FUNDAMENTAL RIGHTS

Part III (Art 12-35)

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Why Fundamental?

• They are guaranteed and protected by the constitution which is the fundamental law of land

• They are most essential for the all round development of the individuals.

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SC observation w.r.t. FR

Case Observation on FRs

A. K. Gopalan’50 Paramount

Champakam Dorairajan’51 Sacrosanct

M. S. M. Sharma’59 Rights reserved by the

people

Ujjam Bai’63 Inalienable and inviolable

Keshavanand Bharti’73 Ark of the constitution

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Article 12: Definition of State

• Parliament/State Legislative Assembly

•GoI/GoS

• Local bodies (Panchayats, Municipalities)

•Other authorities➢a body is created by a statute or an executive order

➢it is substantially controlled or financed by the government

➢is used instrumentality by the state to perform its functions

➢it performs sovereign functions of the state

➢it enjoys government monopoly

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

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(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

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Definition of Law – Art 13(3)

• Ordinance

• Order

• Bye law

• Rule

• Regulation

• Notification

• Custom or usages having in the territory of India the force of law

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The Problem

Art 368. Power of Parliament to amend the Constitution and procedure therefor

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

Art 13(2) vs. Art 368(1)

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SC judgments on the matter

Shankari Prasad case 1951

Sajjan Singh case 1965

Golakhnath Case 1967

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Countering the GolakhnathJudgment

• GoI, in order to get around the judgment amended both articles 13 & 368 through 24th Amendment Act 1971.

• Art 368(3): Nothing in Article 13 shall apply to any amendment made under this article.

• Art 13(4): Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality

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vs.

Kesavanand Bharati Case 1973

• A 13-judge bench upheld the constitutional validity of the 24th A/A’71.

• It stated that all parts of Constitution are amendable except the essence of the Constitution which could be termed as BASIC FEATURES of the Constitution.

• It however, refused to categorically define the term and left it for future judgments and interpretations.

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Elements of Basic Structure Doctrine

• Supremacy of the Constitution

• Sovereign, democratic and republican nature of the Indian polity

• Secular character of the Constitution

• Separation of powers between the legislature, the executive and the judiciary

• Federal character of the Constitution

• Unity and integrity of the nation

• Welfare state (socio-economic justice)

• Judicial review

• Freedom and dignity of the individual

• Parliamentary systemIP: Module III

Elements of Basic Structure Doctrine

• Rule of law

• Harmony and balance between Fundamental Rights and Directive Principles

• Principle of equality

• Free and fair elections

• Independence of Judiciary

• Limited power of Parliament to amend the Constitution

• Effective access to justice

• Principles (or essence) underlying fundamental rights.

• Powers of the Supreme Court under Articles 32, 136, 141 and 142

• Powers of the High Courts under Articles 226 and 227IP: Module III

Previous Year Prelims Question

Q. Consider the following statements:

1. The Constitution of India defines its ‘basic structure’ in terms of federalism, secularism, fundamental rights and democracy.

2. The Constitution of India provides for ‘judicial review’ to safeguard the citizens’ liberties and to preserve the ideals on which the Constitution is based.

Which of the statements given above is/are correct? (2020)

a) 1 only

b) 2 only

c) Both 1 and 2

d) Neither 1 nor 2

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Previous Year Prelims Question

Q. Consider the following statements:

1. The Constitution of India defines its ‘basic structure’ in terms of federalism, secularism, fundamental rights and democracy.

2. The Constitution of India provides for ‘judicial review’ to safeguard the citizens’ liberties and to preserve the ideals on which the Constitution is based.

Which of the statements given above is/are correct? (2020)

a) 1 only

b) 2 only

c) Both 1 and 2

d) Neither 1 nor 2

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Six types of rights

• Rights to equality – Article 14- 18

• Right to freedom – Article 19-22

• Right against exploitation – Article 23-24

• Right to freedom of religion – Article 25-28

• Cultural and educational rights – Article 29-30

• Rights to constitutional remedies – Article 32

Note: Right to Property under Art 31 & Art 19(1)(f) were repealed through 44th Amendment act 1978 & Right to Property

is now a legal right under Art 300A.

