Fundamnetal rights

Genesis

The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights (approved on September 17 1787, final ratification on December 15, 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on August 26, 1789) Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history.

In 1919, the Rowlatt Acts gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications.

In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government.

In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defense of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom.

Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.

A notable development during that period having significant effect on the Indian constitution took place on 10 December, 1948 when the United NationsGeneral Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.

Part III of the Constitution, containing the Fundamental Rights is described as the cornerstone of the Indian Constitution.

Together with the Directive Principles of State Policy, the Fundamental Rights are said to constitute the conscience of the Constitution.

These basic rights of individuals are regarded as fundamental because they are most essential for the attainment by the individual of his full intellectual, moral and spiritual stature.

These rights act as limitations on the State. It must be stressed, however that Fundamental rights guaranteed to individuals under the Constitution are not absolute rights. There cannot be any such thing as absolute and uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The fundamental rights guaranteed to individuals are not to override national security and general welfare of the society. They are subject to restrictions. In the Constitution of India, usually every right is accompanied by elaborate restrictions and the Constitution further authorizes the Parliament to impose restrictions, provided such restrictions are reasonable and not arbitrary.

Definition of state under art 12

In this Part, unless the context otherwise requires, the State¨ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
The word "State" has different meanings depending upon the context in which it is used. The expression "The State" when used in Parts III & IV of the Constitution is not confined to only the federating States or the Union of India or even to both. By the express terms of Article 12, the expression "the State" includes :

(i)      the Government of India;

(ii)     Parliament of India;

(iii)    the Government of each of the States which constitute the Union of India;

(iv)    the Legislature of each of the States which constitute the Union of India;

(v)     all local authorities within the territory of India;

(vi)    all local authorities under the control of the Government of India;

(vii)   all other authorities within the territory of India; and

(viii)  all other authorities under the control of the Government of India.

(ix)    StateInstrumentalities: Authorities constituted under and corporations established by statutes have been held to be instrumentalities and agencies of the Government in a long catena of decisions of the Supreme Court.

(x)     According to Supreme Court, even private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12

Art 13

Laws Inconsistent With or In Derogation of Fundamental rights

(1)     All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (Doctrine of Eclipse)

(2)     The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (Doctrine ofseverability)

(3)     In this article, unless the context otherwise requires,-

(a)    “Law¨ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b)     “laws in force¨ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4)     Nothing in this article shall apply to any amendment of this Constitution made under article 368.

Judicial review and the fundamental rights

Judicial review is the power of courts (Supreme Court and the High Courts) to declare a law unconstitutional and void if it is inconsistent with any of the provisions of the Constitution to the extent of its inconsistency. So far as the contravention of the Fundamental Rights is concerned, this power is specially enjoined upon the courts by the Constitution, in Art 13. The power of judicial review is available to the courts not only against the legislature but against the executive as well.

Amendability of fundamental rights

Art. 13 clause 2 states that the State shall not make any “law” which takes away or abridges, the rights conferred by Part III of the Constitution and any law made in contravention to Art. 13(2) shall, to the extent of contravention, be void. The question is, whether the word “law” as used in Art. 13(2) include Constitutional Amendment Act or not? If an Amendment Act is not covered under “law”, then the Parliament can amend any or all the fundamental rights; otherwise the fundamental rights are unamendable.

The Supreme Court starting from Shankari Prasad V. Union of India (1952) to Sajjan Singh V. State of Rajasthan (1965), held in a number of cases that the word “law” as found in Art.13 (2) should be taken to mean `rules or regulations made in exercise of ordinary legislative power’ and not to `Amendments to the Constitution made in exercise of constituent power’ of the Parliament. The Supreme Court, therefore, was of the view that the Parliament by exercising its amending power under Art.368 conferred on it by the Constitution can amend any part of the Constitution including Part III.

But in Golaknath V. State of Punjab (1967) the Supreme Court overruled its earlier decisions and held that the Fundamental Rights embodied in Part III, had been given a `transcendental position’ by the Constitution, including the Parliament exercising its amending power under Art.368 was not competent to amend the Fundamental Rights. The court was of the view that the word “law” in Art.13(2) included amendment to the Constitution as well. But by the 24th Amendment Act 1971, the Parliament amended Arts.13 and 368 to make it clear that the Parliament has the power to amend any part of the Constitution including Part III of the Constitution and the word “law” as used in Art.13 does not include a Constitutional Amendment Act.

