FUNDAMENTAL RIGHTS AND DUTIES

Position in England

Rights are Unwritten Judiciary is the Guardian of Basic Rights Omnipotent Parliament English Court has no power of Judicial

review over legislation

Position in United States

American Bill of Rights Exists. Establishment of Judicial Supremacy. Beyond the power to Senate to change

any Rights. Judiciary has the power to amend Rights.

Position in India

Nehru supported the Nationalist opinion in favor of Fundamental Rights (1929).

Simon commission and Joint Parliamentary committee had rejected the idea of Fundamental Rights (1935).

Established in part III of the constitution (1958).

Was modeled from US but judiciary power is weaker.

Position in India (Contd…)

Parliament has the power to amend. 44th Amendment act of 1978 abolished

the Right to Property. Legislature makes a law depriving the

person of his Right to Property, He cannot move to Supreme Court.

No Obligation on the part of the state to pay any compensation.

Position in India (Contd…)

Exceptions: When in State of Emergency Presidential Rule is imposed Non fulfillment of fundamental duties.

Classification of Fundamental Rights Constitution classifies Fundamental Rights

under 7 Groups*.i. Right against exploitationii. Right to freedom of Religioniii. Cultural and Educational Rightsiv. Right to equalityv. Right to Particular Freedomsvi. Right to Property*vii. Right to constitutional remedies

* Was Abolished in 1978, making Fundamental Rights as 6.

Fundamental Rights Contd… Classification based of Persons to Whom

they are available

Right Against Exploitation

Prohibition of Human trafficking and Forced Labor (Article 23 of the Constitution).

Prohibition of employment of Children under the age of 14 (Article 24).

Exception: While imposing compulsory service for

public purposes.

Rights to Freedom of Religion India is a Secular state (Neutral and

Impartial towards all religion). No State Religion in India. Provides religious freedom to all citizen of

India. Religion cannot be used for political

mileage.

Article 25: Freedom to profess, Practice and propagate his own religion. No forcible conversions are allowed.

Rights to Freedom of Religion Contd… Article 26: Freedom to manage religious

affairs Establish & maintain religious institutions. Manage its own affairs. Own and acquire movable and immovable

property.

Article 27: Freedom from paying tax for the promotion of any religion.

Rights to Freedom of Religion Contd… Article 28: Freedom to attend or abstain

from religious functions

No religious instructions can be imparted in a educational institution wholly funded by the government.

Must not be imposed on people of other religion without their consent.

Rights to Freedom of Religion Contd… Exceptions:

Public Order, Morality and Health Social Welfare and Reforms Socio economic, political or other secular

activity not appertaining to freedom of conscience.

Cultural And Educational Rights Article 29:: State cannot impose upon it

any other culture.

Article 30:: Minorities have right to establish and

administer educational institutions of its choice.

While granting aid, Govt cannot discriminate based on the grounds of minority ()

Cultural And Educational Rights Contd..

Exceptions: During Mal Administration Aided Institution offering professional

courses, Admissions can only happen via CET conducted by university or state.

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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

Right To Equality

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Exceptions : President, Governors– they shall not be

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

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

Foreign services & Ambassadors immune from any judicial process/International law.

Right To Equality Contd…

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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.

Right To Equality Contd…

Right to Equality Contd... Article 15 The state shall not discriminate

against any citizen on grounds only of religion, race, caste, gender or place of birth or any of them.(art 15)

No citizen shall be denied.(a) access to shops, public

restaurants, hotels and places of public entertainment or

(b) the use of wells, tanks, bathing ghats, roads etc..(art 15)

Article 15.. Exception

State can make special provisions for:Women and ChildrenSocially or educationally backward class

Scheduled Castes and Scheduled Tribes.

Article 16

Equality of opportunity in matters of Public Employment.

There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.(art 16)

Exceptions to art16

Residence within the state in case of particular posts(public employment act ,1957)

Reservation for sc/sc/obc Office connected with religious

institutions.

Practice of Untouchability in any form is forbidden

Untouchability shall be an offence punishable in accordance with law.

Parliament has enacted the Untouchability (offences) Act 1955, it was amended & renamed(1976) as Protection of Civil RightsAct,1955.

Article 17: Abolition of Untouchability

18 :Abolition of titles: No title, not being a military or academic distinction, shall be conferred by the State.

Exceptions:1)Ban only against the state, not

applicable for univ etc.2)Military & academic distinction do not

come under this scope.

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Article 18

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1954 Bharath Rathna, Padma Vibhushan, Padma Bhushan, and Padma shri awards

are mere decorations and not to be used as appendage to the awardees' name.

These awards do not violate of the Principles of equality as guaranteed by Art. 14 and art. 18

Article 18

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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.

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.

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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 traffic in human beings and 24-forced labor.

Right to Constitutional Remedies.

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

The right to move the supreme Court for the enforcement of the F.rights is conferred by this Part.

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, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

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Right to Constitutional Remedies

Habeas Corpus: ‘to have a body’ Produce the detained person before the

court.

To set at Liberty, a person confined without Legal justification. Issued Against ‘State’, private individual or

an organization.

Mandamus: HC or SCCommands a person or a body to perform

some public or legal duty which he has refused to perform.

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Right to Constitutional Remedies

Article 32 right to cons remediesProhibition: writ issued by

SC or HC to a subordinate courtforbidding it to continue the

proceedings, if it has over crossed its jurisdiction.

quo-warranto: legal proceeding during which an

individual right to hold an office or governmental privilege is challenged.