FRs
- Part III – A12-35
- Based in USA – Bill of Rights
- Part III as Magna Carta of India (Charter of Right issued by King John of England in 1215)
- Fr is to promote political democracy
- prevents authoritarian and despotic rule
- Limitation on
- the tyranny of the executive
- arbitrary laws of the legislature
- Govt of law and not men
- Fundamental bcos
- Rights are guaranteed and protected by constitution
- fundamental law of the land
- Most essential for the all round development(material, intellectual, moral and spiritual)
- Originally 7 FR's - A31 - Rt to property was deleted and made it legal right under A-300 in part XII by 44th CAA
- Equality - A14-18
- Freedom - A19 - 22
- Rt against exploitation - A23 - 24
- Rt to freedom of religion - A25 - 28
- Cultural and educational rights - A29-30
- Rt to property - A31 - 44th CAA made it a legal right u/A300-A in Part XII
- Rt to constitutional remedies - A32
- Features of FR's
- Some only to citizens
- Not absolute - can be restricted
- Against state and private individuals - If rights violated by pvt individuals then only legal remedies and not constitutional
- Negative - limitation on state
- Positive - privileges on the persons
- Justiciable i.e enforceable - most directly enforceable(self executory) or law by parliament only not state leg A35
- Approach Sc directly and not necessarily by way of appeal
- Not sacrosanct or permanent - parliament can change but basic structure
- National emergency - except A20 and A21 all Fr suspended
- But A19 - Freedom rights suspended only war and external aggression and not armed rebellion
- A33 - Armed forces, paramilitary, police forces and intelligence - no FR's
- A34 - Martial Law or military rule - Fr can be suspended
Definition of State
- A12 - govt and statutory and non-statutory authorities like LIC, ONGC, SAIL
- SC said even pvt agencies working as an instrument of the state
Laws inconsistent with FRs
- A13 - Law if inconsistent with FR then it is void - A32(SC) and A226(HC) Doctrine of judicial review
- Not only laws but also customary practices also
- But A13 say CAA is not law and can't be challenged but SC in keshawanada Bharati case 1973 changed it
FR's for citizens only
- A15 - discrimination on rrcsp
- A16 - Equal opportunity in public employment
- A19 - Freedom
- A29 - Protection of language, script and culture of minorities
- A30 - Rt's of minorities to establish and administer educational institution
Rt to equality - A14-18
Equality before law & Equal protection of Law
- A14-Equality before law(Br) - negative concept
- absence of any protection
- Equal subjugation
- No one above law - rich or poor
- A14-Equal protection of laws(USA) - positive
- Equal treatment under equal circumstances
- Similar application of same laws to all persons who are similarly situated
- Like should be treated alike
Rule of Law
- Concept of 'equality before law' is an element of concept of 'Rule of Law'
- A.V. Dicey, British Jurist
- 3 elements
- Absence of arbitrary power - no punishment without breach of law
- Equality before law - equal subjugation
- Primacy of the rights over constitution
- 1 & 2 Indian System
- 3 - Rights derived from constitution
Exception to equality
- Prez and governor
- Not answerable for the exercise of power and duties of his office
- No criminal proceedings during his term of office
- No arrest during term
- No civil proceeding until 2 months after notice
- No person is liable for publishing true report of any proceeding of legislature
- No MP or MLA is liable for anything said or voted in legislature or any committee
- A31-C comes in A14 goes out - DPSP in clause b and c not violative of A14
- Foreign rulers, ambassadors and diplomats enjoy immunity from criminal and civil proceeding
- UNO and its agencies enjoy diplomatic immunity
Prohibition of discrimination on certain grounds
- A15
- Only RRCSP
- Exception
- Women and children
- Socially and educationally backward classes and SC and ST
- Regarding admission even in pvt institution aided or unaided except minority educational institution - 93rd CAA in 2005 - In 2006 27% reservation to OBC - 2008 SC said reservation ok but creamy layer
- Creamy layer
- Constitutional post - Prez, VP, Judges SC and HC, Chairman and members of UPSC,SPSC,CEC,CAG
- Grp A officers/Class 1 and Grp B/Class II
- Colonel and above
- Doctors, lawyers, engineers, artist, authors, consultants
Equality of Opportunity in Public Employment
- A16
- 3 exception
- Parliament can prescribe residence - Public employment Act of 1957 expired in 1974 - Only AP has it
- SC,ST,OBC
- Incumbent of an office related to religious or denominational institution
- e.g - Hindu religious and charitable endowments department
Mandal Commission and aftermath
- 1979 - Morarji Desai Govt appointed 2nd Backward classes commission under chairmanship of B.P.Mandal, MP(1st - Kaka Kalelkhar 1955)
- 1980 report submitted
