Fundamental Rights and Fundamental Duties

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FUNDAMENTAL RIGHTS & FUNDAMENTAL DUTIES

In America, constitution is written. FUNDAMENTAL RIGHTS are also
Coded. But in England & constitution is
Unwritten & FUNDAMENTAL Rights are also not coded. But
This does not mean that democracy is
Meaningless here. The case is reverse
Here. That is an individual has
The right & Fundamental Rightseedom to do anything till
They do not violate ordinary law of the
Land. Individual liberty is secured through
Judicial decisions which determine rights of
The individuals when particular cases are brought
Before the court.

The Judiciary is the guardian of individual
Rights in England as is there elsewhere. But
There is a difference

i.                        Courts have fullest power of protecting the
Individuals Fundamental Rightsom executive tenancy, but  not Fundamental Rightsom the
Legislative laws. I.e. legilature has no binding
Upon FUNDAMENTAL Rights in England.
  1. No power of judicial review over legislation
At all.

              So there is nothing such as “Fundamental”
In England for rights, but it has individual
Rights.

FUNDAMENTAL Rights in USA:-

The American Bill of Rights in
The constitution has been protected Fundamental Rightsom the
Legislature laws along with executive laws
Hence, there is “Judicial Supremacy”
As opposed to “Parliamentary Supremacy” in
America.

History of the demand for FUNDAMENTAL Rights in India:-

In India,

         The Simon Commission & JPC who
are responsible for GOI, 1935 have rejected
the proposal for declaration of FUNDAMENTAL Rights saying
that neither there is a will nor means to
make them effective.

But Nehru report was in favour of
Bill of Rights because individual liberty
should be protected Fundamental Rightsom legislature who
will become subservient of Executive.

The makers of our constitution have adopted FUNDAMENTAL Rights to protect

Individual liberty & Ensure social, economic & political justice for every person.

No. of FUNDAMENTAL RIGHTS cases in HC & SC’s
No of presorogative writs issued in the court’s
Talk about the success of adoption of FUNDAMENTAL Rights in the constitution

Part III of our constitution has FUNDAMENTAL Rights
Which at as limitations on the powers of executive as well as legislature. Though this model is taken Fundamental Rightsom USA, neither we have, “Judicial Supremacy” as that of USA, nor “Parliament Sovereignity” as that of UK.

India’s constitution, rather makes a compromise b/t these two i.e.,

”Judicial supremacy” &
“Parliament Sovereignity”

Parliament can make any law but should not contravene any of the FUNDAMENTAL Rights in the constitution. If it does that HC’s & SC’s are competent to declare that such law is void & unconstitutional. *Art 13 (2).

Our constitution follows more of US model than UK’s.

FUNDAMENTAL Rights of India as distinguished Fundamental Rightsom Ameircan, Bill of Rights:-
Firstly, American Bill of Rights are absolute & the powers of the state to impose any restrictions on the FUNDAMENTAL Rights of a citizen in the collective interests have to be evolved by the Judiciary. Whereas in India,

This power has been imposed on legislature by the constitution in case of major FUNDAMENTAL Rights., at the same time the power of judicial review to determine the reasonableness of restrictions imposed by the legislature.

Secondly, The Janata Government through 44 Amendment Act has omitted Art 19.1 (7) & 31 related to the FUNDAMENTAL RIGHTS “Right to Property” and trousposed to a new Article 300A as chapter IV of Part XII.

Thus it is not  a FUNDAMENTAL RIGHTS but legal right. That is, till the above right is a “FUNDAMENTAL RIGHTS” it was a constitutional limitation on the paliamentary’s power itself but it has become a legal right the legislature itself has become the guardian of the above “Right to property”.

In that case all the FUNDAMENTAL Rights can be removed out of Part III taking legislature to be imfallible & innocent.

But legislature is not always infallible hence constitution safeguards are necessary to protect the individual Fundamental Rightsom legislative tyronmy.

Net result of the amendment upon “Right to Property”._-

  1. “Rights to Property” is no longer a FUNDAMENTAL RIGHTS., i.e. if any of the executive fiat without the authority of law or in contravention of any law has taken away the property of any individual, he does not have right to move the “SC”.
  2. If legislature makes a law depriving a person “Right to property” it cannot be challenged in court because Art 19 (1) (7) has ceased to exist.
  3. Since Art 31 (2) i.e. individual’s “Right to Property” has been removed one cannot have a guarantee of compensation for loss of property due to act of any legislature.