Among other things, the 24th Amendment Act was challenged before the Supreme Court in the Kesavananda Bharati V. State of Kerala case in 1973. The Court in that case held that the Parliament has the power, under Art. 368, to amend any provision of the Constitution, including the fundamental rights enshrined in Part III of the Constitution. However, the Court held that the Parliament’s amending power is subject to the basic structure of the Constitution. The concept of basic structure of the Constitution is nowhere found in the Constitution. It is a judicial innovation and was given its shape by the Supreme Court in the Kesavananda Bharati V. State of Kerala case (1973). The Court held that if an amendment Act passed by the Parliament, destroys the basic structure of the Constitution, then to the extent of its destruction the Act would be void. However, the Court failed to define in precise terms what is the basic structure of the Constitution. It only defined it by way of examples. According to the Court, the following concepts are some of the basic structures of the Constitution. Supremacy of the Constitution, Republican and Democratic form of Government, Secular Character of the Constitution, Federalism, Separation of powers between the Legislature, the Executive and the Judiciary, the mandate to build a Welfare State, Sovereignty of the country, Parliamentary form of Government, Fair and Free Elections, Power of Judicial Review etc.

To sum up, the fundamental rights are also subject to the amending power of the Parliament, provided such an amendment does not destroy the basic structure of the Constitution.

Right of Equality
14	Equality before Law.
15	Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
16	Equality of opportunity in matters of public employment.
17	Abolition of Untouchability.
18	Abolition of Titles.

Classification of fundamental rights

The Constitution itself classifies the Fundamental Rights under six groups. These are:

(1)    Right to Equality (Arts.14-18)

(2)    Right to Freedom (Art.19-22).

(3)    Right against Exploitation (Art.23-24)

(4)    Right toFreedom of Religion (Arts, 25-28)

(5)    Cultural and Educational Right (Arts.29-30)

(6)    Right to Constitutional Remedies (Arts.32-35)

Right to equality

Equality before the Law and Equal Protection of Laws (Art.14)

Art.14 guarantees to all persons equality before the law or the equal protection of the laws within the territory of India. The first expression equality before the law means that no man is above the law of the land and every jurisdiction of the courts. The exceptions are:

(1)    The president or the governor of a state shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

(2)   No criminal proceeding whatsoever shall be instituted or continued against the president or a governor in any court during his term of office.

(3)    No civil proceeding in which relief claimed against the president or the governor of a state shall be instituted during his term of office in any court until the expiration of two months after a notice is served on him on the other hand the expression equal protection of the laws means that among equals the law, the law be equals and equally administered and like should be treated alike Art14 thus dies not require that the same rules of law should be applicable to all persons within the territory of India or that the same remedies should be made available to them  irrespective of differences of circumstances, If only means  that all persons similarly placed shall be treated alike both in privileges conferred and liabilities imposed. In only other words Art.14 ensures quality among equals, its aim is to protect persons similarly placed against discriminatory treatment.Art.14, therefore does not forbid classification (of people.) However in order to be valid classification must not be arbitrary but must be rational thus the Legislature may (i) exempt certain classes of property from taxation such as charities libraries, Act (ii) impose different specific taxes upon different trades and professions. (iii) Taxes income and property of individuals in different manner etc.

Exceptions to Right to Equality

• President/Governor enjoys immunity from all criminal/civil offences (not subjected to any law) either of official or personal in nature during term of office.
• Different taxation classification for different persons as per there earnings.
• Different laws for military personnel
• Article 31-C is an exception to Article 14. Supreme Court has held that ‘where Art 31C comes in Art 14 goes out’. Art 31 C provides that for implementing the DPSP contained in clause (b) and (c) of Article 39 cannot be challenged on the ground that they are violative of Art. 14
• The foreign sovereigns (rulers) ambassadors and diplomats enjoy immunity from criminal and civil proceedings
• The UNO and its agencies enjoy the diplomatic immunity

Right against Discrimination (Art.15)

