Fundamental Rights

Six Fundamental Rights have been provided by the Constitution:

1.  Right to equality (Article 14-18)

2.  Right to liberty (particular freedoms) (Article 19-22)

3.  Right against exploitation (Article 23-24)

4.  Right to freedom of religion (Article 25-28)

5.  Cultural and educational rights (Article 29-30)

6.  Right to constitutional remedies (Article 32-35)

Right to Property:

  • The right to acquire, hold and dispose of the property has been ceased to be a fundamental right, but it continues to be a legal or constitutional right. [Art. 300A]

Article 14

Article 14 of the constitution provides that the State shall not deny any person equality before the law or equal protection of the laws within the territory of India.

Exceptions to the provision of equality before law, allowed by the Indian Constitution are:

  • The President or the Governor of a State is not answerable to any Court for the exercise and perfor-mance of the powers and duties of his office.
  • No criminal proceeding can be instituted or continued against the President or a Governor in any Court during his term of office.
  • No civil proceeding in which relief is claimed against the President or the Governor of a State can be instituted during his term of office in any Court in respect of any act done by him in his personal capacity, without a prior notice of two months.
  • The above immunities do not bar (a) Impeachment proceedings against the President, (b) Suits or other appropriate proceedings against the Government of India or the Government of a State.
  • Exceptions acknowledged by the comity of nations in every civilized country, in favour of foreign Sovereigns and ambassadors.
  • The guarantee of 'equal protection' is a guarantee of equal treatment of persons in 'equal circumstances', permitting differentiation in different circumstances.

Article 15

  • Article 15 of the Constitution states that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
  • No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subjected to any disability, liability restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment or 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.
  • Nothing in this article shall prevent the State from making any special provisions for women, children or any socially and educationally backward classes.

Article 16

Article 16 guarantees 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.
  • No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or any of them, be ineligible for any employment under the State.

The Mandal Commission Case

A nine-judge Bench of the Supreme Court has laid down in India Sawhney's Case (popularly known as the Mandal Commission Case) regarding reservation in Government employment, that:

  • Under Article 16(4) provisions can be made in favour of the backward classes in the matter of employment by Executive orders also.
  • Backward class of citizens is not defined in the Constitution. A caste may also constitute a class.
  • The backwardness contemplated by Art. 16(4) is mainlysocial. It need not be both social and educational.
  • Income or the extent of property can be taken as a measure of social advancement and on that basis the ‘ Creamy layer’ of a given caste can be excluded.
  • The reservations contemplated in Art. 16(4) should not exceed 50%.
  • Reservation of posts under Art. 16(4) is confined to initial appointment only and cannot extend to providing reservation in promotion.

Note:   Mandal Commission was set up in 1979 under the Chairmanship of Bindeshwari Prasad (B.P.) Mandal, M.P. (Former Chief Minister of Bihar).

 

  • The 77th Amendment has provided to continue reservation in promotion for the S.C. and S.T.
  • Identification of backward classes is subject to judicial review.

Article 17

  • It ensures Abolition of Untouchability. The word 'untouchability' has not been defined either in the Constitution or in the relevant Act of Parliament. It has been assumed that the word has a well known connotation.

Article 18

  • It ensures Abolition of titles. It prevents the State from conferring any title.
  • This ban is only against the State and not against other public institutions, such as Universities.
  • The State is not debarred from awarding military or academic distinctions, even though they may be used as titles.
  • The State is not prevented from conferring any distinction or award which cannot be used as a title. Bharat Ratna or Padma Vibhushan cannot be used by the recipient as a title and therefore does not come within the Constitutional prohibition.

Article 19 provides the six freedoms of:

  • Speech and expression;
  • Assemble peacefully and without arms;
  • Form associations or unions;
  • Move freely throughout the territory of India;
  • Reside and settle in any part of the territory of India; and
  • Practise any profession, or to carry on any occupation, trade or business.
  • State can impose restrictions on the freedom of speech in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
  • Restrictions can be imposed on the right to form associations in the interests of the sovereignty and integrity of India or public order or morality. Restrictions can also be imposed on freedom of movement and reside and settle in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
  • State can prescribe the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. State can exclude any citizen from a business or industry run by the Government or a body of Government.
  • There is no specific provision in the Constitution guaranteeing the freedom of the press because freedom of the press is included in the wider freedom of 'expression' which is guaranteed by freedom of expression under Art. 19.