Thirdly, The arena of FUNDAMENTAL Rights have been narrowed down by introducing exceptions to FUNDAMENTAL Rights.

*The Exceptions are 31A, 31B, 31C, 31D.

*31A & 31C are exceptions to FUNDAMENTAL Rights enumerated in Art 14 & 19.

That is any law coming under Art 31A.
(& related to agrarion reform) or
Art 31C (for implementation of DPSP’s).
Cannot be invalidated by the court saying he it has contravened with
Art 14 (Right to Equality) &
Art 19 (Fundamental Rightseedom of expression, assembly etc.).

*The exception of 31B, says that if any enactment is included in the 9th schedule that that Act shall not be declared unconstitutional on the ground of contravention of any of the FUNDAMENTAL Rights.

But can be challenged on the ground of damage to Basic Structure of the constitution.

Fourthly,

The Fundamental Duties 51(A) introduced through the Amendment Act 1976.

Court can refuse to enforce a FUNDAMENTAL RIGHTS for a person, who has coilated any of the duties specified in the constitution.

Fifthly FUNDAMENTAL Rights enumerated in our constitution is exhaustive. Where as US constitution says that enumeration of certain rights in the constitution cannot deny or disparage others retained by the people. But there is no such unenumerated right under our constitution..

Any expansion of the FUNDAMENTAL Rights can be done by courts through “Judicial interpoetation.” Eg: SC has enlarged the scope of Art 21 hence the distinguishment

Rights following Fundamental Rightsom othr provisions of the constitution:-

i.e. other justiciable right provided by our constitution outside part III.

Art 265 “no tax shall be levied or collected except by authority of law.”

i.e. if an do individual is subject to arbitrary taxation without the sanction of the legislature than that individual can have remedy Fundamental Rightsom the courts.

Art 300A Right to property

Art 301 Subject to the provision of this part, trade, commerce & inter course throughout the territory of India shall be Fundamental Rightsee.”

If the legislature or executive law imposes any restriction upon the individuals Fundamental Rightseedom of doing trade, commerce or intercourse which is not justified by the other provisions of part XIII.

Part XIII Trade, commerce & intercourse
Other provisions dealing with the restrictions that can be imposed

Than he can move courts.

Difference between the FUNDAMENTAL Rights & rights secured by other provisions of the constitution is that

If FUNDAMENTAL Rights are violated that it can be challenged in SC (Art 32), while
Rights Fundamental Rightsom other provisions of the constitution are scoilated than he can get relief through an ordinary suit or Fundamental Rightsom an HC (art 226) but not “SC”.

Amendability of  Fundamental Rights: Basic features:

Untill Golaknath case SC held that any part of the constitution including FUNDAMENTAL Rights & Art 36B (procedure of Amendment) is amenable.

But in Golaknath Vs state of Punjab case held that FUNDAMENTAL Rights have “Transendental position” by the constitution hence No authority including Parliamentary can amend the FUNDAMENTAL Rights even under art 36B.

But by 24th Amendment Act, 1971;

Art 13 & 36B are amended, making clear that FUNDAMENTAL Rights can be amended under art 36B.

Hence SC’s decision in above case is overrided.

In Keshava nanda Bharati’s(13 Judge bench) case, SC has uphed these amendments & overruled Golaknathi case also.

That is Parl. Can amd FUNDAMENTAL Rights under art 36B but has introduced a new concept called “ BASIC FEATURES” of the constitution which shall not be violated.

In Minerla Mills vs Union of India case, sc has invalidated the U (4) & (5) of Art 368 that they are violating the basic features of the constitution.

This concept of “BASIC FEATURES” of the constitution can be eliminated by a bench which is larger than “13 judge bench in keshavananda’s case”.

  • Classification of Fundamental Rights:-

FUNDAMENTAL Rights in our constitution are classified as

a.                   Right to Equality.
b.       Right to Particular Fundamental Rightseedoms.
c.        Right against exploitations.
d.       Right to Fundamental Rightseedom of religion.
e.        Cultural & Educational rights.
f.        Right to property eliminated by 44th Amdement.
g.        Right to constitution’nal remedy.
(7) Rights.
(6) Rights only.
  • FUNDAMENTAL Rights (granted only to citizens):-

Art 15  —  Protection Fundamental Rightsom discrimination on grounds of reli., race, cast etc.