Art.15 Directs that the state shall not discriminate against a citizen on grounds only of religion race, caste, sex or place of birth or any of them. The second clause prohibits citizens themselves as well as the state from taking such discrimination with regard to access to shops hotels etc. ... and all places of public entertainment public resort wells tanks roads etc. the first clause of Art 15, mentions the prohibited grounds in any matter which is within the control of the state. The first clause of Art15 mentions the prohibited grounds in any matter, which is within the control of the state. The second clause prohibits both the state and private individual who are in control of the public place mentioned in that clause; the third clause gives power to the state to specially protect women and children. The fourth clause has been added to Art19 in order to given special protection to backward classes or scheduled castes and scheduled Tribes.

The word only used in the Article indicates that the discrimination cannot be merely on the ground that one belongs to a particular caste, sex, etc. In other words if other qualifications are equal caste religion sex etc. should not be a ground for preference or disability. It follows from this that discrimination on ground other than religion race caste; sex or place of birth is not prohibited. It means that discrimination based on any of these grounds and also another grounds is not hit by Art.15 (1).

Indian Constitution contemplates affirmative action (not reverse discrimination) for the target groups mentioned in Articles 15(3) through (5), that is, women, children, Socially and Educationally Backward Classes (SEBCs or Other Backward Classes (OBCs)), SCs, and STs.

Indian law emphasizes formal equality as well as proportional equality, which upholds the State’s right to take affirmative action in favor of disadvantaged sections of society.72 The seeming derogations from the right to equality found in Articles 15(3) through (5) or 16(3) through (5) are not treated as an exception to the equality principle but instead as a facet of the principle of equality itself. Consequently, judicial scrutiny reaches beyond formal equality

and upholds executive and legislative attempts to achieve substantive equality or equality in fact.

Limits like the ceiling of 50 percent on total reservations are supposed to be premised on notions of reasonable limits

1.      Similarly, post-graduate courses are treated differently and are normally excluded from the reservation schemes

2.      The apex court also has invalidated personal laws conferring inferior status upon women both on the principle that it would be anathema to gender equality and also on the basis that such laws, derived from religious scriptures, must be consistent with the constitution or else rendered void.

3.      The courts have also excluded the ‘creamy layer among the OBCs while implementing the law. The creamy layer limit has been increased to 6 lakh from 4.5 lakh. Department of Personnel and Training of Government of India has raised income limit from 4.5 lakh to Rs 6 lakh per anum for determining the Creamy Layer amongst OBC with effect from 16th May 2013

4.      The creamy layer status of an individual is decided by his/ her parent’s income and not by his own income or the income/ status of spouse.

Equality of Opportunity (Art.16)

Art. 16 deals with equality of opportunity “in public employment “clauses (1) and (2) of Art.16 guarantee Equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the state. No citizen can be discriminated against or be ineligible for any employment of office under the state on grounds only of religion race caste sex descent place of birth or residence. In Art 16 clauses 3, 4 and 5 are the three exceptions this general rule of equality of opportunity.

Art. 16 guarantee is equality of opportunity in matter of appointment instate services. It did not prevent the state from prescribing the necessary qualification and selective tests for recruitment for government services.

The qualification prescribed may be mental excellence physical fitness sense of discipline moral integrity loyalty to the state etc. Where the appointment requires technical knowledge technical qualifications may be prescribed. Character and antecedents of candidates may be taken into consideration for appointment in government service.

Art. 16(3) is an exception to clause (2) of this Article, which forbids discrimination on the ground of residence. However there may be good reasons for reserving certain posts in a state for the residents only. This Article empowers parliament to regulate by law the extent to which or would be permissible for a state to depart from the above principle.

Art. 16 (4) is the second exception to the general rule embodied in Art, 16 (1) and (2) It empowers the state to make special provision for the reservation on of appointments or posts in favour of any backward class of citizens which in the opinion of the state are not adequately represented in the service under the state. Thus Art. 16 (4) applies only if two conditions are satisfied (1) the class of citizen is backward i.e. socially and educationally and (2) the said class is not adequately represented in the services of the state. The second test cannot be the sole criterion. Art.16 (5) is the third exception to the general rule laid down in Art, 16 (1) and (2) which forbids discrimination in public employment on the ground of religion. Art. 16(5) says that a law which provides that a person holding an office in connection with the affairs of a religious or denominational institution etc., shall be a person professing the same religion or belonging to a particular denomination shall not be treated to be repugnant to this Article.

