Fundamental Rights Short Notes

 

 

Fundamental Rights

 

 

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Features of Fundamental Rights:

Availability to Citizens and Foreigners:

• Only for Citizens:
• Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
• Article 16: Equality of opportunity in public employment.
• Article 19: Protection of six freedoms: speech and expression, assembly, association, movement, residence, and profession.
• Article 29: Protection of language, script, and culture of minorities.
• Article 30: Right of minorities to establish and administer educational institutions.
• For Citizens and Foreigners:
• Article 14: Equality before law and equal protection of laws.
• Article 20: Protection in respect of conviction for offences.
• Article 21: Protection of life and personal liberty.
• Article 21A: Right to elementary education.
• Article 22: Protection against arrest and detention in certain cases.
• Article 23: Prohibition of traffic in human beings and forced labor.
• Article 24: Prohibition of employment of children in factories.
• Article 25: Freedom of conscience and free profession, practice, and propagation of religion.
• Article 26: Freedom to manage religious affairs.
• Article 27: Freedom from payment of taxes for promotion of any religion.
• Article 28: Freedom from attending religious instruction or worship in certain educational institutions.

Qualified Nature:

• Not absolute; the state can impose reasonable restrictions.

Protection Against Arbitrary Action:

• Available against the state and, in some cases, private individuals.

Character:

• Some are negative, placing limitations on the state.
• Others are positive, conferring certain privileges.

Justiciability:

• Individuals can move the courts for enforcement if violated.

Supreme Court Defense:

• Defended and guaranteed by the Supreme Court.

Amendability:

• Not sacrosanct or permanent; can be curtailed or repealed by a constitutional amendment without affecting the "basic structure".

Suspension During National Emergency:

• Can be suspended except for Articles 20 and 21.

Automatic Suspension of Article 19:

• Suspended during an emergency on grounds of war or external aggression, not on grounds of armed rebellion.

Enforceability:

• Most are directly enforceable.
• Some require a law made by Parliament for enforcement (Article 35).

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Definition of State (Article 12)

Article 12 Definition:

• Government and Parliament of India: Includes executive and legislative organs of the Union government.
• Government and Legislature of States: Includes executive and legislative organs of state governments.
• Local Authorities: Includes municipalities, panchayats, district boards, improvement trusts, etc.
• Other Authorities: Includes statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
• Supreme Court Interpretation: Private bodies or agencies functioning as instruments of the State are also included under the definition of 'State' in Article 12.

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Judicial Review and Fundamental Rights (Article 13)

Provision:

• Article 13 declares that all laws inconsistent with or derogating from Fundamental Rights shall be void.
• Doctrine of Judicial Review: Explicitly provides for judicial review.

Conferred Powers:

• Supreme Court (Article 32): Can declare a law unconstitutional and invalid.
• High Courts (Article 226): Can also declare a law unconstitutional and invalid.

Implication:

• Ensures protection of Fundamental Rights by enabling courts to invalidate laws that contravene these rights.

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Equality before Law and Equal Protection of Laws (Article 14)

Provision:

• The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India.

Origins:

• 'Equality before law': British origin.
• 'Equal protection of laws': American Constitution.

Judicial Interpretation:

• Article 14 does not apply when equals and unequals are treated differently.
• Forbids class legislation but permits reasonable classification.
• Classification must be based on intelligible differential and substantial distinction.

Rule of Law:

• 'Equality before law' is an element of 'Rule of Law' by A.V. Dicey.
• 'Rule of Law' as embodied in Article 14 is a basic feature of the Constitution and cannot be destroyed by amendment.

Exceptions to Equality:

• Immunity to President and Governors.
• Article 361: President of India and Governors enjoy immunity from criminal and civil proceedings.

Freedom of Press:

• Article 361-A: Protection for publication of true reports of Parliamentary and State Legislature proceedings.

Parliamentary Privileges:

• Immunity for members of Parliament and state legislatures for speeches and votes (Articles 105 and 194).

Article 31-C:

• Laws implementing certain Directive Principles (Article 39(b) and (c)) cannot be challenged on grounds of Article 14 violations.

Diplomatic Immunity:

• Foreign sovereigns, ambassadors, diplomats, and UNO agencies enjoy immunity from criminal and civil proceedings.

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Prohibition of Discrimination on Certain Grounds (Article 15)

First Provision:

• The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth.

Second Provision:

• No citizen shall face discrimination on grounds of religion, race, caste, sex, or place of birth regarding:
• Access to shops, public restaurants, hotels, and places of public entertainment.
• Use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly by State funds or dedicated to public use.
• This provision prohibits discrimination by both the State and private individuals.

