give directions to take positive action to promote social welfare.
•• Articles 38 & 39 embody the Jurisprudential doctrine of “Distributive Justice”.
•• 42nd amendment Act (1976) added Articles 39-A, 43-A, 48-A.Provision for “Creation of Opportunities for healthy development of children” in Article39 (A).
|38||Social order based on justice and to minimise inequalities in income, status,facilities and opportunities.|
|39||Principles of policy to be followed by the State for securing economic justice in the form of:•• Means of Livelihood to all.•• Use of resources for common good.•• Prevention of concentration of wealth.•• Equal pay for equal work.•• Protection of workers.•• Protection of children and youth.|
|39 A||Equal justice and free legal aid to the poor. Legal aid and speedy trial arefundamental rights under Article 21 of the constitution available to all prisonersand are enforceable by the courts.|
|40||Organization of village panchayats.|
|41||Right to Work, Education and Public assistance in some cases.|
|42||Just and humane conditions of work.|
|43||Living wage for workers. Living wage and not minimum wage.|
|43 A||Participation of workers in management.|
|44||Uniform civil code.|
|45||Free and compulsory education for children.|
•• Borrowed from the Constitution of USSR.
•• Covered under Article 51-A (PART IV A) of the Constitution.
•• Added to the Constitution by 42nd amendment, 1976.
•• Added on the recommendations of “Swaran Singh Committee.”
•• Originally there were 10 duties, but Art-51-A (k) was added by 86th amendment act, 2002.(93rd amendment bill) to add one more fundamental duty.
ELEVEN FUNDAMENTAL DUTIES:
(a) To abide by the Constitution and respect its ideals and institution, the National Flag and the National Anthem.(b) To cherish and follow the noble ideals that inspired the national struggle the sovereignty, unity and integrity of India.(c) To uphold and protect the sovereignty unity and integrity of India.(d) To defend the country and render national service when called upon to do so.(e) To promote harmony and the spirit of common brotherhood.(f) To value and preserve the rich heritage of country.(g) To protect the natural environment including forests.(h) To develop scientific temper, humanism and the spirit of inquiry and reform.(i) To safeguard public property and to abjure violence.(j) To strive towards excellence in all spheres.(k) To provide opportunities for education to his child or ward between the age of six and fourteen years.
Characteristic features of Fundamental Duties:
•• Some of them are moral duties while others are civic duties.
•• Speaks of those values/norms which have been integral part of Indian tradition, mythology, religions and practices.
•• The Fundamental Duties are confined to citizens only and do not extend to foreigners.
•• The Fundamental Duties are non-justiciable.
•• There are not legal sanction against the violation of Fundamental Duties.
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