Article 16 (4a) (Eighty Fifth Amendment)

Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or class of post in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.

Article 16 (4b) (Eighty-First Amendment)

Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.

Abolition of Untouchability Art 17

Abolishes “Untouchability” and forbids its practice in any form. The enforcement of any disability arising out of untouchability is to be an offense punishable in accordance with law. It does not stop with a mere declaration out announces that this forbidden “Untouchability” is not to be henceforth practiced in any form. If it is so practiced it shall be dealt with as an offense punishable in accordance with the law.

In exercise of the powers conferred by Art. 35, Parliament has enacted the Untouchability (Offense) Act, 1955. This Act prescribes punishment for the practice of untouchability. This Act has been amended by the Untouchability (Offenses) Amendment Act, 1976, in order to make the laws more stringent to remove untouchability from the society. Further the name of the Original Act has been changed to Civil Rights, (Protection) Act 1976.

It should be noted that Art. 15(2) also helps in the eradication of untouchability. Thus on the grounds of untouchability no person can be denied access to shops public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, road and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of general public.

The Constitution, nowhere, defines what is untouchability, nor the Acts passed by the Parliament. But the judiciary has, however, held that it clearly means any social practice among the Hindus, which looks down upon a certain class of people on account of their birth and makes discrimination against them on this ground.

Abolition of Titles (Art 18)

Art18 prohibits the State to confer titles on anybody whether a citizen or a non-citizen. Military and academic distinctions are, however, exempted.

Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Shri and other State awards are not regarded as titles in terms of Art. 18(1) of the Constitution.

Clause (2) prohibits a citizen of India from accepting any title from a foreign State. Clause (3) provides that a foreigner holding any office of profit or trust under the State cannot accept any title from any foreign State without the consent of the President. This is to ensure loyalty to the Government he serves for the time being and to shut out all foreign influence in Government affairs, or administration. Clause (4) provides that no person holding any office of profit or trust under the State is to accept without the consent of the President any present, emoluments or office of any kind from or under any foreign State.

It is to be noted that there is no penalty prescribed for infringement of the above prohibition. Art. 18 is merely directory. It is, however, open to Parliament to make a law for dealing with such person who accepts a title in violation of the prohibition prescribed in Art. 18.

Right to freedom

Right to Freedom (Art 19)

Right to six Democratic Freedoms (Art. 19). Art. 19 of the Constitution guarantees to the citizens of India the following six fundamental freedoms: -

(a)    Freedom of Speech and Expression

(b)    Freedom of Assembly

(c)    Freedom to form Association

(d)   Freedom of Movement

(e)   Freedom of Residence and Settlement

(f)    Omitted by 44th Amendment Act, 1978

(g) Freedom of Profession, Occupation, Trade or Business

The freedoms enumerated in Art. 19(1) are those great and basic rights which are recognized as the natural rights inherent in the status of a citizen. But none of these freedoms is absolute or uncontrolled and each is liable to be curtailed by laws made or to be made by the State putting reasonable restrictions in the interests of the general public security of the State, sovereignty and integrity of India, public order, decency, morality, friendly relations with foreign states, protection of interest of any scheduled tribes, etc. A law restricting the exercise of any of the six freedoms guaranteed by clause (1) of Art. 19 to be constitutionally valid must satisfy two conditions namely:

(i)      The restriction must be for the particular purpose mentioned in the Constitution permitting the imposition of the Restriction on the particular right, and

(ii)     The restriction must be a reasonable restriction.

Freedom of Speech and Expression (Art. 19(1) (A))

Right of freedom
19	Freedom of Speech.
20	Protection in respect of conviction for offences.
21	Protection of life and personal liberty.
22	Protection against improper arrest and detention.