- 3743 castes 52% population identified
- 27% reservation declared in 1990 by V.P.Singh
- 1991 - Narashimha Roa
- Creamy layer
- 10% poor upper caste
- 1992 -Mandal Case
- Creamy layer
- No 10% for upper caste poor
- Not more than 50%
- Carry forward is valid but not more than 50%
- Not in promotion
- Permanent statutory body for complaint of inclusion and exclusion error
- Govt
- Ram Nandan Committee to identify creamy layer
- National Commission for Backward Class 1993
- 76th CAA Tamil Nadu reservation
- 69% under 9th schedule
- 77th CAA to add promotion
- 81st CAA Backlogs not under 50%
- 85th CAA added consequential seniority
Abolition of Untouchability
- A17
- In 1976, Untouchability act 1955 amended as Protection of civil Rights act 1955 in 1976 to enlarge scope
- Against both individual and govt
- Untouchability not defined in the constitution but Mysore HC defined it
Abolition of titles
- A18
- Except military and academic
- Prohibits foreign title
- Foreigners holding office of profit needs prez consent for foreign title
- No present,emolument, office from foreign state without prez consent
- Note: JP discontinued national awards in 1977 but revived in 1980 by IG
Right to Freedom
Protection of 6 rts
- A19
- Protection of 6 rts
- Speech and expression, assemble, association, movement, reside and settle, profession
- Originally 7 - Rt to acquire, hold and dispose of property deleted by 44th CAA 1978
- Against only state and not pvt
- Not foreigners and legal entities
Freedom of speech and expression
- Press
- Commercial advertisement
- Rt against tapping
- Rt against bundh by PP
- Rt to know about govt activities
- Freedom of silence
- Rt to demonstration or picketing but not rt to strike
- Rt against pre-censorship of newspaper
Freedom of assembly
- Peacefully without arms
- Only on public place
- No rt to strike
- Public order including traffic should not be affected
- Sec 144 CrPC can restrain assembly
- Sec 141 IPC - unlawful for 5 or more if the object is to
- Restrict execution of law or legal process
- Occupy property of some person
- To commit mischief or criminal trespass
- To force someone to do criminal act
- To threaten govt on exercising lawful powers
Freedom of association
- Co-operatives
- PP
- Companies
- Trade union - SC said no guaranteed rt to strike, bargain or declare lockout
- Not to form or join association
- Rt to obtain recognition of the association is not FR
Freedom of movement
- can be restricted on
- Interest of public - prostitutes and HIV
- Tribal areas
- Internal A19 and external A21
Freedom of Residence
- Reside and settle anywhere in the country
- Can restrict on
- Interest of public - prostitutes and habitual offenders
- Tribal areas
Freedom of profession
- Can restrict
- Prescribe professional or technical qualification
- Exclude certain profession to itself
Protection in conviction
- A20
- No ex-post-facto
- only criminal not civil or taxation law
- trial allowed
- preventive detention applicable
- No double jeopardy
- not against administrative authorities
- No self-incriminating
- doesn't include compulsory production of material object, fingerprint, signature, blood specimen, compulsory exhibition of body
- but only for criminal proceedings and not civil proceedings
- No ex-post-facto
Protection of life and liberty
- A21
- Gopalan case 1950
- Protection against only exe and not leg - bcos procedure established by law
- Menaka case 1978
- due process of law - so leg also included
- SC said A21 also includes
- Livelihood
- Pollution free water and air
- Human dignity
- Privacy
- Shelter
- Health
- Education upto 14
- Free legal aid
- Against solitary confinement
- Speedy trial
- Handcuffing
- Against inhuman treatment
- Against Delayed execution
- Rt to travel abroad
- Against bonded labour
- Against custodial harassment
- Emergency medical aid
- Timely medical treatment in govt hospital
- Rt not to be driven out of state
- Rt to fair trial
- Rt of prisoners to have necessities of life
- Rt of women to be treated with decency and dignity
- Against public hanging
- Rt to hearing
- Rt to information
- Rt to reputation
Rt to education
- A21A - 6 to 14 - only elementary education FR
- 86th CAA 2002 added it
- The dawn of the 2nd revolution in the charter of citizen's rights
- Earlier A45 Part IV free & compulsory education for children - this DPSP not enforceable
- So 86th CAA changed A45 education until 6 years + new FD u/A51A to provide opportunity for education from 6 to 14
- Even before in 1992 - SC rt to education till med or engineering
- 1993 - overruled, till 14, above that subject to capacity of state
- RTE 2009 u/A21A
Protection against arrest and detention
- A22 - 2 parts
- Part 1 - ordinary law for punitive detention
- grounds of arrest communicated
- Rt to legal practitioner
- Magistrate within 24 hours
- Released after 24 hrs unless magistrate authorises
- Not applicable under preventive detention
