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Fundamental Rights Of Indian Citizen | Articles 12-35

Fundamental rights of Indian citizen

Fundamental rights of Indian citizen

 

List of fundamental rights of India | Article 12-35

 

Introduction of fundamental rights

The concepts of Fundamental rights is taken from United sates. In United sates, Fundamental rights are known as “Bill of rights”. In UK, they are recognized as “Magna Carta” in 1215

Magna Carta was the recognizing the fundamental rights in the world. The England King John Edward declared the rights in the form of Magna Carta. 

Magna – Big

Carta – Charter

In Germany, Fundamental Rights are known as “Basic rights”

In 1911 Kolkata session of congress,  for the 1st time made a resolution on rights

In 1931 Karchi session of congress, Sardar Vallabhai Patel made a resolution for Fundamental Rights

In Constituents Assembly, there was committee on Fundamental rights headed by Sardar Vallabahi Patel

and Sub Committee on Fundamental rights headed by J.B Kripalani

 

Rights is a claim to do certain things which are not prohibited by law, Usually they are two types of rights

a) Moral Rights

b) Legal Rights

 

Moral Rights

Moral rights which are derived on based on moral values, ethical principles of society. If these moral rights are recognized by the state or Government and enforced through the court, then all such known as legal rights

If legal rights is recognized in the constitution and placed in transcendental position(Special position) then all such rights are known as Fundamental rights

 

Characteristics Features of Fundamental rights

 

1) Fundamental Rights are Justifiable nature, which means if Fundamental rights is violated or not implemented , the aggrieved citizens can directly move to Supreme court and seek constitutional remedy in form of “writ”


2) Fundamental rights are Non Absolute in Nature, which means
very right was corresponding limitation


3) Some Fundamental rights are positive in nature and some are negative in nature


4) Certain Fundamental rights are also available to foreigners or aliens

Example: Article 14, Article 20, Article 21


5) Certain Fundamental rights are limited available to certain category of people  

Example : Arm forces, Police, prisoners


6) Certain Fundamental rights are non self executory such as rights required supported legislature for their implementation

Example: Article 17 and Article 24

 

Classification of Fundamental rights

 

There were Originally 7 Fundamental rights, Presently there are 6 Fundamental rights

a) Right to Equality (Articles 14-18)

b) Right to Personal freedoms (Articles 19-22)

c) Rights against exploitation (Articles 23 -24)

d) Right to religions (Article 25-28)

e) Cultural and educational rights and minorities (Articles 29-30)

f) Right to Property (Article 31)

g) Right to constitutional remedies (Article 32)

 

Note: Right to Property under Article 31 along Article 19(F) was repealed from list of Fundamental rights and transposed to Part 12, Article 300A by 44th Amendment 1978

However, 3 new Article were added to main Article 31 i e., Article 31A, 31B, 31C

 

Fundamental Rights of Indian constitution

 

Article 12 of Indian constitution: Definition of state
This article defines the state. State include central, State government, Union Territories, Local government, Universities boards and any agency of Govt and Corporation

Note: Co-operative societies do not come under state. Judiciary comes under state partially if it discharges functions of executive

 

Article 13 of Indian constitution: Laws inconsistent with or in derogation of the Fundamental rights
This articles defines Laws. Any law which is against Fundamental rights is declared as unconstitutional and subsequently held invalid

Law Include, Any Act of the parliament, state legislature , ordnance of President of India and Governor, Notification of Government , Government Ads and even convection and customs of the people which are recognized by Government come under law

Note: Article 13 provides power of Judicial review to the Supreme court

Judicial Review, Power of Supreme court or High court to examine the legality and constitutionality of law. If it is against constitution that law will be declared as Ultra-Vires subsequently Null and Void

The word or expression Judicial review is not mentioned in Article 13. The power of Judicial review is explicit

 

Right to Equality (Articles 14-18)

 

Equality means prohibiting all kinds of discriminated which are man made


Article 14 of Indian constitution:
Equality before law
This article says, No person shall be deprived of equality before law or Equal protection of laws

Equality before law is taken from England which is similar to Rule of law in England. Rule of law is propounded by A.V. Dicey

Equality Before Law: It means there will be only one law in the country, all are subjected to that law irrespective of their status and rank without any discrimination