Exceptions to the Rule:

(i) Special Provisions for Women and Children:

• State can make special provisions, such as reservation of seats for women in local bodies or free education for children.

(ii) Advancement of Backward Classes:

• State can make special provisions for socially and educationally backward classes or for SCs and STs, such as reservation of seats or fee concessions in public educational institutions.

(iii) Admission to Educational Institutions:

• State can make special provisions for the admission of socially and educationally backward classes or for SCs and STs to educational institutions, including private institutions (aided or unaided) but not minority institutions.

(iv) Economically Weaker Sections:

• State can make special provisions for economically weaker sections (EWS), including up to 10% reservation in educational institutions, which is in addition to existing reservations. This includes private educational institutions (aided or unaided) but excludes minority institutions.
• EWS to be defined by the State based on family income and other economic indicators.

Summary:

• Article 15 ensures non-discrimination by the State and individuals on specified grounds but allows for special provisions to support disadvantaged groups, including women, children, backward classes, SCs, STs, and economically weaker sections.

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Equality of Opportunity in Public Employment (Article 16)

Main Provision:

• Guarantees equality of opportunity for all citizens in matters of employment or appointment to any office under the State.
• Prohibits discrimination on grounds of religion, race, caste, sex, descent, place of birth, or residence.

Exceptions:

(i) Residence Condition:

• Parliament can prescribe residence as a condition for certain employment or appointment in a state, union territory, or local authority.

(ii) Reservation for Backward Classes:

• State can reserve appointments or posts for any backward class that is not adequately represented in state services.
• Reservation in promotions, with consequential seniority, can be provided for SCs and STs not adequately represented in state services.
• Unfilled reserved vacancies from a year can be considered a separate class of vacancies and filled in succeeding years without affecting the 50% reservation ceiling.

(iii) Religious Institutions:

• Law can require the incumbent of an office related to a religious or denominational institution to belong to a particular religion or denomination.

(iv) Economically Weaker Sections (EWS):

• State can reserve up to 10% of appointments or posts for economically weaker sections (EWS) in addition to existing reservations.
• EWS criteria are determined by family income and other economic indicators.

Summary:

• Article 16 ensures equal opportunity in public employment but allows for specific exceptions, including residence requirements, reservations for backward classes, religious qualifications for certain positions, and additional reservations for economically weaker sections.

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Abolition of Untouchability (Article 17)

Main Provision:

• Abolishes untouchability and forbids its practice in any form.
• Enforcement of any disability arising out of untouchability is an offense punishable by law.

Legislative Measures:

• Protection of Civil Rights Act, 1955:
• Originally the Untouchability (Offences) Act, 1955, was renamed and amended in 1976.
• Enlarges scope and strengthens penal provisions.
• Defines civil right as any right accruing by the abolition of untouchability under Article 17.

Judicial Interpretation:

• Mysore High Court: Article 17 addresses the practice of untouchability as it developed historically in India, not in its literal sense.
• Refers to social disabilities imposed on certain classes due to birth in specific castes.
• Does not cover social boycotts or exclusion from religious services.

Supreme Court Ruling:

• People's Union for Democratic Rights case (1982):
• Right under Article 17 is enforceable against private individuals.
• Constitutional obligation of the State to ensure the right is not violated.

Summary:

• Article 17 abolishes untouchability, making its practice a punishable offense. The Protection of Civil Rights Act, 1955, enforces this provision. Judicial interpretations emphasize the historical context of untouchability, and the Supreme Court ensures the State's role in protecting this right against violations by private individuals.

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Abolition of Titles (Article 18)

Main Provisions:

(i) Prohibition by the State:

• The state cannot confer any title on any person, whether a citizen or a foreigner, except for military or academic distinctions.

(ii) Prohibition for Citizens:

• Indian citizens are prohibitsed from accepting titles from any foreign state.

(iii) Foreigners Holding Office:

• Foreigners holding any office of profit or trust under the state cannot accept titles from any foreign state without the President's consent.

(iv) Restrictions on Emoluments:

• No citizen or foreigner holding any office of profit or trust under the state can accept any present, emolument, or office from or under any foreign state without the President's consent.

Judicial Interpretation:

• Balaji Raghavan Case (1995):
• The Supreme Court upheld the validity of National Awards (Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Shri).
• Ruled that these awards do not constitute 'titles' as prohibited by Article 18, which forbids only hereditary titles of nobility.
• Awards should not be used as suffixes or prefixes; doing so would result in forfeiture of the awards.

National Awards:

• Instituted: 1954.
• Discontinued: 1977 by the Janata Party government.
• Revived: 1980 by the Indira Gandhi government.
• Announcement: Annually on Republic Day.