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Previous Year Prelims Question

Q. Consider the following statements:

1. Article 301 pertains to the Right to Property.

2. Right to Property is a legal right but not a Fundamental Right.

3. Article 300–A was inserted in the Constitution of India by the Congress Government at the Centre by the 44th Constitutional Amendment.

Which of the statements given above is/are correct? (2005)

(a) 2 only

(b) 2 and 3

(c) 1 and 3

(d) 1, 2 and 3

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Previous Year Prelims Question

Q. Consider the following statements:

1. Article 301 pertains to the Right to Property.

2. Right to Property is a legal right but not a Fundamental Right.

3. Article 300–A was inserted in the Constitution of India by the Congress Government at the Centre by the 44th Constitutional Amendment.

Which of the statements given above is/are correct? (2005)

(a) 2 only

(b) 2 and 3

(c) 1 and 3

(d) 1, 2 and 3

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Previous Year Prelims Question

Q. Which one of the following statements is correct? (2017)

(a) Rights are claims of the State against the citizens.

(b) Rights are privileges which are incorporated in the Constitution of a State.

(c) Rights are claims of the citizens against the State.

(d) Rights are privileges of a few citizens against the many.

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Previous Year Prelims Question

Q. Which one of the following statements is correct? (2017)

(a) Rights are claims of the State against the citizens.

(b) Rights are privileges which are incorporated in the Constitution of a State.

(c) Rights are claims of the citizens against the State.

(d) Rights are privileges of a few citizens against the many.

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Right to Equality(Art 14-18)

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Article 14: Equality before Law and Equal Protection of Laws

Equality before law:

• It is a part of Rule of Law.❑There is no special privilege for any person❑All people are subject to ordinary laws by ordinary courts❑No one is above law.❑The concept is borrowed from UK

• Exceptions: Article 361, diplomatic immunity, parliamentary privilege

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Article 14: Equality before Law and Equal Protection of Laws

Equal protection of Laws

• Like should be treated alike.

• People in similar circumstances should be treated similarly

•E.g. – progressive taxation, armed forces are allowed to possess and consume liquor in prohibited areas

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Test for reasonable classification

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Previous Year Prelims Question

Q. Which of the following are regarded as the main features of the “Rule of Law”?

1. Limitation of powers

2. Equality before law

3. People’s responsibility to the Government

4. Liberty and civil rights

Select the correct answer using the code given below: (2018)

(a) 1 and 3 only (b) 2 and 4 only

(c) 1, 2 and 4 only (d) 1, 2, 3 and 4

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Previous Year Prelims Question

Q. Which of the following are regarded as the main features of the “Rule of Law”?

1. Limitation of powers

2. Equality before law

3. People’s responsibility to the Government

4. Liberty and civil rights

Select the correct answer using the code given below: (2018)

(a) 1 and 3 only (b) 2 and 4 only

(c) 1, 2 and 4 only (d) 1, 2, 3 and 4

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Art 15: Prohibition of Discrimination on Certain Grounds

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

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Art 15: Prohibition of Discrimination on Certain Grounds

(2) No citizen shall, on grounds only of religion, race, caste, sex, 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 palaces 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 the general public

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Vertical vs. Horizontal operation

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Art 15: Prohibition of Discrimination on Certain Grounds

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

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Champakam Dorairanjan case 1951

• Supreme Court struck down quota in educational institution on account of violation of Article 29(2).

Art 29(2): No citizen shall be denied admission into any educational institution maintained by the State or receiving aid

out of State funds on grounds only of religion, race, caste, language or any of them.

• However, to get around this judgment, GoI came up with 1st Amendment Act, 1951 and added Article 15(4) to provide special provisions for socially and educationally backward classes or SCs and STs.