But this is not applicable to President of India and Governor. i.e., No Criminal case can filed against President of India and Governor that means they are not answerable to any court for their omission and commission

However civil cases can filled against President of India and Governor with 2 months advance notice

Reason: To Protect Sanctity and Highness of the President of India and Governor

Equal Protection of law implies, among the equals- law must be administered equally. Among unequals, if there are unequal condition, law must be administered unequal

This implies social justices which is also known as progressive discrimination or positive discrimination (Reservations)

Constitution provides No class legislation but there is classification of the people while applying the law

In Mandal Case (Indrasahane Case 1992) Supreme court held creamy layer concept in reservation, Creamy layer is only applicable to OBC

Creamy layer means there are forward people in backward caste or class and there are backward people in forward caste or class

 

Article 15 of Indian constitution: Prohibition of discrimination on grounds of religion, race, caste, sex,or place of birth
This article says, People should be not discriminated only on the bases of race, religion, caste, sex and birth

All the place of public utility must be open to all people without any discrimination. However, special exemption may be give to women and socially educationally backward class

 

Article 16 of Indian constitution: Equality of opportunity in matter of public employment
This Article says, citizens should not be discriminated in matter of public employment only on the ground of race, religion, caste, sex, birth , descent, resident

But Government may exempt or provide special convenience to people of socially economically backwards and special consideration were given on based on residence/locality – Locals and Non Locals

Note: In 1995 by 77th Amendment, a clause was added to Article 16(4a) providing reservation in subsequent promotions. Supreme court of India has stuck down this provision in Uttar Pradesh in power corporation case

However, UPA-II initiated 117th Constitution amendment providing reservation in the promotions

 

Article 17 of Indian constitution: Abolition of untouchablility
This article says, Untouchablity is crime. Parliament of India made prohibition of untouchable Act 1955. This Act was amended and renamed as Protection of Civil rights Act 1976

Other Act mainly, Prevention of Atrocities against SC/ST 1989

 

Article 18 of Indian constitution: Abolition of titles
This article says, Abolishing of titles however civilian awards, gallantry awards like Bharth Ratna, Padma Sir, Bhushan etc and also academic distinctions can be given

 

Right to Personal freedoms (Articles 19-22)

 

These rights are guarantee in form of personal freedom

Article 19 of Indian constitution: Protection of certain rights regarding freedom of speech etc
This Article guarantees 6 Personal freedoms

a) Freedom of speech and expression

b) Freedom to assembly

c) Freedom to form union and association

d) Freedom to movement

e) Freedom to residence and settlement

f) Freedom to acquire property

g) Freedom to take up carry on any profession or trade or occupation

Note: Article(f) is repealed. It no more fundamental right, it is transposed to Article 300A

The above stated rights are applicable to only Indians Not Foreigners. 

 

Freedom of speech and expression

Supreme court held that freedom of expression includes even expressing the views of others also. It is possible through media/Press. So Freedom of press is implicit in expression

Expression also includes, commercial talk(Ads). Supreme court held this view in Tata yellow pages case.

Freedom of Expression also includes Freedom of protest. However strikes are not a fundamental right,  Supreme court held in Bharth Kumar case vs Kerala and RagaRajan Case Vs Tamil Naidu.

Supreme court also held that forcible bandh is volition of Article 19 and Article 21

 

Issues relating Freedom of speech Right

Actress  Kushubu Vs TN (2011)

Living relation i e., Men and women living together without marriage is not crime


Palghat incident (Maharashtra)

Relating to expression through social network, Information technology Act 2000, 66A. Restriction or limitation on freedom of expression

Reasonable limitation imposed on Freedom of speech and expression on the ground of law and order, security, defense morality, healthy relations among the people, maintaining friendly relation with other country and contempt of court

 

Freedom of Assembly

Assemble without lethal arms(deadly arms). However Sikhs can be assemble with tradition Kirpan

The movement can also restricted on grounds of  Cr.Pc144 section(Criminal procedure code)

 

Freedom to form Union and association

Some Union and association not allowed like in armed force, Police personnel and Prisoners. They cant form unions. Even Unethical union are not allowed

 

Freedom of movement

Movement is also restricted in certain place in defense establishments and Govt installation