Limitations:

• Total Padma Awards given annually should not exceed 120 (excluding posthumous awards and awards to NRIs/Foreigners/OCIs).
• Maximum of three Bharat Ratna awards in a particular year.

Summary:

• Article 18 abolishes titles, restricting the state and individuals from accepting or conferring titles, except for military or academic distinctions. The Supreme Court has clarified that National Awards do not violate this article. The awards have specific limitations and should not be used as titles in names.

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Right to Freedom - Protection of Six Rights (Article 19)

Main Provisions:

(i) Freedom of Speech and Expression:

• Right to express opinions and ideas.

(ii) Right to Assemble Peaceably and Without Arms:

• Right to hold meetings and gatherings peacefully.

(iii) Right to Form Associations or Unions or Co-operative Societies:

• Right to create groups for common interests.

(iv) Right to Move Freely Throughout the Territory of India:

• Right to travel within the country.

(v) Right to Reside and Settle in Any Part of the Territory of India:

• Right to choose residence anywhere in India.

(vi) Right to Practice Any Profession or to Carry on Any Occupation, Trade, or Business:

• Right to engage in any profession, trade, or business.

Important Points:

• Original Seven Rights: The right to acquire, hold, and dispose of property was deleted by the 44th Amendment Act of 1978.
• State Action vs. Private Individuals: These rights are protected against state action, not private individuals.
• Citizens Only: These rights are available to citizens and shareholders of a company, but not to foreigners or legal entities like companies or corporations.
• Reasonable Restrictions: The state can impose reasonable restrictions on these rights only on grounds mentioned in Article 19, such as security of the state, public order, decency, etc.

Judicial Interpretations:

• Trade Unions: No guaranteed right to effective bargaining, strike, or lock-out (Supreme Court).
• Prostitutes' Movement: Can be restricted on public health and moral grounds (Supreme Court).
• AIDS: Restrictions validated by the Bombay High Court on the movement of persons affected by AIDS.

Dimensions of Freedom of Movement:

• Internal: Right to move within the country (protected by Article 19).
• External: Right to move out and return to the country (protected by Article 21).

Internet Freedom:

• Anuradha Bhasin Case (2020):
• The Supreme Court held that the right to practice any profession or carry on any trade, business, or occupation over the Internet is protected under Article 19(1)(g).
• Restrictions must follow Article 19(6) and be proportional.
• Indefinite suspension of internet services is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

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Protection in Respect of Conviction for Offences (Article 20)

Main provision:

• Article 20 provides protection to individuals against arbitrary and excessive punishment.
• These protections apply to all persons, including citizens, foreigners, and legal entities such as companies or corporations.

Article 20 contains three key provisions:

(i) No Ex-Post-Facto Law:

• 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.
• No person shall be subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.
• This provision only applies to criminal laws and not to civil laws or tax laws.
• It prohibits only conviction or sentence under an ex-post-facto criminal law, not the trial thereof.
• Does not apply in cases of preventive detention or demanding security from a person.

(ii) No Double Jeopardy:

• No person shall be prosecuted and punished for the same offence more than once.
• This protection is only available in proceedings before a court of law or a judicial tribunal, not in departmental or administrative proceedings.

(iii) No Self-Incrimination:

• No person accused of any offence shall be compelled to be a witness against himself/herself.
• This extends to both oral and documentary evidence but does not include:
• Compulsory production of material objects.
• Compulsion to give thumb impression, specimen signature, and blood specimens.
• Compulsory exhibition of the body.
• This protection applies only to criminal proceedings, not civil or non-criminal proceedings.

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Protection of Life and Personal Liberty (Article 21)

Main provision:

• No person shall be deprived of life or personal liberty except according to the procedure established by law.
• This applies to both citizens and non-citizens.

Key Judicial Interpretations:

(i) Gopalan Case (1950):

• Narrow interpretation of Article 21.
• Protection under Article 21 is available only against arbitrary executive action, not legislative action.
• The state can deprive life and personal liberty if based on a law, as per "procedure established by law."

(ii) Maneka Case (1978):

• Overruled the Gopalan case, taking a wider interpretation.
• Right to life and personal liberty can be deprived by law only if the procedure is reasonable, fair, and just.
• Introduced the concept of "due process of law" similar to the American Constitution.
• Protection under Article 21 is available against arbitrary executive and legislative action.
• Right to life includes living with human dignity and all aspects making life meaningful.
• "Personal Liberty" has a wide scope, covering various rights constituting personal liberties.

Conclusion:

• Article 21 ensures protection against deprivation of life and personal liberty except through fair, just, and reasonable legal procedures. It encompasses a broad range of rights ensuring a dignified and meaningful life.