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P. A. Inamdar Judgement 2005

• Supreme Court struck down any quota in unaided educational institutions based on the violation of Article 14 and Article 19(1)(g).

Art 19(1)(g): All citizens have right to to practise any profession, or to carry on any occupation, trade or business

• GoI reacted by introducing 93rdAmendment Act, 2005 and added Article 15(5) which stated that state can make special provisions for socially and educationally backward classes, SCs & STs in educational institutions whether aided or unaided other than minority educational institutions.

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Exclusion of Creamy LayerChildren of the following different categories of people belong to

‘creamy layer’ among OBCs and thus will not get the quota benefit:

• Persons holding constitutional posts like President, Vice-President, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG etc.

• Group A & Group B Officers of the All India, Central and State Services & employees holding equivalent posts in PSUs, Banks, Insurance Organisations, Universities etc. and also in private employment.

• Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force and the Paramilitary Forces.

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Exclusion of Creamy LayerChildren of the following different categories of people belong to ‘creamy layer’ among OBCs and thus will not get the quota

benefit:

• Professionals like doctors, lawyers, engineers, artists, authors, consultants etc.

• Persons engaged in trade, business and industry.

• People holding agricultural land above a certain limit and vacant land or buildings in urban areas.

• Persons having gross annual income of more than 8 lakhs.IP: Module III

103rd Amendment Act’19

• It amended Article 15 to additionally permit the government to provide for the advancement of “economically weaker sections”.

• Further, up to 10% of seats may be reserved for such sections for admission in educational institutions.

• Such reservation will not apply to minority educational institutions.

• The central government will notify the “economically weaker sections” of citizens on the basis of family income and other indicators of economic disadvantage.

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Previous Year Prelims Question

Q. Prohibition of discrimination on grounds of religion etc. (Article 15 of the Constitution of India) is a Fundamental Right classifiable under (1995)

(a) the Right to Freedom of Religion

(b) the Right against Exploitation

(c) the Cultural and Educational Rights

(d) the Right to Equality

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Previous Year Prelims Question

Q. Prohibition of discrimination on grounds of religion etc. (Article 15 of the Constitution of India) is a Fundamental Right classifiable under (1995)

(a) the Right to Freedom of Religion

(b) the Right against Exploitation

(c) the Cultural and Educational Rights

(d) the Right to Equality

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Art 16: Equality of Opportunity in 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, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.

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Art 16: Equality of Opportunity in 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 or appointment.

• Public Employment Act, 1957 – enacted by parliament which authorises government to prescribe domicile qualification for certain posts in the state of Andhra Pradesh or under the control of the administration of Himachal Pradesh, Manipur and Tripura.

• This act expired in 1974.IP: Module III

Art 16: Equality of Opportunity in Public Employment

• At present reservation based on residence is provided in ❑Andhra Pradesh and Telangana – Article 371D

❑Karnataka and Hyderabad region – Article 371J

❑Maharashtra and Gujarat – Article 371

❑Schedule VI areas – Assam, Meghalaya, Mizoram and Tripura

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Reservation in Public Employment

Art 16(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

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2nd Backward Classes Commission

• Chairman: B. P. Mandal

• Appointed: 1979

• Submitted: 1980

• Recommendation: Reservation of 27% government jobs for the Other Backward Classes

• The recommendation was implemented by the V P Singh government in the year 1990 by providing reservation of 27% in government job for OBC through Art 16(4)

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Indra Sawhney case in 1992

Supreme Court upheld the validity of 27% reservation with certain conditions.

• Quota should not cross 50%

• Exclude creamy layer (it was identified by the Ram Nandan committee 1993)

• Identification of backward communities/classes subject to judicial review.

• Article 16(4) should be read with Article 335

• Quotas should be confined only to initial recruitment. IP: Module III

Reservation in Promotion

• GoI amended Article 16 and added Art 16(4A) through 77thAmendment Act, 1995 and again through 85thAmendment Act, 2001 and introduced reservation in promotion with consequential seniority for SCs and STs.