Art 16  —  Equality of opportunity in matters of empl..

Art 19  —  Fundamental Rightseedoms.

Art 30  —  Cultural & Ed’nal rights of minorities.

*FUNDAMENTAL Rights (granted to any person on the soil of India i.e. Citizen or foreigner)

Art 14

Art 20 (Protection in respect of conviction of offences)

Art 21 (Protection of life & personal liberty)

Art 23 (Right against exploitation)

Art 25 (Fundamental Rightseedom of Religion)

Art 27 (Taxes for Promotion of Religion)

Art 28 (Religious Instruction)

  • FUNDAMENTAL Rights (“Negatively” worded)

Eg:-  Art 14 “The State shall not deny to any person equality before the law…

         Like these “Prohibitions” to the state.

Art 15 (1)

Art 16 (2)

Art 18 (1)

Art 20

Art 22 (1)

Art 28 (1)

Some (Truly worded)

Right to Religious Fundamental Rightseedom (Art 25)

Cultural & Ed’ual rights (Art 29 (1), 30 (1)) Like “Benefits” upon the individual.

  • Classification (Extent of Limitation)

FUNDAMENTAL Rights which are addressed against the executive but impose no limitation on the legislature.

Art 21 “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

FUNDAMENTAL Rights which make absolute limitations upon the legislature. So that legislature cannot regulate the exercise  of such rights. Art 15, 17, 18, 20, 24.
FUNDAMENTAL Rights which empowers the legislature to impose reasonable restrictions in exercising of these rights, in the public interest.

Art 19 Reasonable restrictions such as security of the state, public order, public morality & the like.

  • F Rights in Part III  Which are available not only against the state but also against private individuals.

They are:-

15 (2) (Equality in access of public places)

17 (Prohibition of Untouchability)

Art 18 (3)-(4) (Prohibition of acceptance of foreign title)

Art 23  (Prohibition of Traffic in human beings)

Art 24 (Prohibition of Employment of Children in Hazardous Employment).

These provisions are not self executory. But indirectly enforceable unless a law is made to give effect to them.

Thus, FUNDAMENTAL Rights can be classified on the basis of Executory & Self-Executory.

Art. 14: Equality before the Law and Equal Protection of the laws.

Eg E.P.l. though seem to be identical they mean different things.

E.B. l. a somewhat we accept (nor any disadvantage) no special privelage is given to any individual.

All classes of people are subjected equally to on ordinary law.

No distinction b/f officials & private citizens but exceptions:-

1 (P) & Government not answerable to courts for performs of his powers & duties.

(2) No Criminal Proceeding can be instituted or continued against (p) or (G) during their term of office.

(3) Civil Proceedings can be instituted against (p) or (G) only after giving 2 months of notice to them for acts done in their personal capacity.

But (p) or Gov. can not immuned Fundamental Rightsom

I.                        Impeachment
      II.            Suits or other appropriate proceedings against GOI or Gostate.

(4) Exceptions also include foreign sovereigns & Ambassadors.

E.P.L:-

That among equals,

The law should be equal and equally administered, that like should be treated alike.

i.e. a more +ve concept.

Right to equality of treatment in equal circumstances

State can make affimative action against unequals by providing facilities & opportunities to get then onto equal positions & circumstances on par with others.

By the way of for ex:- taxing, etc.

It should be reasonable.

Art 14, 15 & 16:-

         As per SC all these (3) articles euslerine the principle of equality & Absence of Discrimination.

Art 14: Principle to Citizens & Aliens both.

Art 15: To citizen’s only.
                    &
Prohibits discrimination against any citizen on any aspect of the specified grounds.

Art 16: To citizens only,
                   &
            Prohibits discrimination in the aspect of public employment aspect.

Art 15: Prohibition of discrimination on grounds only of religion,
                                                                                               Race,
                                                                                               Caste,
                                                                                               Sex or
                                                                                               Place of Birth.

  1. State
  2. No Citizen
a.       Shops…
b.       Wells…
3.                   Women & Children
4.       SC’s & ST’S…

Write down the Art here that itself explains.

“Only” Other than these grounds cannot be declared unconstitutional.