Freedom of Speech and Expression is indispensable in a democracy. It means the right to express one’s own conviction and opinion freely by words of mouth, writing, printing, pictures or any other mode. It includes the expression of one’s ideas through any communicable medium or visible representation such as gestures, banners, signs and the like. It further includes the liberty to propagate not only one’s own views, but also right to propagate or publish the views of other people. The freedom of speech and expression thus includes the freedom of the press as well. The Constitution nowhere mentions in explicit term the freedom of the press. But, it is implicit in the freedom of speed and expression. The freedom of the press is considered essential to political liberty and proper functioning of democracy. There are no geographical limitation, as the Supreme Court has observed, to freedom of speech and expression guaranteed under Art. 19(1) and this freedom is exercisable not only in India but also outside India and if State action sets up barrier to its citizens on the exercise of this freedom in any country in the world, it would violate the freedom of speech and expression.

Freedom of Assembly - (Art. 19(1) (B))

Guarantees to all citizens of India right to assemble peacefully and without arms. This right is, however, subject to the following restrictions:

(i)   The assembly must be peaceable.

(ii)  It must be unarmed.

(iii) Reasonable restrictions can be imposed.

The right of assembly is implied in the very idea of democratic Government. The right of assembly thus includes right to hold meetings and to take out processions. This right, like other individual rights, is not absolute but relative. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Art. 19(1) (b) and reasonable restrictions may be imposed under clause (3) of Art. 19.

Reasonable restrictions

Art 19(2) says that in the interests of public order, security of state, morality etc, reasonable restrictions may be imposed on the six freedoms mentioned in Art. 19(1). However, reasonableness should be qualified with the following:

the authority that imposes restrictions is responsible for showing that they are reasonable and restrictions, to be reasonable, should satisfy the “test of proportionality” that is the restriction should not be excessive.

The Supreme Court has held that a reasonable restriction is one which is not in excess of the requirements of the case. This test involves a drawing of balance between the interest of the citizen and the demands of national security and public order.

Freedom to Form Association - Art. 19(1) (C)

Art. 19(1) (c) guarantees to all citizens’ freedom to form associations. Like other freedoms, this freedom is not absolute. Art. 19(4) permit the State to impose reasonable restrictions “in the interest of the sovereignty and integrity of India or public order or morality. The right guaranteed under Art. 19(1)(c) is not merely to form association but also to continue with the association as such. The freedom to form association implies also the freedom to form or not to form, to join or not to join an association or union. But it should be noted that freedom to form association does not confer a fundamental right to strike.

Right of Association and Armed Forces

The Constitution empowers the Parliament, under Art. 33 to modify the rights conferred by Part III of the Constitution in their application to members of the Armed Forces or other forces engaged with the maintenance of public order. Exercising this power, the Parliament has banned the formation of trade unions to the members of the Armed Forces, Police etc. This ban, according to the Supreme Court can be made applicable even to civilians who are working in such establishments.

Freedom of Movement - Art. 19(1) (D)

Art. 19(1) (d) guarantees to citizens the right to move freely throughout the territory of India. The right to move means the right of locomotion and the expression “freely”, connotes that the freedom to move is to move wherever one likes and however one likes, subject to reasonable restrictions imposed by the State on grounds of interests of the general public or for the protection of the interests of the Scheduled Tribes.

Freedom of Residence - Art. 19(1) (E)

The right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India arise out of basic concept of unity and integrity of India. India is one integrated country and its citizens have the freedom to move throughout the territory of India and to reside and settle anywhere, in India. Broadly speaking these two rights are part of the same right. Freedom of movement is not merely freedom of locomotion but also freedom to change one’s residence. Freedom of residence is subject to reasonable restrictions in the interests of general public or for the protection of any Scheduled Tribe.

Freedom of Trade and Occupation - Art. 19(1) (G)

Art. 19(1) (g) of the Constitution guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. The freedom is not uncontrolled, for clause (6) of the Article authorities legislation, which (i) imposes reasonable restrictions on this right in the interests of the general public; (ii) prescribe professional or technical qualifications necessary for carrying on any profession, trade or business to the exclusion of private citizens, wholly or partially. The right to carry on a business would include the right to close down or relinquish or sell the business. 

Protection In Respect Of Conviction for Offenses Art. 20

Art. 20 guarantees to individuals - citizens and non-citizens protection against conviction for Offenses prohibiting (i) retrospective criminal legislation (ii) double jeopardy or punishment for the same offense more than once, and (iii) compulsion to give self-incriminating evidence.