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Right to Education (Article 21A)

Main provision:

• The State shall provide free and compulsory education to all children aged six to fourteen years, as determined by the State.

Introduction:

• Added by the 86th Constitutional Amendment Act, 2002.
• Makes elementary education a Fundamental Right.

Historical Context:

• Before this amendment, Article 45 in Part IV directed free and compulsory education for children but was non-enforceable as it was a directive principle.

Judicial Recognition:

• Unni Krishnan Case (1993): Supreme Court recognized the Fundamental Right to primary education under the right to life (Article 21).
• It mandated free education for children until age 14.

Legislation:

• Right of Children to Free and Compulsory Education (RTE) Act, 2009:
• Enacted to implement Article 21A.
• Ensures full-time elementary education of satisfactory and equitable quality in formal schools meeting certain norms and standards.

Implementation:

• Both the 86th Constitutional Amendment and the RTE Act came into force on April 1, 2010.

Conclusion:

• Article 21A guarantees the right to free and compulsory education for children aged six to fourteen, enforceable by law, thus elevating the importance of elementary education as a fundamental aspect of the right to life and personal liberty.

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Protection Against Arrest and Detention (Article 22)

Main provision:

• Article 22 provides protection to persons arrested or detained, covering both punitive and preventive detention.
• Punitive Detention: Detention after trial and conviction for punishment.
• Preventive Detention: Detention without trial to prevent future offenses, based on suspicion.

Rights under Ordinary Law (First Part of Article 22):

• Right to be informed of grounds of arrest.
• Right to consult and be defended by a legal practitioner.
• Right to be produced before a magistrate within 24 hours (excluding travel time).
• Right to be released after 24 hours unless the magistrate authorizes further detention.
• These safeguards are not available to enemy aliens or persons detained under preventive detention laws.
• Supreme Court Ruling: These rights do not apply to arrests under court orders, civil arrests, arrests for non-payment of taxes, or deportation of aliens; they apply only to criminal or quasi-criminal acts or activities against public interest.

Rights under Preventive Detention Law (Second Part of Article 22):

• Detention cannot exceed three months unless an advisory board (comprising High Court judges) approves.
• Grounds of detention must be communicated, except facts against public interest.
• Opportunity to make a representation against the detention order.

Parliamentary Authority:

• Can prescribe conditions and classes for detention beyond three months without advisory board approval.
• Can set maximum detention periods under preventive laws.
• Can establish advisory board procedures.

Legislative Power Division:

• Parliament: Exclusive power over preventive detention laws related to defense, foreign affairs, and national security.
• Parliament and State Legislatures: Concurrent power over preventive detention for state security, public order, and essential supplies and services.

Noteworthy:

• India is unique in integrating preventive detention into its Constitution compared to other democratic countries.

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Prohibition of Traffic in Human Beings and Forced Labour (Article 23)

Article 23 prohibits:

• Traffic in human beings.
• Begar (forced labour).
• Other similar forms of forced labour, such as bonded labour.

Key Points:

• Applicability: This right is available to both citizens and non-citizens.
• Protection: Protects individuals against both the State and private persons.
• Punishment: Contravention of this provision is an offense punishable by law.

Exception:

• Compulsory Service for Public Purposes: The State can impose compulsory services like military or social service without pay.
• Non-Discrimination: In imposing such compulsory services, the State cannot discriminate based on religion, race, caste, or class.

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Prohibition of Employment of Children in Factories, etc. (Article 24)

Article 24 prohibits:

• Employment of children below 14 years in Factories; Mines; Hazardous activities (e.g., construction work, railways)

Exceptions:

• Employment in harmless or innocent work is not prohibited.

Supreme Court Directions (1996):

• Establishment of Child Labour Rehabilitation Welfare Fund.
• Offending employers to deposit ₹20,000 for each child employed.
• Directions for improvement in education, health, and nutrition of children.

Legislation:

• Commissions for Protection of Child Rights Act, 2005:
• Establishes National and State Commissions for Protection of Child Rights.
• Sets up Children’s Courts for speedy trial of offences against children.

Government Ban (2006):

• Bans employment of children as domestic servants or in business establishments (e.g., hotels, shops).
• Employers of children below 14 years face prosecution and penalties.

Child Labour (Prohibition and Regulation) Amendment Act, 2016:

• Amended the Child Labour (Prohibition and Regulation) Act 1986 Act.

