04/11/23 RN PESIT 1

THE CONSTITUTION OF INDIA and

PROFESSIONAL ETHICS

CIP 81

Fundamental Rights

Class # 02 Week :Feb 04-09

04/11/23 RN PESIT 2

Rights

• Moral Rights: Morality, Lacks enforcementNeighbor’s Hunger

• Legal Rights: conferred by Statutes.

IPR, Law of contracts• Fundamental Rights:

– Extraordinary Legal Rights. – Given & Protected by the Constitution– Fundamental Law of the Land.– Superior to ordinary law & binding on public

authorities – Justiceable, Protected by Highest courts

04/11/23 RN PESIT 3

Fundamental Rights

• Part III consists of Articles 12 - 35 on Fundamental Rights.

1. Articles 14 - 18 on Right to Equality, 2. Articles 19 - 22 on Right to Freedom, 3. Articles 23 - 24 on Right against Exploitation, 4. Articles 25 - 28 on Right to Freedom of Religion, 5. Articles 29 - 31 on Cultural and Educational Rights, 6. Articles 32 - 35 on Right to Constitutional Remedies

Part III, IV, & IVa --- Conscience of the Constitution

04/11/23 RN PESIT 4

Salient Features of Fundamental Rights• Integral Part of the Constitution

- cannot be taken away by ordinary legislation.

- Any law passed by legislature violating this will be ‘Null & Void’

• Both positive and negative rights.- Confer certain privileges on the people viz

Article 17,18,19 ----------Positive rights- Impose certain restrictions on the State

without conferring special privileges on the citizens viz Articles 13(2), 14, 15(1) &16(1).

• Justciable Rights- All rights under Part III- Supreme Court under Art.32 & HC Under

Art226

04/11/23 RN PESIT 5

Salient Features of Fundamental Rights• Reasonable Restrictions

– Not absolute rights – Restricted or limited either by State or by

Constitution itself in the larger interest of society or situations.

– Article 19 guarantees freedom of speech and expression. This right is restrictive in the interest of safety and security of the nation, public morality, and friendly relations with other nations.(Raj Thackeray arrested released on conditional bail. Can not talk with media, can not be in the company of >5 persons, Can not hold rally)

04/11/23 RN PESIT 6

Salient Features of Fundamental Rights• Suspension of Rights

– Art 359. President during emergency can suspend all Fundamental Rights Xpt Article 20&21

– Suspension can also include Article 32• Special Rights to citizens

– Citizens only All citizens…..– Citizen and non citizens No person….

• Amendments of Fundamental Rights– Can be amended but restricted not to affect the

basic structure of the Constitution

04/11/23 RN PESIT 7

Right to Constitutional Remedies Art 32-35.

• Article 32: Remedies for enforcements of Rights conferred by this part:

1) The right to move the supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto, and certiorary whichever may be appropriate, for the enforcement of any of the rights coferred by this Part.

04/11/23 RN PESIT 8

3) Without prejudice to the powers, conferred on the Supreme Court

by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

3) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Right to Constitutional Remedies.

04/11/23 RN PESIT 9

Article 32 : considered ‘Watch dog of the constitution’

“ Soul of the Constitution” by Dr BR Ambedkar

• Gives a remedy to any violation of Fundamental Rights.

• Supreme Court is free to use any procedure and all the powers to enforce FRs

Right to Constitutional Remedies.

04/11/23 RN PESIT 10

Locus Standi ( Who can apply)/right to be heard in court• Person whose FR has been violated • In habeas corpus petition, not only the person

detained but also any other person other than a stranger can seek the benefit of Article 32.

• In a PIL ‘Public Interest Litigation’ any interested person can seek the benefit of Article 32.

Writs against whom ?• General rule: writs are enforceable only against a

State• Articles 17,21,23, & 24 are also enforceable against

private persons• 17-Abolition of untouchability: 21-Protection of Life and

Personal Liberty. 23-Prohibition of trafic in human beings and 24-forced labour.

Right to Constitutional Remedies.

04/11/23 RN PESIT 11

Locus Standi ( Who can apply)/right to be heard in court

• Person whose FR has been violated • In habeas corpus petition, not only the person detained

but also any other person other than a stranger

can seek the benefit of Article 32.• In a PIL ‘Public Interest Litigation’ any interested person

can seek the benefit of Article 32.

Right to Constitutional Remedies.

04/11/23 RN PESIT 12

Writs under Article 32habeas corpus: ‘to have a body’

Produce the detained person before the court.

to set at Liberty,

a person confined without Legal justification.

Against a ‘State’, private individual or organisation,

Mandamus: HC or SC

Commands a person or a body to do that work (which is his or its), duty to do (obligated by law).