  1. Against state not to
a.       Shops..
b.       Wells…
  1. Against Subjugation of any citizen
  2. SP Provisions for Women & Children.
  3. SP Provisions for EBC’s in SC’s, ST’s & OBC’s.

Art 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, sex descent, place of birth or any of them, be ineligible for …  any office under the state.
  • Exceptions to this rule of equality of opportunity are:-
i.                        Parl. Can lay that residence can be made as a condition for certain classes of employment in a state or local authority.
                                                                                                              16 (3).
Eg: Art 371D insected & special provision for reservation of certain posts on the condition of residence are made in A.P. (Telangana, Mulkis)
      1. State can make reservation of posts for backward class of citizens. Art16 (4).
      2. Offices connected with a religion are reserved for that religion members only.
4.       Under are Art 335, claims of SC’s & ST’s are to be taken into consideration in matters of oppointment to the posts under the union & state while maintaining efficiency of admin..
  • No such reservation is made for women under Art 16 (4).
  • The Mandal Commission (Indra Sawhney’s Case)
A (9) judge bench of the SC laid down the following important points which summarise the law on the issue of reservations in Government Employment.
    1. Art 16 (4) is exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment.
    2. Backward classes of citizens is not defined in the constitution.. There is an integral connection b/f caste, occupation, poverty & social backwardness. In the Indian context lower castes are treated as backwards. A caste may by itself constitute a class.
    3. The backward classes can be identified in Hindu Society with reference to castes along with other criteria such as traditional occupation, place of  residence, law of edu., etc., and in communities where caste is not recognized the rest of the criteria would apply.
    4. The backwardness contemplated by Art 16 (4). Is mainly social. It need not be both social & ed’nal…
    5. “Means-Test” signifies imposition of an income limit for the purpose of excluding persons Fundamental Rightsom the backward classes. Those whose income is above that limit are referred to as the “Creamy layer”. 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.
    6. For getting reservations a class must be backward and should not be adequately represented in the services under the state.
    7. Reservations contemplated in Art 16 (4) should not exceed 50%.
    8. The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, service or cadre etc.
    9. Reservation for BC’s is at appointment only & not at promotion. 16 (4).

But by constitution amdment 77’s Act, 1995, 16 (4A) inserted where reservation in promotion also for S.C. & S.T.

10. Identification of bc’s is subject to judicial review.

Art 17: Abolition of Untouchability:-

“Untouchability is abolished and its practise in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.”

Parl. Has enacted,

  • Untouchability (Offences) Act, 1955 & amended & renamed as
  • Protection of civil rights Act, 1955.

The word “Untouchability” is not defined in the constitution nor in the above Act.

Art 18: Abolition of Titles:-
During, British rule,

Nationalists complained that the Government is abusing its power for imperialistic purposes & for corrupting public life by caferring titles.

So constitution makers have altogether abolished titles.
But,

a.                   Universities can transfer titles or honours.
b.       State is not debarred Fundamental Rightsom awarding military or academic distinctions. Which may be used as titles.
c.        State is not prevented Fundamental Rightsom canferring any distinction or award such as Bharat Ratna or Padma Vibhushan etc., but they cannot be used as titles.

Critics against Awarding of Bharat Ratna etc.,

  • Awarding of Bharat Ratna, Padma Vibushan, Padma Bhushan etc.,
Tend to make distinctions according to rank.

Moreover, Bharat Ratna’s have been assigned a place in the “Warrant of Precedence”.

There is no sanction in the constitution or any law against a person who uses these decorations titles to their name’s..

There is an exception in Art 18 of state can grant military or academic distinction.

  • Art 19: The six Fundamental Rightseedoms:

To promote the ideal of liberty, given in preamble.