 

Article 20 of Indian constitution: Protection in respect of conviction for offenses
This Article says, No person shall be punished and prosecutes expect for the violation of law that on force. The Act committed by person must be crime at time of commission i.e., criminal laws will have present and prospective effect but not retrospective effect. This is known as Expost Facto(Now and after note before)

No person shall be punished more than once for the same crime, which is know as No double punishment, or No Double Jeopardy

 

Article 21 of Indian constitution: Protection of life and personal liberty
This article says, No Person shall be deprived of his life and liberty expect according to procedure established by law

Initially Article 21 provides protection against executive wrongs only, however in 1978 Menka Gadhi case, Supreme court held that procedure is not some procedure, Procedure must be just and reasonable

So Supreme court employed the doctrine Due process of law from America(Proper Procedure)

Note: Procedure established by law is taken from Japan


Supreme court has liberally, extensively, progressively, interpreted the scope of Article 21. Supreme court opined, life is not just mere life, life with dignity is self awareness, self effectiveness

Dignity flows from education, so education is fundamental rights. This view held in 1992 Mohini Giri Case Vs Kerala, Unikrishnan case Vs Andra Pradesh

Note: In 2012, Aruna Shanburg case Supreme court held that mercy killing is not allowed in India. 

In that same way Supreme court held that IPC 309(Suicide case) is most inhuman and barbaric section and it should be repealed immediately

Supreme court also expanded the life in term of Right to Pollution free environment, Right to safe and drinking water, Right to soundless sleep

 

Article 21A of Indian constitution: Right to elementary education
Free and compulsory primary education to all the children between age 6-14 yrs. This was added in 2002 by 86th Constitution Amendment

It Came into force in 1 April 2010

 

Article 22 of Indian constitution: Protection against arrest and detection in certain cases
This Article Says,

a) There must be cause of arrest

b) There must be warrant for arrest

c) Right to be heard, Right to represent himself

d) The arrested person must be produced nearest court magistrate within 24 hrs from the time of arrest. So that court examines the legality of arrest

Note: But these protection are not available against all the arrest like PD Acts(Preventive detection Acts)

 

Rights against exploitation (Articles 23 -24)

 

Article 23 of Indian constitution: Prohibition of traffic in human begins and forced labor
Article 23 is not implemented automatically, Parliament of India must make laws for implementation 

Some of Laws are

a) SITA Act 1956

Suppression of immoral traffic prevention Act, Now it is known as Immoral traffic Prevention Act (ITA)

b) In descent representation of women 1986

c) Domestic violence protection Act 2005

d) Protection of dowry Act 1961

 

Article 24 of Indian constitution: Prohibition of employment of children in factories etc
This Article says Child labor is crime

 

Right to religions (Article 25-28)

 

Article 25 of Indian constitution: Freedom of conscience and free profession,practice and propagation of religion
This Article says, Very individual according to his free will can profess, preach, practice and propagate religion of their choice

However these can be regulated on the ground of religions harmony, maintaining law and order, protecting civil society from uncivilized practices

 

Article 26 of Indian constitution: Freedom to manage religious affairs
This Article says, freedom of establishing religions and management of religion institutions

 

Article 27 of Indian constitution: Freedom as to payment of taxes for promotion of any particular religion
No tax shall be imposed or people shall not be compelled to pay tax on the bases of religion. However Fee can be collected on the bases of religion but not tax

 

Article 28 of Indian constitution: Freedom as to attendance at religious instruction or religious worship in certain educational institutions
This Article says, No particular religious teachings shall be given in a Govt aided and educational institutions

Note: BiJoe Emmanuel Vs Kerala 1987 case, this also known as National Anthem case

In this case Supreme court held that singing of National anthem is not compulsory if it is against the religion faith of community

Cultural and educational rights and minorities (Articles 29-30)

 

Article 29 of Indian constitution: Protection of interest of minorities
There are 2 types of minorities, they are

a) Religions minorities

b) Linguistic minorities

Religions minorities: Expect Hindus, all are minorities in India

Linguistic minorities: Differ from state to state

Any section of people in any part of India who is a having a distinct culture, language and script have right to protect them

 