- Part 2 - for preventive detention
- Cannot exceed 3 months unless advisory board (44th CAA 3 to 2 but not yet enforced)
- Grounds of detention communicated but may not be needed on public interest
- Opportunity to make a representation
- A22 authorises parliament to prescribe
- circumstance in which preventive detention can be extended for more than 3 months without advisory board's recommendation
- max period of detention
- procedure to be followed by advisory board
- Leg power
- parliament exclusive on defence, foreign affairs & security of India
- both parliament & state on security of state, public order, maintenance of supply & essentials
- USA and UK & no democracy have it
Rts against Exploitation
Prohibition of traffic in Human Beings and Forced Labour
- Both citizens and non citizens
- Both against state and pvt persons
- Selling buying,immoral traffic and devadasi and slavery
- Forcing to work against the will - not only physical but also economical i.e no minimum wage
- But state can force for military and social service
Prohibition of Employment of Children in Factories
- Child Labour Prohibition Act 1986
- 2016 Amendment
- Below 14(child) all occupation prohibited - only family enterprise & child artist after school
- 14-18(Adolescent) prohibited hazardous occupations & processes(83 to 3)
- from 18 occupation and 65 processes to just 3
- mining, explosives, and occupations mentioned in the Factory Act
- Imprisonment of 6 months to 2 years or fine 20k to 50k or both. Repeated offence 1 to 3 year
Rt to Freedom of Religion
Freedom of conscience and free profession, practice and propagation of Religion
- A25
- both religious doctrines and rituals
- Both citizen and non citizen
- State can regulate or restrict any economic, financial, political or other secular activity
- Hindus also include sikhs ,jains, buddhists
Freedom to manage religious affairs
- A26 - protect collective freedom
- SC said religious denomination must satisfy 3 things
- System of belief or doctrine is conducive to their spiritual well being
- Common organisation
- Distinctive name
- So Ramakrishna mission and Ananda Marga are religious denominations within Hindu religion and Aurobindo Society is not a religious denomination
Freedom from taxation for promotion of a religion
- A27 - but fee can be collected at pilgrimage sites for maintenance
- Can't be taxed for promotion but taxes can be used for promotion and maintenance of all religion and not one religion
Freedom from Attending Religious Instruction
- Completely owned by state - not permitted
- Every other form(receiving aid, established by trust but administered by state) - permitted
- Attendance to religious instruction is voluntary if minor, consent of parents is must
Cultural and Educational Rts
Protection of Interests of Minorities
- A29
- Distinct language, script, culture
- Both religious a.w.a linguistic minorities and also sections of citizens(majority also)
- Rt to conserve language include rt to agitate for protection of language
- Hence political promises to conserve language doesn't amount to corrupt practice under RPA 1951
Rt of minorities to establish and administer educational institution
- A30
- On compulsory acquisition give compensation that doesn't abrogate the rt guaranteed
- In granting aid the state shall not discriminate
- Only to minorities - religious/linguist & no sections of society
- Term minorities not defined in constitution
- Minority educational institution (3)
- Recognition + aid
- Only recognition
- Neither recognition nor aid
- The 1st two are regulated on academic standards
Rights to constitutional Remedies
- A32 - most imp article, soul and heart of constitution - By BRA
- Sc directly for FRs
- Writ power to SC
- Parliament can empower any other court(except HC as A226 empowers HC with writ)
- A32 suspended on National Emergency
- part of basic structure
- Sc as defender and guarantor of FR
- Original (directly SC not appeal) and wide(not only order or directions but also writs
- Only Fr not any other rt
- Jurisdiction of FR original and not exclusive
Writs - types and scope
- A32 SC and A226 HC
- Parliament can empower any other court also for writs but so far no
- Before 1950 only Calcutta, Bombay and madras HC writs
- Writs borrowed from English law where they are called prerogative writs bcos prerogative of king
SC vs HC writs
SC | HC | |
---|---|---|
Rt type | FR | FR & Legal Rt |
Jurisdiction | Whole Country | Only state |
Discretion | 1. can't refuse bcos A32 is FR 2. So defender & Guarantor | 1.Discretionary 2.Only defender |
Habeas corpus
- To have the body of
- Bulwark of individual liberty against arbitrary detention
- Public and pvt
- Exception
- Lawful detention
- Contempt of leg and j
- By competent of court
- Detention outside jurisdiction of court
Mandamus
- We command
- To perform his official duty
- Directs activity
- Against public authority