The (6) Fundamental Rightseedoms are:-

a.                   Fundamental Rightseedom of speech & expression;
b.       Fundamental Rightseedom of assembly (Peacably & without); or us
c.        Fundamental Rightseedom of association (or unions);
d.       Fundamental Rightseedom of movement (Fundamental Rightseely throughout India);
e.        Fundamental Rightseedom of Residents & settlements
f.        Fundamental Rightseedom of Profession, Occupation, Trade or Business;
  • Limitation upon the Fundamental Rightseedoms:-
No state can give absolute individual rights. Individual liberty has to yield to the common good. Our constitution attempts to “ Strike a balance between individual liberty and social control”.
So it has specified reasonable limitations as well upon Fundamental Rightseedoms.
2 [Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the state Fundamental Rightsom making any law, in so far as such law imposes reasonable restrictions on the exeruse of  the right enferred by the said sub-clause in the interests of the]  
  • Soveignity & Integrity of India, the security of the state.
Fundamental Rightsiendly relations with foreign states, public order,
Decency or morality or in relation to contempt of court,
Defeemation or incitement to an offence.
3.                   * [] * Soverignity & integrity of India or public order.
4.       * [] * Soverignity & integrity of India or public order.
5.       * [] Either in the interests of the government public or for the protection of any S.T.
6.       * [] * (i) the professional or technical qualifications necessary for practicing any
      1. Art 16 (4) is exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment.
      2. Backward classes of citizens is not defined in the constitution.. there is an integral conncetion b/t caste, occupation, poverty & social backwardness. In the Indian context, lower castes are treated as backwards. A caste may by itself constitute a class.
      3. The backward classes can be identified in Hindu Society with reference to castes along with other criteria such as traditional occupation, place of residence, lack of education, etc. and in communities where caste is not recognized the rest of the criteria would apply.
      4. The backwardness contemplated by Art 16 (4) is mainly social. It need not be both social & Ed’nal..
      5. “Means-Test” Signifies imposition of an income limit for the purpose of excluding persons Fundamental Rightsom the backward classes. Those whose income is above that limit are referred to as the “Creamy layer”. 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.
      6. For getting reservations a class must be backward and should cannot be adequately represented in the services under the state.
      7. Reservations contemplated in Art 16 (4) should not exceed 50%.
      8. The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, service or cadre etc.,
      9. Reservation for BC’s is at appointment only & not at promotion. (16(4)).
But by constitution amdmt. 77th Act, 1995, 16(4A) inserted where reservation in promotion also for S.C. & S.T.
10.                Identification of bc’s is subject to judicial review.

Art 17: Abolition of Untouchability:-

“Untouchability is abolished and its practise in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.”

Parl. Has enacted,

*Untouchability (Offences) Act, 1955 & amended & renamed as

  • Protection of civilrights Act, 1955.

The word “Untouchability” is not defined in the constitution nor in the above Act.

Art 18: Abolition of Titles:-

During, British rule,

            Nationalists complained that the Government is abusing its power for imperialistic purposes & for corrupting public life by carferring titles.

So constitution makers have altogether abolished titles.

But,

a.                   Universities can carfer titles or honours.
b.       State is not debarred Fundamental Rightsom awarding military or academic distinctions. Which may be used as titles.
c.        State is not prevented Fundamental Rightsom canferring any distinction or award such as Bharat Ratna or Padma Vibhushan etc., but they cannot be used as titles.

Critics Against Awarding of Bharat Ratna etc.,

Awarding of Bharat Ratna,

Padma Vibushan,
Padma Bhushan Etc.,

Tend to make distinctions according to rank.

Moreover, Bharat Ratna’s have been assigned a place in the “Warrant of Precedence”.

There is no Sanction is the constitution or any law against a person who uses these decorations as titles to their name’s

There is an exception in Art 18 of state can grant military or academic distinction.

  • Art 19: The Six Fundamental Rightseedoms:-

To promote the ideal of liberty, given in preamble.

The (6) Fundamental Rightseedoms are:-

a.                   Fundamental Rightseedom of Speech & Expression;
b.       Fundamental Rightseedom of assembly (Peacably & Without); arms
c.        Fundamental Rightseedom of Association (or unions);
d.       Fundamental Rightseedom of Movement (Fundamental Rightseely Throughout India);
e.        Fundamental Rightseedom of Residence & Settlement;
f.        Fundamental Rightseedom of Profession, Occupation, Trade or Business;

*Limitation upon the Fundamental Rightseedoms:-

         No state can give absdute individual rights. Individual liberty hast to yield to the common good. Our constitution attempts to “Strike a balance between individual liberty and social control”

         So it has specified reasonable limitations as well upon Fundamental Rightseedoms.

