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Fundamental Rights

Philosophy of the Constitution – Fundamental Rights (FR) + Directive Principles of State Policy (DPSP) + Preamble

• Balances parliamentary sovereignty and judicial supremacy.
• Rights are enforceable against state actions but not against private individuals (legal remedy available).

Article 13

• Constitutional amendment under Article 368 is NOT a law (24th Amendment Act).
• Keshavananda Bharati case – SC ruled that amendments cannot violate the Basic Structure.

Definition of ‘State’ under Article 13 (as per SC):

1. State is the chief funding source.
2. Deep and pervasive state control.
3. Performs an important public function closely related to government work.
4. A government department transferred to a body.
5. Monopoly status protected by the state.

Applicability of Fundamental Rights

• Only for citizens: Articles 15, 16, 19, 29, 30.
• Applicable against individuals: Articles 15(2), 17, 23, 24.

Article 16 – Equality in Public Employment

• No discrimination in state employment based on religion, race, caste, sex, place of birth, descent, or residence.
• Key Amendments:
  • 77th AA (1995) – Reservation in promotions.
  • 81st AA (2000) – Ended 50% ceiling on backlog vacancies.
  • 85th AA (2001) – Allowed consequential seniority.

Article 14 – Equality Before Law & Equal Protection of Laws

Equality Before Law:

1. No special privileges for anyone.
2. Equal subjection to ordinary law.
3. No one is above the law.

Equal Protection of Laws:

1. Equal treatment in similar circumstances.
2. Similar application of laws to similarly placed individuals.
3. Like should be treated alike without discrimination.

Article 18 – Abolition of Titles

• Prohibits Indian citizens from accepting titles from foreign states.
• Balaji Raghavan vs UoI (1996) – SC upheld validity of National Awards (not hereditary titles, cannot be used as prefixes/suffixes).

Article 19 – Six Freedoms (Only Against State, Not for Foreigners/Legal Entities)

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Article 19 – Six Freedoms (Only Against State, Not for Foreigners/Legal Entities)

• Article 19(a) – Freedom of Speech & Expression
  • Includes the right to propagate one’s own views and the views of others.
  • Covers Right to Information (RTI), Right Not to Listen, and Right to Remain Silent.
• Article 19(b) – Right to Assemble Peacefully Without Arms
  • Section 144 CrPC – Magistrate can restrict assembly if it risks:
    • Obstruction, danger to life, health, safety, public tranquility, or riot.
  • Section 141 IPC – Unlawful assembly (5+ persons) if they:
    • Forcefully occupy property.
    • Commit mischief.
    • Resist execution of any law.
• Article 19(d) – Freedom of Movement
  • Covers only internal migration (external migration covered under Article 21).
• Article 19(g) – Right to Occupation, Trade, and Business
  • Covers all means of livelihood, except:
    • State monopoly.
    • Immoral or dangerous professions.
• 44th Amendment Act – Abolished Right to Property (Article 31) (done by Janata Government, not Indira Gandhi).

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Article 20 – Protection in Convictions

1. No Ex-Post-Facto Law (Punishment cannot be imposed retrospectively)
   • Applies only to criminal laws, not civil laws.
   • Applies only to conviction, not trial.
   • Does not provide immunity in preventive detention cases.
2. No Double Jeopardy (Cannot be prosecuted + punished twice for the same offense)
   • Applies only to judicial courts/tribunals, not departmental or administrative actions.
3. No Self-Incrimination
   • Exceptions:
     • Applies only to criminal cases, not civil cases.
     • Compulsory production of material objects allowed.
     • Thumb impressions, specimen signatures, and blood samples can be collected.
     • Compulsory exhibition of body is allowed.

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Article 22 – Protection Against Arbitrary Arrest & Detention

Part 1: Rights in Ordinary Arrests

• Rights include:
  • Being informed of grounds of arrest.
  • Right to consult and be defended by a legal practitioner.
  • Must be produced before a magistrate within 24 hours.
  • Release mandatory if not produced before a magistrate within 24 hours.
• Exceptions:
  • Does not apply to:
    • Arrests under court orders.
    • Civil arrests.
    • Non-payment of income tax.
    • Deportation of aliens.
  • Not applicable to enemy aliens or preventive detention cases.

Part 2: Preventive Detention Laws

• Applies to both citizens and non-citizens.
• Grounds of detention can be kept confidential (if in the public interest).
• Detention beyond 3 months requires approval from a committee of 3 High Court-qualified judges.
• Parliament can extend detention beyond 3 months without approval of an advisory board in certain cases.
• Deepak Bajaj vs SoMHA – SC upheld Habeas Corpus as a great privilege, even in preventive detention cases.

