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
  1. Absence of arbitrary power - no punishment without breach of law
  2. Equality before law - equal subjugation
  3. 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

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
  1. System of belief or doctrine is conducive to their spiritual well being
  2. Common organisation
  3. Distinctive name
  4. 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

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

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
• 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

Criticism of FR

1. Excessive limitation on FR - Limitations on FR or FR and limitations thereon
2. No social and Economic rts(rt to work, social security, rest) - USSR and China
3. No clarity - vague phrases like public order, minorities, reasonable restriction, public interest
   • Constitution was made by lawyers for lawyers
   • Paradise of lawyers
4. No permanency
   • Only JR can save
5. Suspension during emergency
   • Except A20, 21
6. Expensive remedy
7. Preventive detention
   • No democratic country has it
8. 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