  • (2) Nothing is sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the state Fundamental Rightsom making any law, in so far as such law imposes reasonable restrictions on the excuse of the right enferred by the said sub-clause in the interests of the]
  • * Soverignity & Integrity of India, the security of the state, Fundamental Rightsiendly relations with foreign states,
  • Public Order,
  • Decency or morality or in relation to contempt of court,
  • Defermation or incitement to an offence.

(3) * [] * Soverignity & Integrity of India or Public order.

(4) * [] * Soverignity & Integrity of India or Public order.

5.                   *[]* Either in the interests of the In-Public or for the protection of any S.T.
6.       *[]* (i) the professional or technical qualifications necessary for practicing any
            Profession or carrying an any occupation trade or business or,
( ) the carrying on by the state, or by a corpn owned or controlled by the state, of any trade, business, industry or service, whether to the exclusion, complete or partial,
of citizens or otherwise.
[continue in t.6 DDB itself].
Hence, any law made by the state imposing restrictions on the above specified grands, such a law cannot be declared “unreasonable” by a court of law.
And court should determine whether the law is reasonable or not. If it is not than it can be declared that law as void and unconstitutional.
TO check whether the restriction is reasonable or not SC has laid down certain guidelines.
  • Fundamental Rightseedom of Press:-

There is no such specific provision in our constitution because this is included in the wider Fundamental Rightseedom of “Expression” Art 19 (1) (a).

Again this Fundamental Rightseedom is subject to certain reasonable restrictions imposed by state like “Censorship”.

Art 19 is suspended when Parl. Of Emerg. Under Art352 is made.

*Art 20: Protection in respect of conviction for offences.

  1. No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
2.                   No person shall be prosecuted and punished for the same offence more than once.
3.                   No person accused of any offence shall be completed to be a witness against himself.

*Art (21): Protection of life and personal liberty. No person shall be deprived of his life and personal liberty except according to procedure established by law.

*Art 21A:- Right to Elementary Education 86th Amendment 2002.

Personal Fundamental Rightseedom of a person is secured through the issue of writ by SC (Art 32) & HC Art (226)..

  • Britain follows “ Procedure Estd by law” which gives supremacy to legislature whereas

Us follows “Due process of law” making Judiciary powerfull.
India follows “Procedure estd. By law but still there exists Judicial review hence more of British system than U.S. System preferred the supremacy of the legislature to that of the Judicary.

“Procedure Estd. By law” means legislature makes the law and that law has to be followed accordingly it cannot be challenged in courts.

“Due process of law” means

Judiciary decides whether the act done by executive / legislature is correct or not [i.e. similar to Judicial review]

Expression of “Personal liberty” of Art 21 also covers the Fundamental Rightseedoms under Art 19 as well. Hence Art 19 & 21 are not water tight compartments but overlap over each other.

Hence, a law coming under Art 19 should satisfy under Art 21 also.

“Reasonable” Means that the law should not violate the principle of natural justice. In the context of reasonable restriction.

&Art 22: Protection against Arbitrary arrest and detention.

Any case coming under Art 22 should comply with Art 21 & Art 22 both.

Procedural safeguards against

Arbitrary arrest and detention are

a.                   informed of grounds for arrest

(ii) given right to consult legal practitioner.
(iii) produced before magistrate (24 hrs)
(iv) Above safeguards not available to

  • Enemy alien.
  • Person is under “Preventive Detention”.

Preventive Detention:

Means detention of a person without a trial.

P.D. is to prevent a person Fundamental Rightsom acts prejudical to

a.                   Security of the State.
(ii) Public Order.
(iii) Maintenance of Supplies & Services essential to the community.
(iv) Defence
(v) Foreign affairs or security of India of a person
  • P.D. is made if there is no sufficient proof to justify his detention but there is a suspicion that he may do wrong full acts if he is not detained.
  • P.D. is
  • done for only 3 months.
  • Informed of grounds.
  • Opportunity of representation.
  • P.D. during peace is unknown in U.S. & U.K. but in India.

Right Against Exploitation.

  • Art 23: Prohibition of Traffic in Human beings and forced Labour.
  1. Traffic in human beings, beggar &
Other similar forms of forced labour care prohibited & are punishable. [like slavery, women & child crippled for immoral]
2.                   States can impose,
Compulsory service for public purposes,
[like Military or social service]
here, state should not do any discrimination on grounds only of religion, race, caste or class or any of them.
  • Art 24: Prohibition of Employment of Children in Factories Etc.,

              A Child < 14 years of age should not work in the factory or mine or any hazardous employment.