- Corporation
- Inferior court
- Tribunal
- govt
- Exception
- Pvt
- Departmental instruction that don't have statutory force
- Discretionary duties
- To enforce contractual obligation
- Prez and govr
- CJ HC
Prohibition
- To forbid
- Higher court to lower court or tribunal
- Directs inactivity
- Only preventive
- Only J and quasi j
- Exception
- Administrative authorities
- Leg
- Pvt
Certiorari
- To be certified
- To be informed
- Higher court to lower court or tribunal to transfer case to itself or quash the order
- Excess of jurisdiction or lack of jurisdiction or error of law
- Preventive and curative
- Against
- J
- quasi-J
- administrative authority
- Exception
- Leg
- Pvt
Quo-warranto
- By what authority or warrant
- By court on legality of holding public office
- Only against substantive public office of permanent character created by statue or constitution
- Exception
- Ministers
- Pvt
Armed Forces & FRs
- A33 - armed, para, intelligence, police - no FR
- Only parliament not state
- Cannot be challenged in court
- Also include civil members of armed forces
- Court martials not under jurisdiction of SC and HC
Martial law & FR
- A34 - implicit martial law or military rule - not defined in constitution
- Military Rule = Civil administration run by military authorities
- From English common law
- Actions taken can't be questioned in SC or HC
- Even condemn to death
- SC said habeas corpus not suspended
Martial Law vs National Emergency
Martial Law | National Emergency | |
---|---|---|
Casuality | Only FR | FR, CS Relation(fin, leg, exe) |
Status of govt & courts | Suspended | not suspended |
Coverage | specific areas | whole country or specific areas |
Purpose | restore law & order | 3 - war, external aggression & armed rebellion |
Constitutional provision | no specific provisions | specific & detailed |
Effecting certain FR
- A35 - power to make laws to give effect to FR
- Only parliament - so uniformity throughout
- Prescribing residence as a condition - A16
- Empowering court other than SC and HC on writ
- Restricting FR for armed forces
- Indemnifying any govt servant for acts during martial law
- Compulsory lawmaking by parliament
- Punishment for untouchability, trafficking, forced labour
- Even some of the above falls under state list parliament can make laws
Present position of Rt to property
- Originally u/A19(1)(f)(to hold, acquire and dispose) and A31(rt against deprivation)
- A31
- both citizen and non-citizen
- Only public purpose and compensation must
- 44th CAA removed the above two from FR and made it legal right or constitutional right under A300A in Part XII
- Implications
- Ordinary law amendment
- Protects pvt property against exe action and not leg action
- Cannot directly move to SC
- No guaranteed rt to compensation
- Part III - some provisions
- Compensation in case of minority institution - 44th CAA
- Land under personal cultivation and land within statutory ceiling - 17th CAA
Exception to FR
- Article 31A
- Saving of laws providing for acquisition under 5 categories
- Estate
- Management of properties
- Amalgamation of corporation
- Director and shareholder rights
- Mining rights
- JR unless presidential assent
- compensation & market value if land is under personal cultivation & within ceiling limit
- Saving of laws providing for acquisition under 5 categories
- A31 B
- Immunises any law if under 9th schedule
- But in 2007 SC not after 1973
- A31 C
- Saving of laws giving effect to DPSP by 25th CAA
- A39(b or c) in contravention of A14 and A19 is ok
- No law containing declaration can be made void - SC in KB case unconstitutional
- 42nd CAA extended A39(b or c) to any A39 - Minerva mill case unconstitutional
- Saving of laws giving effect to DPSP by 25th CAA
Criticism of FR
- Excessive limitation on FR - Limitations on FR or FR and limitations thereon
- No social and Economic rts(rt to work, social security, rest) - USSR and China
- No clarity - vague phrases like public order, minorities, reasonable restriction, public interest
- Constitution was made by lawyers for lawyers
- Paradise of lawyers
- No permanency
- Only JR can save
- Suspension during emergency
- Except A20, 21
- Expensive remedy
- Preventive detention
- No democratic country has it
- No consistent philosophy so difficult to interpret - Sir Ivor Jennings
Significance of FR
- Bedrock of democratic system
- Necessary condition for the material and moral protection of man
- Bulwark of individual liberty
- Rule of law
- Interests of minorities
- Secular fabric
- Check the absoluteness
- Foundation stone of the social equality and social justice
- Dignity and respect
- Participation of people
Right outside Part III
- Constitutional or legal right or non-fundamental
- No tax shall be levied or collected except by authority of law A265 part XII
- No deprivation of property without law A300
- Trade throughout India A301
- Adult suffrage A326 PartXV