Fundamental Rights
England – Individual Rights
USA – Fundamental Rights – Bill of Rights
India – Fundamental Rights
History of the demand for Fundamental Rights
1) Government of India Act, 1935
Simon Commission
Joint parliamentary Committee
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- Rejected Fundamental Rights
2) Nehru Report
In favour of Fundamental Rights
3) Makers of Constitution
Adopted Rejected Fundamental Rights
and Directive Principles
Taken from USA – but a compromise
between Parliamentary Sovereignty
and Judicial Supremacy
Article 13 – Courts have Power to declare Void laws
contravening Fundamental Rights
Therefore followed American model, but Indian Legislature
stronger than Judiciary:
a) Power to impose reasonable restriction
b) Power to amend constitution
Eg. Right to Property – Janata Government
c) Exceptions – Article 31A, B, C, D – Enactments under the
said Articles cannot be struck down as violative of
Fundamental Rights
d) Fundamental Duties under Article 51A – Curtailing Effect
e) List of Fundamental Rights under Part III exhaustive
Other Rights also available under Constitution but no
Writ Jurisdiction
Eg. Article 265 – ‘No tax shall be levied or collected except
by
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Authority of Law’
Concept of ‘Fundamental’
Immune to all constitutional amendment
Article 368 – All parts of constitution can be amended
SC -> Golak Nath Case – ‘Fundamental Rights’ cannot
be amended under Article
368
Article 368 itself amended
Kesavananda Bharati’s Case – Judge Bench
– Parliament can amend
Fundamental Rights
42nd Amendment - Fundamental Rights can be amended
and referendum
Article 14 – Equality before law and Equal Protection of Laws
A. Equality before law
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Negative Concept – Implies absence of special
privileges
Taken from Second Corollary from Dicey’s Concept of
the Rule of Law, that is, No man is above Law
Exceptions
1) Governor and President
i) Not answerable to any Court of Law
ii) No Criminal Proceedings
iii) No Civil Proceedings – not applicable to
impeachment and other appropriate
proceedings against Government
B. Equal Protection of Laws
Equal treatment in similar circumstances
Providing for ‘Classification’ by State
1) Based on Intelligible differentia
Therefore classification can be based on:
i) Geographical differentia
ii) Time
iii) Nature of trade, calling or occupation
Eg. Taxation
i) Exemption from taxation – Charities, libraries
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ii) Different taxes for different trades
iii) Real tax and Property tax
Applies to Substantive and Procedural Law
Hits at arbitrariness of State Action in any form
Article 14 – General Equality
Articles 15 and 16 – Specific Equality
Article 15 - Prohibition of discrimination on grounds of
Religion, Race, Caste, Sex or Place of Birth
In access to public places and facilities but does
not prevent state from:
i) From making special provision for children
ii) And for backward classes – Schedule Castes
and Schedule Tribes
Article 16 - Equality of opportunity in matters of public
employment
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No person can be excluded from state service
exceptions:
Reservation can be made for:
i) Backward class of citizens
ii) Religious or denominated institution officers
iii) Schedule Castes and Schedule Tribes (Article
335)
Article 17 - Abolition of Untouchability
Punishable
Untouchability (offences) Act 1955
Protection of Civil Rights Act, 1955
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No definition of Untouchability
i) Refusal of admission to public institutions
ii) Prevention of worship in public places
iii) Subjecting person to disability
Act in 1976
i) Insulting member of Supreme Court
ii) Justifying untouchability
Penalty
i) 1 to 2 years imprisonment
ii) Cannot stand for election
Article 18 - Abolition of Titles
To eradicate imperialistic tendencies exceptions:
i) Ban operates only against state
ii) State not debarred from awarding military or
academic distinctions
iii) State can award distinctions
Eg. Bharat Ratna, Padma Vibhusha, Padma
Bhushan, Padma Sri
Criticism
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Articles 17 and 18 – Social Justice
Article 19 – The Six Freedoms
1. Freedom of Speech and Expression
2. To assemble Peaceably and Without Arms
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3. To form Associations or Unions
4. To move freely throughout the territory of India
India
5. To reside and settle in any part of the Territory
of India
6. ---
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7. To practise any profession, or to carry on any
occupation, trade or business
Constitution attempts to strike balance between
individual liberty and social control by imposing
restrictions:
Eg:
i) Defamation
ii) Contempt of Court
iii) Decency or Morality
iv) Security of State
v) Friendly relations with Foreign States
vi) Incitement to an Offence
vii) Public Order
viii) Maintenance of the Sovereignty and Integrity
of India
Restrictions to be Reasonable
Tests
i) Object of Legislations to be served
(substantial)
ii) Not to violate Natural Justice (procedural)
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Article 20 – Protection in respect of conviction of
Offences
a) Prohibition of retrospective Criminal Legislation
b) Double Jeopardy
c) Compulsion to give self-incriminating evidence
Article 21 – Protection of Life and Personal Liberty
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No person to be deprived of his life or liberty
except according to procedure established by Law
But there cannot be absolute freedom
Safeguards individual against arbitrary or illegal
action on the part of Executive
Article 22 – Protection against Arbitrary Arrest and
Detention
“is it because I used to be black?”
1) On arrest to be informed of grounds of arrest
2) Right to consult and be assisted by advocate
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3) To be produced before magistrate within 24 hours
Not available
a) Enemy/alien
b) Preventive Detention
Conditions applicable to Preventive Detention
i) 3 months / Report to Advisory Board
ii) To know grounds of detention
iii) Earliest opportunity of Making Representation
To Protect
i) Security of State
ii) Maintenance of Public Order
iii) Maintenance of supplies and services essential
to State
Article 23 – Right against Exploitation
a) Prohibition or Traffic in Human Beings and Forced
Labour
b) But does not prevent State from imposing
compulsory recruitment or Conscription for public
purposes such as military or social service
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Article 24 – Prohibition of Employment of Child (Below
14) in Factories, etc.
Articles 25, 26, 27, 28 – Freedom of Conscience and Free
Profession, Practise and Propagation of Religion
In tune with Declaration of India as Secular State
No state religion
No taxes for religious institutions
No religious instruction in educational institutions
wholly supported by state fund
Right to propagate religion
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Article 29 – State not to impose any culture other than a
community’s cultures
Article 30 – Communities have right to establish and
administer educational institutions
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