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Freedom of Conscience and Free Profession, Practice and Propagation of Religion (Article 25)

Key Provisions of Article 25:

• All persons are entitled to:
• Freedom of conscience: Inner freedom to shape one's relation with God or creatures.
• Right to profess: Openly and freely declare religious beliefs and faith.
• Right to practice: Perform religious worship, rituals, ceremonies, and exhibit beliefs.
• Right to propagate: Transmit and disseminate religious beliefs; does not include the right to convert others forcibly.

Restrictions:

• Subject to public order, morality, health, and other fundamental rights.
• State's Role:
• Can regulate or restrict economic, financial, political, or other secular activities associated with religious practices.
• Can provide for social welfare and reform.
• Can ensure Hindu religious institutions of a public character are open to all classes and sections of Hindus.

Others elements:

• Wearing and carrying "kirpans" is included in the profession of the Sikh religion.
• "Hindus" include Sikhs, Jains, and Buddhists.

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Freedom to Manage Religious Affairs (Article 26)

Key Provisions of Article 26:

Religious denominations or any section thereof have the following rights:

• Right to establish and maintain institutions for religious and charitable purposes.
• Right to manage their own affairs in matters of religion.
• Right to own and acquire movable and immovable property.
• Right to administer such property in accordance with the law.

Distinction from Article 25:

• Article 25: Guarantees individual rights to freedom of religion.
• Article 26: Guarantees collective rights of religious denominations.

Conditions for a Religious Denomination:

• Collection of individuals: With a system of beliefs conducive to their spiritual well-being.
• Common organization.
• Distinctive name.

Supreme Court Rulings:

• Ramakrishna Mission and Ananda Marga: Recognized as religious denominations.
• Aurobindo Society: Not recognized as a religious denomination.

Restrictions:

• Subject to public order, morality, and health. Not subject to other Fundamental Rights provisions.

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Freedom from Taxation for the Promotion of a Religion (Article 27)

Key Provisions of Article 27:

• No person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
• The state should not use public money collected through taxes for promoting or maintaining any particular religion.
• Ensures that the State does not favor, patronize, or support one religion over others.
• Taxes can be used for the promotion or maintenance of all religions equally.

The distinction between Tax and Fee:

• Tax: Prohibited for the promotion or maintenance of a particular religion.
• Fee: Allowed for controlling secular administration of religious institutions, providing special services, safety measures, or meeting regulation expenditures.
• Example: Fees on pilgrims for special services or safety.
• Example: Fees on religious endowments for regulatory expenses.

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Freedom from Attending Religious Instruction (Article 28)

Key Provisions of Article 28:

• No religious instruction in educational institutions wholly maintained out of State funds.
• Exception: Educational institutions administered by the State but established under an endowment or trust requiring religious instruction.

Consent Requirement:

• No person attending a State-recognized or State-aided institution shall be required to attend religious instruction or worship without their consent.
• For minors, guardian consent is needed.

Types of Educational Institutions and Religious Instruction:

• Institutions wholly maintained by the State: Religious instruction is completely prohibited.
• Institutions administered by the State but established under any endowment or trust: Religious instruction is permitted.
• Institutions recognized by the State: Religious instruction is permitted on a voluntary basis.
• Institutions receiving aid from the State: Religious instruction is permitted on a voluntary basis.

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Protection of Interests of Minorities (Article 29)

Key Provisions of Article 29:

Conservation of Language, Script, or Culture:

• Any section of citizens with a distinct language, script, or culture has the right to conserve it.

Non-Discrimination in Educational Institutions:

• No citizen shall be denied admission into any State-maintained or State-aided educational institution on grounds of religion, race, caste, or language.

Scope and Interpretation:

• Applicable to All Citizens: Article 29 protects both religious and linguistic minorities but is not restricted to them; it applies to any section of citizens.

Supreme Court Rulings:

• The term "section of citizens" includes both minorities and the majority.
• The right to conserve a language includes the right to agitate for its protection, meaning political speeches or promises for language conservation do not constitute corrupt practices under the Representation of the People Act, 1951.

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Right of Minorities to Establish and Administer Educational Institutions (Article 30)

Key Provisions of Article 30:

(i) Establishment and Administration:

• Minorities (religious or linguistic) have the right to establish and administer educational institutions of their choice.

(ii) Compensation for Property Acquisition:

• State-fixed compensation for compulsory acquisition of minority educational institution property should not restrict their rights (added by the 44th Amendment Act of 1978).

(iii) Non-Discrimination in Aid:

• The State shall not discriminate against minority-managed educational institutions in granting aid.

Scope and Interpretation:

• Exclusive to Minorities: Article 30 rights are specifically for minorities and do not extend to all citizens (unlike Article 29).
• Right to Impart Education: Includes the right to educate children in their own language.