Certiorary: writ in the form of order

Removes a suit from inferior court to superior court May be used before trial to prevent an excess or abuse of jurisdiction

04/11/23 RN PESIT 13

Writs under Article 32

Prohibition: writ issued by

SC or HC to a subordinate court

forbidding it to continue the proceedings, if it has over crossed its jurisdiction.

in violations of principles of natural justice or in contravention the law of the land.

quo-warranto:

against a person who occupies a Public office,

Enquires in to the legality of the claim for occupying that post.

04/11/23 RN PESIT 14

Definition of a State

•Article 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 authoritieswithin the territory of India or

under the control of Government of India.

04/11/23 RN PESIT 15

Definition of a State

(President, PM, Council of Ministers, all govt departments)

( Governor, CM, ministers, dist. Collectors, all govt. depts)

(village panchayaths, municipalities etc.)

Other Authorities:

(i) must be within territory of India,

(ii) It must be created by statute of centre or state, or legislature and must be under the control of GOI )

04/11/23 RN PESIT 16

Doctrine of Severability, Doctrine of Eclipse

• Article 13: Laws inconsistent with or in derogation of the fundamental rights

All laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistent with the provisions of this part, shall to the extant of such inconsistency be Void.

13(1) is directed towards laws which were in force before the commencement of the constitution.

04/11/23 RN PESIT 17

Doctrine of Severability,

• Article 13: Laws inconsistent with or in derogation of the fundamental rights

Ultra Vires: (Latin) = ‘beyond the powers’

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

13(2) applies to post-constitutional laws

04/11/23 RN PESIT 18

Void ab initio

• Post-constitutional law which violates a fundamental right is void ab initio.

• Effect of Emergency under Art 352:

Operation of Art 19 (the 6 freedoms ) gets

Suspended as provided in Act 358.

This proclamation can not be applied with Retrospective effect. It can not operate to validate a law, enacted prior to the Proclamation which was invalid owing to the contravention of Art.13(2). The law would be ‘Void ab initio’. It can not be validated by subsequent Proclamation.

Both legislative and Executive actions

04/11/23 RN PESIT 19

Article 13:

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 by a Legislature or other competent authority in the territory of India before the commencement of the 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.

04/11/23 RN PESIT 20

Article 13:

– [Nothing in this article shall apply to any amendment of this Constitution made under Article 368]

inserted by the Constitution

(24th Amendment Act, 1971,sec2

Right to Equality, • Article 14: Equality before law.• Article 15: Prohibition of Discrimination.• Article 16: Equality of opportunity in matters of

Public Employment• Article 17: Abolition of Untouchability• Article 18: Abolition of Titles

04/11/23 RN PESIT 21

Right to Equality,

• Article 14: Equality before law.

– The State shall not deny to any person

Equality before law or the equal protection of the laws within the territory of India.

– All are equal before law whatever their rank or status in the society.

– All are subject to the ordinary law of the land

• DICEY’S Rule of Law

– Every person, Whatever his Rank or Position is subject to ordinary courts.

– No man is above Law

04/11/23 RN PESIT 22

Right to Equality,

• Exceptions :– 1) President, Governors– they shall not be

answerable to any court for the exercise and performance of the powers and duties of their office.

– 2) No criminal proceeding shall be instituted or continued against the President or Governors during their term of office.

04/11/23 RN PESIT 23

Right to Equality,

• Exceptions :– 3) Powers of citizens & public officials are

not same. But the Rule of Law requires that these powers are defined.

– 4) Armed Forces/Military laws, Advocates/Bar council, Medical Practitioners/Medical council for India.

– 5) Foreign services & Ambassadors immune from any judicial process/International law

04/11/23 RN PESIT 24

Right to Equality,

• Equal Protection of Laws:

Positive Concept• Law administered Equally among equals.• Unequal persons to treated unequally• Taxes for different products/class of people• Legislature has powers to make reasonable

classification---must not be “arbitrary, artificial or evasive”

• Just and reasonable.

04/11/23 RN PESIT 25

Right to Equality,

• Article 15: Prohibition of discrimination on grounds of religion, race, caste, gender or place of birth.

• (1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, gender or place of birth or any of them.

• (2) No citizen shall on grounds only of religion, race, caste, gender or place of birth or any of them be subject to any disability, liability, restriction or condition with regard to .

(a) access to shops, public restaurants, hotels and places of public entertainment or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public.