Legislative Authority on Preventive Detention:

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Article 23 – Prohibition of Forced Labor & Human Trafficking

• Surjit Roy vs SoRJ (1983) – Prisoners must be paid fair wages for their work.
• Exceptions:
  • State-imposed compulsory service for public purposes is allowed.
  • However, state cannot discriminate based on religion, race, caste, or class.

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Article 24 – Prohibition of Child Labor

• Child Labour (Prohibition and Regulation) Act, 1986 – Prohibited child employment in certain occupations.
• Amendment (2016) → Renamed as Child & Adolescent Labour (Prohibition and Regulation) Act, 1986:
  1. Completely prohibits employment of children (below 14 years) in all occupations.
  2. Prohibits employment of adolescents (14–18 years) in hazardous occupations.

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Religious Freedoms (Articles 25-28)

Article 25 – Freedom of Religion

• Covers both beliefs and religious rituals.
• Restrictions:
  1. Public order, morality, and health.
  2. Article 25(2)(a) – State can regulate secular activities of religious practices.
  3. Article 25(2)(b) – Hindu religious institutions must be open to all sections of Hindus.

Article 26 – Rights of Religious Groups

1. Establish & maintain institutions for religious & charitable purposes.
2. Manage their own religious affairs.
3. Own & acquire movable and immovable property.
4. Administer property according to law.

Article 27 – Freedom from Taxation for Religion

• State cannot impose taxes to promote any particular religion.
• Taxation for maintaining all religions is allowed.
• Prohibits only taxes, not fees.

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Cultural & Educational Rights (Articles 29-30)

Article 29 – Protection of Cultural & Educational Rights

• Any section of citizens with a distinct language, script, or culture has the right to conserve it.
• No citizen can be denied admission to state-funded or aided institutions based on religion, race, caste, or language.
• SC interpretation: Not restricted to minorities, as “sections of citizens” includes all communities.

Article 30 – Rights of Minorities to Establish & Administer Institutions

• Only applicable to religious & linguistic minorities.
• State cannot discriminate while granting aid to minority institutions.

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Article 32 – Right to Constitutional Remedies

1. Right to move directly to the Supreme Court if fundamental rights are violated.
2. Suspension of Article 32:
   • Can only be done by the Constitution, not Parliament.
   • During a National Emergency (Article 359), the President can suspend enforcement of Fundamental Rights.
3. Violation of Fundamental Rights is a prerequisite for invoking Article 32:
   • It cannot be used to determine the constitutionality of laws unless they directly infringe fundamental rights.

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Writs Under Article 32 & Article 226

Writs Against Private Individuals

• Only Habeas Corpus can be issued against private individuals.

Article 33: Restriction or Abrogation of Fundamental Rights for Armed Forces

1. Only Parliament has the power to restrict or abrogate Fundamental Rights of armed forces and related personnel.
2. “Members of armed forces” include non-combatants.
3. Parliament can exclude court-martial proceedings from writ jurisdiction through law.

Article 34: Martial Law and Indemnity Clause

4. Acts of indemnity (protection to government servants for actions during martial law) cannot be challenged in court on Fundamental Rights grounds.
5. Martial law suspends both the government and ordinary law courts.
6. Supreme Court: Declaration of martial law does not automatically suspend Habeas Corpus.

Article 35: Power of Parliament to Make Laws on Certain Fundamental Rights

• Parliament has exclusive power to make laws for enforcing certain Fundamental Rights, including some matters falling within the State List.

Right to Property (Post 44th CAA, 1978)

• Now a legal right, not a Fundamental Right.
• Protection only against executive action, not against legislative action.
• No guaranteed right to compensation.
• Two exceptions where compensation is applicable:
  1. Article 30: Minority educational institutions (44th CAA, 1978).
  2. Article 31A: Land under personal cultivation within statutory ceiling limits (17th CAA, 1964).

Exceptions to Fundamental Rights

Article 31A:

• Five categories of laws are immune from Articles 14 and 19.
• However, State laws are not immune unless they receive the President’s assent.

Article 31B:

• Any law placed in the 9th Schedule is immunized from challenge.
• Wider than Article 31A since it applies to all laws, not just specific categories.
• I.R. Coelho Case (2007):
  • Laws placed in the 9th Schedule after April 24, 1973, can be challenged if they violate Articles 14, 15, 19, or 21.

Article 31C (25th CAA, 1971):

• Laws implementing Directive Principles under Article 39(b) & (c) cannot be declared void even if they violate Articles 14 and 19.