Types of Minority Educational Institutions:

• Institutions seeking both recognition and aid from the State.
• Institutions seeking only recognition from the State.
• Institutions neither seeking recognition nor aid from the State.

Regulation and Administration:

• State Regulation: Institutions seeking recognition and/or aid are subject to state regulations on syllabus, academic standards, discipline, sanitation, employment of teaching staff, etc.
• Freedom from State Control: Institutions not seeking recognition or aid are free to manage their affairs but must comply with general laws (contract, labour, industrial, tax, and economic regulations).

Key interpretations:

• The right to establish and administer educational institutions is not absolute and does not include the right to mismanage.
• Unaided Minority Institutions: Freedom to appoint teachers/lecturers through any rational selection procedure, subject to state-prescribed eligibility conditions.
• State Aid: The nature and character of minority institutions remain unchanged by state aid. Conditions for aid must ensure proper utilization without diluting Article 30(1) rights.

Supreme Court Judgement (Malankara Syrian Catholic College Case, 2006):

• Summarized the general principles relating to the establishment and administration of minority educational institutions.

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Right to Constitutional Remedies (Article 32)

Significance:

• Article 32 provides the right to remedies for the enforcement of Fundamental Rights.
• Dr. B.R. Ambedkar referred to it as the most important article, essential for making Fundamental Rights real.
• Recognized by the Supreme Court as a basic feature of the Constitution, hence it cannot be amended.

Provisions of Article 32:

• Right to Move Supreme Court:
• Guaranteed right to move the Supreme Court for the enforcement of Fundamental Rights.
• Power to Issue Writs:
• The Supreme Court can issue directions, orders, or writs (like habeas corpus, mandamus, prohibition, quo warranto, and certiorari) for enforcing Fundamental Rights.
• Empowerment of Other Courts:
• Parliament can authorize any other court (excluding High Courts) to issue directions, orders, and writs.
• Non-Suspension of Right:
• The right to move the Supreme Court cannot be suspended, except as provided by the Constitution (e.g., during a state of emergency).

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Writs - Scope

Introduction:

• The Supreme Court (Article 32) and high courts (Article 226) can issue five types of writs: habeas corpus, mandamus, prohibition, certiorari, and quo warranto.
• These writs are derived from British law ('prerogative writs').

Differences in Writ Jurisdiction:

(i) Scope of Enforcement:

• Supreme Court: Can issue writs only for Fundamental Rights.
• High Courts: Can issue writs for Fundamental Rights and other legal rights.

(ii) Territorial Jurisdiction:

• Supreme Court: Can issue writs across the entire country.
• High Courts: Limited to their territorial jurisdiction or if the cause of action arises within it.

(iii) Nature of Remedy:

• Supreme Court: Article 32 remedy is a Fundamental Right; cannot refuse.
• High Courts: Article 226 remedy is discretionary; can refuse.

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Types of Writs:

Habeas Corpus:

• Meaning: “To have the body of”.
• Purpose: To release a person from illegal detention.
• Issued Against: Public authorities and private individuals.
• Not Issued If: Detention is lawful, for contempt of legislature/court, by a competent court, outside jurisdiction.

Mandamus:

• Meaning: “We command”.
• Purpose: To command a public official to perform a duty.
• Issued Against: Public officials, bodies, corporations, inferior courts, tribunals, and government.
• Not Issued If: Against private individuals, discretionary duties, contractual obligations, President, Governors, or Chief Justice in a judicial capacity.

Prohibition:

• Meaning: “To forbid”.
• Purpose: To prevent a lower court/tribunal from exceeding jurisdiction.
• Issued Against: Judicial and quasi-judicial authorities.
• Not Issued Against: Administrative authorities, legislative bodies, private individuals.
• Timing: Issued before the final order is passed.

Certiorari:

• Meaning: “To be certified” or “To be informed”.
• Purpose: To quash the order of a lower court/tribunal.
• Issued On: Grounds of excess/lack of jurisdiction.
• Timing: Issued After the final order is passed.
• Issued Against: Judicial and quasi-judicial authorities.
• Not Issued Against: Administrative authorities, legislative bodies, private individuals.

Quo Warranto:

• Meaning: “By what authority or warrant”.
• Purpose: To challenge the legality of a person’s claim to a public office.
• Issued For: Substantive public offices of a permanent character.
• Can Be Sought By: Any public-minded person, not just the aggrieved.
• Not Issued Against: Ministerial office or private office.

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Armed Forces and Fundamental Rights (Article 33)

Main Provision:

• Empowers Parliament: To restrict or abrogate fundamental rights for armed forces, paramilitary forces, police forces, intelligence agencies, and similar forces.
• Objective: To ensure proper discharge of duties and maintain discipline.

