Fundamental Rights

 

 

 FUNDAMENTAL RIGHT 

*It is in Part 3 of Indian constitution 

*Described as Magna carta of India 

*Articles 12-35 

*Promoting ideal of political democracy 

*Protect liberties and freedom of people against invasion of state 

*Some of them available only to citizen of India 

*Not absolute but qualified ie) State can impose reasonable restrictions 

*All of them available against arbitrary action of state some of them against action of private individuals 

*Some of them negative in character 

*They are justiciable ie) they can go to court if Fundamental Rights are restricted 

*They are not sacrosanct or permanent ie)Parliment can curtail or repeal by Constitutional amendment act and not by ordinary act  

*They can be suspended during National Emergency except article 20 and 21 

*Article 19 can be suspended only when emergency is declared on ground of war or external aggression  

*Article 12 -Definition of states (Union Government,State Government,Local Government,Public sector ,etc) 

*Article 13-Inconsistent laws are void (doctrine of Judicial Review) 

RIGHT TO EQUALITY 

*Article 14-18 

*Article 14 -Equality before law and equal protection of law 

*Equality before law is British origin and negative concept and it propounded by A V Dicey 

*Equal Protection of law is from America and it is positive concept 

*Exception to Equality -President,MPs,MLAs,Foreign Diplomats 

*Article 15-Prohibition of Discrimination on Religion ,race,caste,sex 

*Exception-Reservation policy in education 

*Article 16-Equal opportunity in Employment 

*Exception-Reservation policy in job ex)103rd CAA 2019 EWS quota 10% reservation 

*Article 17-Abolition of untouchability 

*untouchability not defined in constitution and also in act , Supreme Court said this is available against private individuals 

*Article 18-Abolition of Titles 

*Exception-Military ,Education,National awards ie)Bharat Ratna,Padma Vibushan,Padma Bhusan,Padma Shri 

RIGHT TO FREEDOM 

*Article 19-22 

*Article 19- Guarantees six rights 

1)Right to freedom of speech and expression,2)Right to assemble peacefully 3)Right to form Associations,unions , cooperative societies,4)Right to move freely in india,5)Right to settle in any part of india ,6)Right to practice any profession 

*Before Repealing Article 370(Special category state to Jammu and Kashmir ) till October 2019 -Citizens who do not belong to Jammu and kashmir cannot purchase properties from Jammu and kashmir and cannot marry Jammu and kashmir people 

*Right to Property is repealed in fundamental Rights and it is ordinary rights now 44 th Amendment act 1978 

*State can impose reasonable restrictions ex)Section 144 ,covid lockdown etc 

*Article 20-Protection in respect of conviction for offences 

*No ex post-facto law ,No double Jeopardy,No self Incrimination 

*Exception -But they should compulsion to give thumb impression,specimen signature,blood specimen, compulsory exhibition of body 

*Article 21-Protection of life and personal liberty 

*Right to live with human dignity,Right to decent environment,Right to livelihood,Right to privacy,Right to shelter,Right to health,Right to free legal aid,Right to speedy trial,Right against handcuffing,Right against inhuman treatment,Right to travel abroad,Right against bonded labour,Right to medical aid,Right of women to be treated with dignity,Right to hearing,Right to Information,Right to sleep,Right to electricity,Right to social security ,Right to social-economic justice and empowerment 

*Article 21 A -Right to education 

*Free and compulsory education to all children ages between 6-14 ,added by 86 th CAA 2002,Also included in Directive Principles of State Policy Article 45, Fundamental Duty Article 51A 

*Article 22-Protection against arrest and detention , Parliment and State concurrently make laws on preventive detention 

*Both kind of detention-punitive ,preventive -Right to consult  advocate,Right to produced before Magistrate within 24 hours of arrest,But these are not available to enemy aliens or under preventive detention 

*Safeguard against preventive detention-If detention is more than 3 months the matter must be reffered to Advisory board in which there should be a high Court judge ,they will convey whether detention can be continue or not 

*GOONDAS,POTA,MISA,NSA are some preventive detention 

RIGHT AGAINST EXPLOITATION 

*Article 23-Prohibition of trafficking in human being (forced labour is prohibited) 

*Article 24 -Prohibition of Employment of Children in factories,Children below age of 14 years is prohibited in hazardous activity 

RIGHT TO FREEDOM OF RELIGION 

*Article 25-Freedom of conscience,practice and propagation of religion but not include to convert another person to one's own religion 

*Article 26-Freedom to manage religious Affairs 

*Article 27-Freedom from taxation for promotion of a Religion 

*Article 28-Freedom from attending Religious instructions 

CULTURAL AND EDUCATIONAL RIGHTS 

*Article 29-Protection of interest of minorities 

*Article 30-Right of minorities to establish and administer educational institution 

RIGHT TO PROPERTY AND CERTAIN LAWS 

*Article 31-Abolition of right to Property 44 th CAA 1978 19(1)(F) and shifted to Article 300-A 

*Article 31A-State can acquire land,estates, properties etc for example for constructing Railway lines, Highway Roads 

*Article 31B-Validation of certain acts ,Schedule IX 

*Article 31 C-Saving of laws effect to Directive Principles of State Policy 

RIGHTS TO CONSTITUTIONAL REMEDIES 

*Article 32 is Basic features of constitution 

*Parliment can empower any other courts to issue directions,orders and writs 

*President can suspend of Fundamental Rights during National Emergency Article 359 

*Supreme court can issue under article 32 only Fundamental Rights not other Rights but High Court can also issue writs on other Rights Article 226 

*Supreme court-Narrow writ ;High court-Wider writ 

*Supreme court can issue writs all over india while high Court issue writs only in that jurisdiction 

*Supreme court can not refuse to exercise writ jurisdiction but High Court may refuse 

HABEAS CORPUS 

*Means to have body of 

*To produce the body before it 

*Issued against public authority as well as private individuals

*Not issued against lawful bodies and contempt of court 

MANDAMUS 

*Means we command 

*Command issued by court to public officials asking him to perform his duties which they failed to perform or refused to perform 

*Can be issued against public body, corporation, inferior court,tribunal 

*Can not be issue against private body,president 

PROHIBITION 

*Means to hold 

*Preventive 

*Issued by higher court to lower court or tribunal 

*Issued only against judicial and quasi judicial activities ie)stay order 

CERTIORARI 

*Means to be certified 

*For both preventive and curative 

*Can be issued against Judicial,Quasi Judicial and administrative bodies 

*Can not issue against legislative bodies and private individual and bodies 

QUO-WARRANTO 

*Means by what authority or warrant 

*Issued by court to enquire into legality of claim of a person to public office 

*Issued against public office created by statute of by constitution 

*Cannot issue against private office and ministerial office 

OTHER ARTICLES IN FUNDAMENTAL RIGHT 

*Article 33-Restriction of Fundamental Rights for uniformed personnels by Parliment 

*Article 35-Vest only in parliament and not in state legislature 

CRITICISM OF FUNDAMENTAL RIGHTS 

*Excessive Limitations

*No social and economic rights 

*No permanency 

*No clarity 

*Suspension during emergency period 

*Expensive remedy 

*Preventive Detention