04/11/23 RN PESIT 26

Principle of Natural Justice is an ingredient of Art.14

• Audi Alteram partem ( Hear the other party)Nemo judex in causa sua (No one can be

judge in his own cause)Quasi-judicial enquiries must be held in good faith without bias and not arbitrarily or unreasonably.Maneka Gandhi v. Union of India- Soul of Natural justice

is fairplay in action

04/11/23 RN PESIT 27

Cases where Principle of Natural Justice –held Applicable• Whether a student used unfair means in an examination• Result cancellation of the result of a student on the ground of

inadequate attendance.• Deciding the correct date of birth of an employee.• Dismissal of a Vice Chancellor.• Selection of an officer by a selection Committee.• Selection of candidates by a Public Service Commission.• Blackmailing of a contractor.• Impounding a passport.• Cancellation of a license.• Suspension of a Municipality.• Refusal of a license.• Cancellation of a lease.• Disciplenary action against a student or an employee.• Commission of enquiry making adverse comments against an

individual.

04/11/23 RN PESIT 28

Cases where Principle of Natural Justice –Not Applicable

• In framing delegated Legislation- Rules, Regulations etc. (Unless the parent Act so requires).

• Where an administrative action effects a large number of persons e.g. Bhopal Disaster case.

• Where prompt action is required.• Where National Security involved.• Where the case falls within 2nd proviso to Art.311(2)

[(a) not reasonably practicable to hold enquiry and (b) in the interest of the Security of State]

• Where the Principle of Natural Justice have been excluded by an express provision of an Act.

04/11/23 RN PESIT 29

Right to Equality,

• Article 15: Prohibition of discrimination on grounds of religion, race, caste, gender or place of birth.

• (3) Nothing in this article shall prevent the State from making any special provision for women and children.

• [(4) Nothing in this article or in clause(2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizen or for the Scheduled castes and Scheduled Tribes]

04/11/23 RN PESIT 30

Right to Equality,

• Nainsukh vs State of UP

“ the law providing for election to municipalities on the basis of separate electorates for members of different religious communities would violate article 15(1)

• Saral Mudgal V. Union of India

The personal laws are immune from being challenged under Fundamental Rights which do not touch upon these laws . Personal laws fall outside the scope of Fundamental Rights.

• State of Madras V. Champakam Dorairajan

“The govt. order Classifying the students solely on the basis Caste and Religion irrespective of their merit is invalid

04/11/23 RN PESIT 31

Right to Equality,

• Article 16:

Equality of opportunity in matters of Public Employment

• (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

• (2) No citizen shall on grounds only of religion, race, caste, gender descent or place of birth, residence or any of them, be ineligible for , or discriminated against in respect of, any employment or office under the State .

04/11/23 RN PESIT 32

Right to Equality,

• Article 16: Equality of opportunity in matters of Public Employment

• (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment.

04/11/23 RN PESIT 33

Right to Equality,

• (4) Nothing in this article shall prevent

the State

from making any provision

for the reservation of appointments or posts

in favor of any backward class of citizens

which, in the opinion of the State, is not adequately represented in the services under the State.

04/11/23 RN PESIT 34

Right to Equality,

• [(4A) Nothing in this article

shall prevent the State from

making any provisions for reservations

in matters of promotion

with consequential seniority,

to any class or classes of posts in services

under the State in favor of the SC’s and ST’s which in the opinion of the State are

not adequately represented in the services under the State.]

04/11/23 RN PESIT 35

Right to Equality,

• [(4B) 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 provisions 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.]

04/11/23 RN PESIT 36

Right to Equality,

• (5) Nothing in this article shall affect the operation of any law

which provides that the incumbent of an office in connection with the affaires of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

04/11/23 RN PESIT 37

Right to Equality,

• Article 17: Abolition of Untouchability

Practice of Untouchability in any form is forbidden

– The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law.

– Parliament has enacted the Untouchability (offences) Act 1955, now it is amended in 1976 & now it is named as Protection of Civil RightsAct,1955

04/11/23 RN PESIT 38

Article 18: Abolition of titles

18 (1) : No title, not being a military or academic distinction, shall be conferred by the State.

18(2): No citizen of India shall accept any title from any foreign State.

18(3): No person who is not a citizen of India shall while he holds any office of profit or trust

under the State, accept without consent of the President any title from any foreign State.

18(4): No person holding any office of profit or trust under the State shall without consent of the President accept any present, emolument, or office of any kind from or under any foreign State.

04/11/23 RN PESIT 39

Article 18: Abolition of titles

• 1954 Bharath Rathna,

Padma Vibhushan, Padma Bhushan, and

Padma shri awards

are mere decorations and not to be used as appendage to the awardee’s name.

• These awards are not violative of the Principles of equality

as guaranteed by Art. 14 and art. 18