Parliament's Exclusive Power:

• Only Parliament can make laws under Article 33, not state legislatures.
• Laws made by Parliament under Article 33 cannot be challenged in court for contravening fundamental rights.

Scope of Restrictions:

• Restrictions can be imposed on:
• Freedom of speech
• Right to form associations
• Membership in trade unions or political associations
• Communication with the press
• Attendance at public meetings or demonstrations

Court Martial Jurisdiction:

• Parliamentary laws under Article 33 can exclude court martial from the writ jurisdiction of the Supreme Court and high courts concerning the enforcement of fundamental rights.

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Martial Law and Fundamental Rights (Article 34)

Main Provisions:

• Empowers Parliament: To restrict fundamental rights while martial law is in force.
• Indemnity Provision: Parliament can indemnify government servants or others for acts done to maintain or restore order under martial law.
• Validation Power: Parliament can validate sentences, punishments, forfeitures, or other acts done under martial law.
• Non-Challengeable: Indemnity laws made by Parliament cannot be challenged in court for contravening fundamental rights.

Martial Law:

• Concept: Borrowed from English common law; means 'military rule'.
• Circumstances: Imposed under extraordinary situations like war, invasion, insurrection, rebellion, riot, or violent resistance to law.
• Justification: To maintain or restore order by repelling force with force.

Powers During Martial Law:

• Military authorities have abnormal powers.
• Can impose restrictions and regulations on civilians.
• Can punish civilians, including the death penalty.

Supreme Court Ruling:

• Declaration of martial law does not automatically suspend the writ of habeas corpus.

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Article 35

Main Provision:

• Article 35 vests the power to make laws affecting specified fundamental rights solely in the Parliament, not in state legislatures.

Provisions under Article 35:

• Parliament's Exclusive Power: Only the Parliament can make laws regarding below.
• Residence Requirements (Article 16):
• Conditions for employment or appointments in states, union territories, local authorities, or other authorities.
• Empowering Courts (Article 32):
• Allowing courts other than the Supreme Court and High Courts to issue orders for enforcing fundamental rights.
• Armed Forces, Police (Article 33):
• Restricting/abrogating fundamental rights for members of armed forces, police, etc.
• Martial Law Indemnity (Article 34):
• Indemnifying government servants or others for acts during martial law.

Punishment for Offences under Fundamental Rights:

• Parliament can prescribe punishment for offences such as:
• Untouchability (Article 17)
• Human Trafficking and Forced Labour (Article 23)

Continuity of Existing Laws:

• Laws in force at the Constitution's commencement on these matters continue until altered, repealed, or amended by Parliament.

Note:

• Article 35 extends Parliament's competence to legislate on these matters, even if they fall within the state legislatures' domain (State List).

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Right to Property

Key Point:

• The 44th Amendment Act of 1978 changed the status of the right to property from a fundamental right to a legal or constitutional right.

Major Changes by the 44th Amendment Act, 1978:

• Abolished Fundamental Right to Property.
• Repealed: Article 19(1)(f) and Article 31 from Part III.
• New Provision: Inserted Article 300A in Part XII - "No person shall be deprived of his/her property except by authority of law."

Current Status:

• Right to Property:
• Now a legal right or constitutional right, not a fundamental right.

Compensation Provisions for Property Acquisition:

Despite the abolition, Part III still ensures compensation in two cases:

• (i) Minority Educational Institutions (Article 30):
• Compensation must be paid when the state acquires property belonging to minority educational institutions.
• Above clause Added by: 44th Amendment Act, 1978.
• (ii) Personal Cultivation Land (Article 31A):
• Compensation must be paid when the state acquires land under personal cultivation within statutory ceiling limits.
• Above clause Added by: 17th Amendment Act, 1964.

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Article 31A

Key Point:

• Article 31A protects certain categories of laws from being challenged on the grounds of violating Article 14 (equality before law) and Article 19 (protection of six rights including speech, assembly, movement).

Five Categories of Laws Protected by Article 31A:

• (i) Acquisition of Estates:
• Laws related to the acquisition of estates and related rights by the State.
• (ii) State Management of Properties:
• Laws for taking over the management of properties by the State.
• (iii) Amalgamation of Corporations:
• Laws concerning the amalgamation of corporations.
• (iv) Corporation Rights:
• Laws modifying or extinguishing rights of directors or shareholders of corporations.
• (v) Mining Leases:
• Laws modifying or extinguishing mining leases.

Judicial Review:

• Condition: A state law is not protected from judicial review under Article 31A unless it has been reserved for the President's consideration and has received his/her assent.

Compensation Provision:

• Land Acquisition: Article 31A ensures compensation at market value when the state acquires land under personal cultivation within statutory ceiling limits.