Article 30 of Indian constitution: Rights of minorities to establish and administer educational institutions
This Article says, minority community can establish special educational institutions in order to promote, protect, reserve their culture, language and script

 

Article 31 of Indian constitution: Repealed

Article 31A of Indian constitution: Saving of laws providing for acquisition of estates etc

Article 31B of Indian constitution: Validation of certain acts and regulations

Article 31C of Indian constitution: Saving of laws giving effect to certain directive principles

Article 31D of Indian constitution: Repealed

 

Article 32 of Indian constitution: Right to Constitutional Remedies
Dr Amebedkar observed that Article 32 is heart and soul of the constitution. Without Article 32 right, all fundamental rights are nullity

The significance of this right to ensure the protection and enforcement of the fundamental rights i.e., If any Fundamental rights is violated or not implemented the aggrieved citizen can directly move to supreme court and seek remedy which is can extra ordinary remedy namely constitutional remedy in the form of writ

Article 32 is Remedial right i e, remedy demanded as right. so it is remedy as well as right

Article 32 is fundamental right of fundamental rights

Note: Supreme court gives writs under Article 32, High court gives writs under Article 226


Even district court can also give writs provided parliament is empowered to them, so far No such power is given to them

Difference between Article 32 and Article 226

Article 32Article 226
a) Supreme court issue writs only for protection of Fundamental rightsa) High court issues writs not only fundamental rights even to protect other legal rights
b) Writ issued by Supreme court is applicable to all persons in Indiab) Writ issued by High Court are applicable to territorial limits of states
c) Supreme court writs as a matter of fundamental rightc) High court issues writs as a matter of facility
d) Supreme enjoys primary jurisdiction in issuing writs d) Person cannot demand writ as right in High court

 

Concept of Writ is borrowed from England. There are 5 types of writs 

a) Habeas Corpus

b) Mandamus

c) Prohibition

d) Certiorari

e) Quo Warranto

 

Habeas Corpus: It means “You May Have The Body”

It is order issued by Supreme court/High court directing the police to bring body of person dead or alive before the court who has been arrested

The purpose of writ is to protect personal freedom from Article 19-22

This is very liberal writ in the sense that even a post card or SMS or any means of communication will be considered as writ and Habeas Corpus can be issued. Even the court can issue Suo Moto 

 

Mandamus: It means ” To Command or Order “

This writ issued by court directing public officers or authorities to do their legal duty, if they are not doing such duties. The purpose of this writ is to get things done by the offices by court

Limitation:
This writ is available as a ultimate alternative if all administration alternatives have been extorted

More over, it can not given against President of India, Governor, Private individuals, Institutions if they don’t discharge their duties

 

Prohibition: It Means ” Not To Proceed”

It is writ issued by High court to lower courts directing the lower court not to proceed on the case until further order as since lower court is exceeding limits

The purpose of this writ to prevent the lower court if they exceed their limits. This Writ is issued against judicial and Quasi Judicial bodies only

 

Certiorari:

This is the writ issued by High court to lower court quashing/stuck-down their judgement and directing the lower to transfer the case to higher court since lower court is exceeded its limits

So the purpose of this writ is same like Prohibition. But the difference between Prohibition and Certiorari is procedure i e., prohibition is available at beginning of case and Certiorari is at end of case

Note:
a) Prohibition is preventive in nature(In beginning)

b) Certiorari is curative in nature (In the End)

 

Quo- Warranto: It means “By What Authority”

This writ is issued by Supreme court or High Court directing the holder of public officer to prove legality in holding such office. Otherwise he/she directed to vacate the office

So the purpose of this to prevent public officers from wrongful entry as well from misuse

 

Article 33 of Indian constitution: Power of Parliament to modify the fundamental rights in their application to forces etc
This Article says that parliament can restrict the rights available to armed force, defense personnel and other essential services

 

Article 34 of Indian constitution: Restriction on fundamental rights while martial law is in force in any area
This Article says, when there Martial law(Military rule) parliament can indemnify(protect) the actions of armed forces which are done in connection with security, law and order maintenance

 

Article 35 of Indian constitution: Legislation to give effect to some of the provisions of fundamental rights
Parliament is empowered to make a law prescribing punishment for the crimes mentioned in the fundamental rights

Example : Article 17, Article 23, Article 24

 

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