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Nagaraj Case 2006

Supreme Court, while stating that State is not bound to make reservation for SC/ST in matter of promotions, laid down the following conditions for providing reservation in promotion:

(1) State has to collect quantifiable data showing backwardness of the class.

(2) Community of the person claiming reservation should be inadequately represented at higher levels.

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Jarnail Singh Judgement 2018

• Supreme Court removed the criteria of collection of quantifiable data of backwardness in relation to SCs and STs.

• It, however, left undisturbed the creamy layer test to SC/STs.

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Mukesh Kumar Judgment 2020

• The Supreme Court has reiterated its earlier decision that reservation is not a fundamental right.

• The Apex court said that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing inadequacy of representation of that class in public services.

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103rd Amendment Act’19

• It added Art 16(6).

• Art 16(6): Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category

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Art 17 - Abolition of Untouchability

Untouchability is abolished and its practice in any form is forbidden The enforcement of any disability

arising out of Untouchability shall be an offence punishable in accordance with law

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Definition

“A practice largely amongst Hindus which looks down upon members of certain classes solely on account of their

birth”

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Untouchability offences Act, 1955

Renamed Protection of Civil Rights Act in 1976

Offences under the act:

• Insulting member of Dalit community (due to historically low status)

• Preaching untouchability

• Justifying untouchability (philosophically, historically, religious ground)

• Denying SC/ST admission to public places, temples, wells, etc

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Untouchability offences Act, 1955

• Punishment – Up to 5 months imprisonment/₹500/- fine or both.

• Disqualification from contesting elections for 6 years + duration of sentence

• Court shall operate on presumption of guilt

• Offence = Cognizable & Non-compoundable

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Prevention of Atrocities against SC/ST Act, 1989

Subhash Mahajan Case, 2018

• No automatic registration of FIR/arrest.

• Compulsory preliminary enquiry

• Take written permission of DSP/SP before arrest.

However, the Government amended law, adding section 18A to the act & status quo ante was restored.

Note: In October’19, a 3-judge bench upheld the amendment to the act setting aside the previous judgment in the SubhashMahajan case.

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Previous Year Prelims QuestionQ. Match List I (Articles of the Constitution of India) with List II (Provision) and select the correct answer using the codes given below the lists: (2004)

Articles Provisions

A. Art 14 1. The State shall not discriminate against any citizen on grounds

only of religion, race, caste, sex, place of birth or any of them

B. Art 15 2. The State shall not deny to any person equality before the law or

the equal protection of laws within the territory of India

C. Art 16 3. ‘Untouchability’ is abolished and its practice in any form is

forbidden

D. Art 17 There shall be equality of opportunity for all citizens in matters

relating to employment or appointment to any office under the StateIP: Module III

A B C D

(a) 2 4 1 3

(b) 3 1 4 2

(c) 2 1 4 3

(d) 3 4 1 2

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A B C D

(a) 2 4 1 3

(b) 3 1 4 2

(c) 2 1 4 3

(d) 3 4 1 2

Answer

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Art 18: Abolition of Titles

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Art 18

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

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

(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 the consent of the President any title from any foreign State.

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

National Civil Awards:

• Started: 1954

4 categories of decorations:

Bharat Ratna exceptional service/performance

of the highest order

Padma Vibhushan exceptional and distinguished

service

Padma Bhushan distinguished service of a high order

Padma Shree distinguished serviceIP: Module III

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Previous Year Prelims Question

Q. Which one of the following categories of Fundamental Rights incorporates protection against untouchability as a form of discrimination? (2020)

(a) Right against Exploitation

(b) Right to Freedom

(c) Right to Constitutional Remedies

(d) Right to Equality

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Previous Year Prelims Question

Q. Which one of the following categories of Fundamental Rights incorporates protection against untouchability as a form of discrimination? (2020)

(a) Right against Exploitation

(b) Right to Freedom

(c) Right to Constitutional Remedies

(d) Right to Equality

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