This is an absolute FUNDAMENTAL RIGHTS.

Right to Fundamental Rightseedom of Religion.

  • Art 25: Fundamental Rightseedom of Conscience and Fundamental Rightsee profession, practice and propogation of religion.
  • Art 26: Fundamental Rightseedom to manage religious affairs.
  • Art 27: Fundamental Rightseedom as to payment of taxes for promotion of any particular religion.
  • Art 28: Fundamental Rightseedom as to attendance at religious instruction or religious worship in certain ed’nal institutions.
I.                        India, has no (1) state religion,
      II.            No tax for purpose of any religion. (i) (ii) (Art 27)
   III.            No religious instruction in the institution which is wholly fended by state.
    IV.            Consent of himself or guardian is regd. If instruction is given in recognized or aid receiving institution. (iii) (iv) (Art 28).
3.                   Fundamental Rightseedom of conscience, profession, practise & Propogate subject to
  • Public order, Morality & Health
  • State regulations of economic, financial, political or other secular activity
  • Social reform measures & throwing open of Hindu reli inst. To all classes & Sections of Hindus.
4.       Any religion can,
  • Maintain institution for rel. & charitable purpose.
  • Manage its own affairs,
  • Acquire movable & immovable property
  • Administer that property in accordance with law. [Art 26]
  • SC has upheld that conversion should not be made by force, Fundamental Rightsaud, inducement or allurement but of course voluntarily.
  • Art 29: Protection of interests of minorities.
    1. Citizens of India, having a distinct language,
                          Distinct language,
                           Script or
                            Cultural of its own
                               Have the right to conserve.
2.                   No Citizen shall be denied admission into any edul institution maintained or receiving aid Fundamental Rightsom the state on grounds only of religion, race, caste, language or any of them.
  • Art 30: Right of Minorities to (rel. or Lang.) Establish and administer Educational institutions.
Secularism means-neutrality in religion.
No appeasing of minority.
A Minority ed’nal institution can reserve 50% of its seats for its own minority community.
  • History of the Right to Property Under the Constitution of India.

Earlier, “Right to Property” was a FUNDAMENTAL RIGHTS under Art 19 1 (7) & Art 31 (1) but Janata Government through the 44th amdment Act of ___ . has eliminated the FUNDAMENTAL RIGHTS status by repealing Art 19 1 (7) & Art 31 (1) and give it a legal right status under Art 300A.

Hence, the violation of right to property can no longer have speedy remedy through the SC. But can be had through HC or ordinary suits.

Still there are (2) exceptions, that compensation has to be given to lands belonging to,

  1. Minority ed’nal institution.
  2. Personally cultivated by the owner which does not exceeds the statutory ceiling.
  • Art 32: Constitutional Remedies for Enforcement of Fundamental Rights.

This Art is the “Means to make FUNDAMENTAL Rights Effective”.

If action of Executive or legislature abridges FUNDAMENTAL Rights than courts can declare it as void. (SC 32 & HC 226)

  • and issue the writs of
  • habeas corpous
  • Mandamus,
  • Prohibition,
  • Certiorari, and
  • Quo warran to
To enforce that FUNDAMENTAL RIGHTS.
  • But Fundamental Rightsights can be suspended during a proclamation of emergency in the manner laid down in the constitution [Art 359]
  • This constitution’nal remedy is not an ordinary law & itself is an FUNDAMENTAL RIGHTS.
  • Is a cornern stone of the entire edifice setup by the
  • SC can refuse to issue or writ
  • On technical grounds.
  • If another adequate legal remedy open to him.
  • Other than FUNDAMENTAL RIGHTS inFundamental Rightsingement will not be determined under Art 32.
  • “Prerogative Writs”
are the writs issued by the courts if,
there is no remedy available under ordinary law
                         or
      remedy available is inadequate