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Article 31B

Key Point:

• Article 31B protects laws included in the Ninth Schedule from being challenged on the grounds of contravention of any fundamental rights, providing broader immunity than Article 31A.

Scope of Article 31B:

• Immunity: Any law in the Ninth Schedule is immune from all fundamental rights challenges, regardless of the categories specified in Article 31A.

Supreme Court Judgements:

• Kesavananda Bharati Case (1973):
• Ruling: Acts and regulations in the Ninth Schedule can be challenged if they violate the basic structure of the Constitution.
• Waman Rao Case (1980):
• Clarification: Laws added to the Ninth Schedule after April 24, 1973, are valid only if they do not damage the basic structure of the Constitution.
• I.R. Coelho Case (2007):
• Reaffirmation: Judicial review is a basic feature of the Constitution and cannot be removed by placing a law in the Ninth Schedule.
• Open to Challenge: Laws in the Ninth Schedule after April 24, 1973, can be challenged if they violate fundamental rights under Articles 14, 15, 19, and 21 or the basic structure of the Constitution.

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Article 31C

Key Point:

• Article 31C was inserted by the 25th Amendment Act of 1971 to protect laws implementing certain directive principles from being invalidated for violating fundamental rights.

Provisions of Article 31C:

• (i) Protection from Invalidity (Provision a):
• Scope: Laws aiming to implement the socialistic directive principles specified in Article 39(b) (distribution of material resources) and 39(c) (prevention of concentration of wealth) cannot be voided for violating Article 14 (equality before law) or Article 19 (protection of six rights).
• (ii) Exclusion from Judicial Review (Provision b):
• Scope: Laws declaring they are for implementing such policies cannot be questioned in court on the grounds that they do not give effect to such policy.

Supreme Court Ruling (Kesavananda Bharati Case, 1973):

• Declared provision (b) unconstitutional and invalid as judicial review is a basic feature of the Constitution and cannot be removed.
• Provision (a) Status: Upheld as constitutional and valid.

Condition for State Law Immunity:

• Requirement: A state law is not immune from judicial review under Article 31C unless reserved for the President's consideration and received his/her assent.

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Reservation for OBCs in Educational Institutions

Constitutional Provision:

• Article 15: Allows the state to make special provisions for the advancement of socially and educationally backward classes, SCs, and STs in educational institutions. It included private educational institutions (except minority institutions).
• Amendment: It was added by the 93rd Amendment Act, 2005.

Legislative Action:

• Act: Central Educational Institutions (Reservation in Admission) Act, 2006.
• Quota: 27% reservation for OBCs in central higher educational institutions, including IITs and IIMs.

Judicial Review:

• Supreme Court (April 2008): Upheld the validity of the Amendment Act and the OBC Quota Act.
• Exclusion: Directed exclusion of 'Creamy Layer' (advanced sections) among OBCs in implementing the law.

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Reservation for EWS in Educational Institutions

Constitutional Provision:

• Article 15: Empowers the state to make special provisions for the advancement of economically weaker sections (EWS).
• Amendment: 103rd Amendment Act, 2019.

Government Action:

• Order (2019): Central government provided 10% reservation to EWS in admission to educational institutions.

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Mandal Commission

Establishment:

• Year: 1979
• Government: Morarji Desai Government
• Chairman: B.P. Mandal, MP
• Constitutional Basis: Article 340
• Purpose: Investigate conditions of socially and educationally backward classes and suggest measures for advancement

Recommendations (1980):

• Reservation: 27% reservation in government jobs for OBCs
• Total Reservation: Combined with SCs and STs, total reservation should be 50%

Narasimha Rao Government Changes (1991):

• Preference: Economic criteria for poorer sections among OBCs within the 27% quota
• Additional Reservation: 10% jobs for other economically backward sections not covered by existing reservations (later rejected)

Supreme Court Verdict (Indra Sawhney Case, 1992):

• Article 16(4): Examined scope and extent for job reservations for backward classes
• Outcome: Upheld 27% reservation for OBCs with conditions, rejected additional 10% reservation for other economically backward sections

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Reservation for EWS in Public Employment

Constitutional Provision:

• Article 16: Permits the state to make provisions for up to 10% reservation in appointments or posts for economically weaker sections (EWS).
• Amendment: 103rd Amendment Act, 2019.

Government Action:

• Order (2019): Central government provided 10% reservation for EWS in civil posts and services in the Government of India.

Eligibility:

• Exclusion: Applies to persons belonging to EWS who are not covered under existing reservations for SCs, STs, and OBCs.

Reference: Indian Polity by M Laxmikanth

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