Fundamental Rights

England – Individual Rights USA – Fundamental Rights – Bill of Rights India – Fundamental Rights

History of the demand for Fundamental Rights1) Government of India Act, 1935

Simon Commission Joint parliamentary Committee

- Rejected Fundamental Rights

2) Nehru Report In favour of Fundamental Rights

3) Makers of Constitution

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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 RightsTherefore followed American model, but Indian Legislature stronger than Judiciary:a) Power to impose reasonable restrictionb) Power to amend constitution

Eg. Right to Property – Janata Governmentc) 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 Effecte) List of Fundamental Rights under Part III exhaustive

Other Rights also available under Constitution but no Writ JurisdictionEg. Article 265 – ‘No tax shall be levied or collected except by

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 LawsA. 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

Exceptions1) Governor and President

i) Not answerable to any Court of Lawii) No Criminal Proceedingsiii) 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 differentiaTherefore classification can be based on:i) Geographical differentiaii) Timeiii) Nature of trade, calling or occupationEg. Taxationi) Exemption from taxation – Charities, librariesii) Different taxes for different tradesiii) Real tax and Property tax

Applies to Substantive and Procedural Law Hits at arbitrariness of State Action in any form Article 14 – General Equality

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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 childrenii) And for backward classes – Schedule Castes

and Schedule Tribes

Article 16 - Equality of opportunity in matters of public employment

No person can be excluded from state service exceptions:Reservation can be made for:i) Backward class of citizensii) Religious or denominated institution officersiii) Schedule Castes and Schedule Tribes (Article

335)

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Article 17 - Abolition of Untouchability

Punishable Untouchability (offences) Act 1955

Protection of Civil Rights Act, 1955 No definition of Untouchability

i) Refusal of admission to public institutionsii) Prevention of worship in public placesiii) Subjecting person to disability

Act in 1976i) Insulting member of Supreme Courtii) Justifying untouchability

Penaltyi) 1 to 2 years imprisonmentii) Cannot stand for election

Article 18 - Abolition of Titles

To eradicate imperialistic tendencies exceptions:i) Ban operates only against stateii) State not debarred from awarding military or

academic distinctionsiii) State can award distinctions

Eg. Bharat Ratna, Padma Vibhusha, Padma Bhushan, Padma Sri

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Criticism

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) Defamationii) Contempt of Courtiii) Decency or Moralityiv) Security of Statev) Friendly relations with Foreign Statesvi) Incitement to an Offencevii) Public Orderviii) Maintenance of the Sovereignty and Integrity

of India Restrictions to be Reasonable

Testsi) Object of Legislations to be served

(substantial)ii) Not to violate Natural Justice (procedural)

Article 20 – Protection in respect of conviction of Offences

a) Prohibition of retrospective Criminal Legislationb) Double Jeopardy

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c) Compulsion to give self-incriminating evidence

Article 21 – Protection of Life and Personal Liberty

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

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“is it because I used to be black?”

1) On arrest to be informed of grounds of arrest2) Right to consult and be assisted by advocate3) To be produced before magistrate within 24 hours

Not availablea) Enemy/alienb) Preventive Detention

Conditions applicable to Preventive Detentioni) 3 months / Report to Advisory Boardii) To know grounds of detentioniii) Earliest opportunity of Making Representation

To Protecti) Security of Stateii) Maintenance of Public Orderiii) Maintenance of supplies and services essential

to State

Article 23 – Right against Exploitation

a) Prohibition or Traffic in Human Beings and Forced Labour

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b) But does not prevent State from imposing compulsory recruitment or Conscription for public purposes such as military or social service

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

Article 29 – State not to impose any culture other than a community’s cultures

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Article 30 – Communities have right to establish and administer educational institutions

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