“Prerogative writs” are

habeas corpus,
mandamus,
prohibition,
certiorari &
quo warrant.
  • Diff. Between the Jurisdiction of the SC and the HC to issue writs.
  1. HC jurisdiction wider than SC because, SC issues writ only if FUNDAMENTAL RIGHTS is violated, but
HC issues writ in case of FUNDAMENTAL Rights and ordinary law’s as well i.e. if other than Part III of constitution is violated. For Eg:- Art 286 (Sales tax)
2.                   SC can issue a writ against a person or government within the territory of India,
                 But
A HC can issue a writ against a person or government within the territorial jurisdiction of that HC only.
  • The supreme court as the guardian of FUNDAMENTAL Rights.
SC cannot refuse relief under Art 32 on the ground that
i.                        Aggrieved may have his remedy Fundamental Rightsom some other court or under the ordinary law.
                                ii.            Facts have to be investigated & want of evidence
                              iii.            The petitioner has not asked for the proper writ.
                              iv.            It is a PIL.
Not only a writ is immune Fundamental Rightsom legislature’s law but also the SC’s power to issue a writ is also immune.
There is a provision in the constitution that SC & HC can empower other courts to issue a writ if parl. Makes a law but no such law is passed hence only SC & HC can issue writ’s.
  • Writs their scope:
Habeous Corpus:-
Means “To have a body of”
Issued against on official or private person
If not followed, than punishment for contempt of court.
Court will know the reason for the person’s imprisonment &
Fee’s if no lawfull justification.
Guaranteeing Art 21: Right to life & personal liberty.
I.e. if executive arrests a person without the authority of law or in contravention to the procedure estd. By law.
1 habeous corpus not issued
  • If a person is not in jurisdiction of court
  • In case of  a criminal charge
  • Contempt by a court of record or by parliament.
Mandamus:-      
  • “To command”
  • To public officers & Govt. itself.
  • To inferior courts & other judicial bodies
  • Who refuse to exercise a public or quasi public legal duty to do that duty. [can be restraining Fundamental Rightsom duty also]
  • In case of HC it is a
  • Discretionary remedy
  • And many refuse to grant where there is an alternative remedy available.
  • Also to enforce other than FUNDAMENTAL RIGHTS also
  • Statutory duty imposed by a constitution or a statute.
  • Mandamus not against
  • President, Governor & Private or individual body.
Prohibition:
  • Means “Forbidding to continue proceedings”
  • Issued for SC/HC
  • To inferior court/tribunal forbidding to continue proceedings
  • For the reason of absence/excess of jurisdiction or
  • Usurping a jurisdiction not legally vested or if the jurisdiction contravenes any FUNDAMENTAL RIGHTS.

Mandamus to do the activity to an admin. Or judicial body

Prohibition to inactivate the doing of only a judicial body (Certiorari also) but

Certiorari to quash after order is passed.

Whereas Prohibition is asking not to do while there are proceedings.

Certiorari:-

  • Like prohibition but at a later stage
  • I.E. prohibition at a later stage to an inferior court or tribunal that their jurisdiction is properly exercised or that they do not usurp the. Jurisdiction not legally vested.
Quowarrants:- Means court _______ the legality of the claim of office
  • if the office is a
  • Constitutional or statutory office,
  • Substantive one

*Art 33:
          Power of Parl. To modify the rights conferred by this part in their application for forces etc.,

  • i.e. restricting FUNDAMENTAL Rights to
  • armend forces,
  • police forces,
  • intelligence organizations.
*Art 34: When there is Martial law in force, restricting of FUNDAMENTAL Rights by parl.’s power.
*Suspension of FUNDAMENTAL Rights during Proclamation of Emergency:
To be dealt still more clearly
  • if emergency under Art 352 is issued on grounds of war or but not are med rebellian internal agg.

External aggress than a limitation on Art 19 is imposed i.e. there will be no remedy of Art 19 is violated & even

No right to move courts [Art359]

  • Fundamental Duties:
  • Part IVA, Art 51A
  • 42nd Amdment of 1976 (introd.)
  • II in number.
  • There is no provision in the constitution for enforcement of FUNDAMENTAL DUTIES’s.
  • It serves as a warning to reckless citizens.
  • Exceptions to FUNDAMENTAL Rights:-
Art 31A:- Saving of laws providing for acquistion of estates etc., (Aqrarian reforms)
Art 31B:- Validation of certain Acts and Regulations specified in the IX schedule.
Art 31C:- Saving of laws giving effect to certain directive principles.
                                            [39 (b), (c)]
                   If any legislature of a state makes a law to give effect to all or any of the DPSP’s in Part IV, are abridging the Fundamental Rightsights conferred by Art14 or Art 1 than it cannot be questioned in any court.
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