Article 20

  • Article 20 guarantees certain protection in respect of conviction for offences. It prohibits:
  • Retrospective criminal legislation, commonly known as ex post facto legislation.
  • Double jeopardy or punishment for the same offence more than once.
  • Compulsion to give self-incriminating evidence.

Article 21

Article 21 of Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

  • Under the 'Due Process' Clause of the American Constitution, the Court has assumed the power of declaring unconstitutional any law which deprives a person of his liberty without reasonableness and fairness.
  • In England courts have no power to invalidate a law made by Parliament.
  • In the case of Gopalan Supreme Court held that our Constitution had embodied the English concept.
  • In Maneka's case the Supreme Court held that a law made by the State which seeks to deprive a person of his personal liberty must prescribe a procedure for such deprivation which must not be arbitrary, unfair or unreasonable. It follows that such law shall be invalid if it violates the principle of natural justice.
  • Article 21 (A) makes the right of education for children of the age of 6 to 14 years a fundamental right. {Ref.: 86th  Amendment Act, 2002]

Article 22

  • It says that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest.
  • No arrested person can be denied the right to consult, and to be defended by a legal practitioner of his choice.
  • Every person who is arrested and detained in custody is to be produced before the nearest magistrate within a period of twenty-four hours of arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person can be detained in custody beyond that period without the authority of a magistrate.
  • The above safeguard is not available to an enemy alien and a person arrested or detained under a law providing for preventive detention.
  • The Constitution authorises the Legislature to make laws for preventive detention for the security of Stall the maintenance of public order, or the maintenance of supplies and services essential to the community, or for reasons connected with Defence and Foreign Affairs. [Ref.: Art.22]

Article 23

Article 23 provides Right against Exploitation in following respects:

  • Traffic in human beings and beggar and other similar forms of forced labour are prohibited.
  • The State can impose compulsory service for public purposes, and in imposing such service the State cannot make any discrimination on grounds only of religion race, caste or class or any of them.

Article 24

  • Special provision for the protection of children is made in Art. 24 which provides that no child below the age of fourteen years can be employed to work in any factory or mine or engaged in any other hazardous employment.
  • It provides Right to Freedom of Religion.

Article 25

  • It provides freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health.
  • Under Art. 25 State can regulate religious activities and provide for social reforms and throw open Hindus religious institutions of public character to all sections of Hindus.

Article 26

Article 26 guarantees following rights to all religious groups subject to public order, morality and health:

  • Establish and maintain institution for religious an charitable purposes;
  • Manage its own affairs in matters of religion;
  • Own and acquire movable and immovable property;
  • Administer such property in accordance with law.
  • The State cannot compel any citizen to pay any taxes for the promotion or maintenance of any particular religion or religious institution.      [Ref.: Art. 27]
  • No religious instruction can be provided in any educational institution wholly maintained out of State funds. [Ref.: Art. 29,]
  • Where a religious community is in the minority, the Constitution enables it to preserve its culture and religious interests by providing that the State shall not impose upon it any culture other than the community's own culture.      [Ref: Art. 29(1)/1
  • Such community shall have the right to establish and administer educational institutions of its choice and the State shall not, in granting aid to educational institutions, discriminate against such an educational institution maintained by a minority community on the ground that it is under the management of a religious community. [Ref.: Art. 30]
  • Full compensation has to be paid if the State seeks to acquire the property of a minority educational institution.      [Ref.: Art. 30 (1A)]
  • The Fundamental Rights are guaranteed by the Constitution not only against the action of the Executive but also against that of the Legislature.
  • Right to constitutional remedy, which was termed 'soul of the constitution' by Dr. B.R. Ambedkar, has been guaranteed by Art. 32 of the Constitution.

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