Fundamental Rights Notes for UPSC - Article 12-19
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Fundamental Rights Notes for UPSC - Article 12-19

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Fundamental Rights Notes for UPSC - Article 12-19

The word Fundamental Rights itself speaks out its importance. The Fundamental Rights are such a basic and important set of rights that everyone should have knowledge about them. But if you are a Civil Services Aspirant then it is a must for you to have in-depth knowledge and understanding of the Fundamental Rights in the Indian Constitution. Each and every Civil Services Exam like UPSC, HCS, RAS, UPPSC, and all the other State Civil Services Exams ask a number of questions from this topic. In the present article, you will find the details of Fundamental Rights from Articles 12 to 19.

Fundamental Rights Notes for UPSC - Article 12-19

Rights

    • Rights given under Constitution are known as Constitutional Rights
    • Constitutional Rights are further divided into Fundamental Rights and Other Constitutional Rights.
    • Art. 12 to 35 in Part III (known as Magna Carta of India) of the Constitution deals with Fundamental Rights. They are borrowed from the Constitution of the USA ie. Bill of Rights. 
    • Fundamental Rights are guaranteed and protected by the Constitution and are essential for the all-round development of an individual.
    • Other Constitutional Rights (also known as legal or non-fundamental rights) are the rights specified outside Part III of the Constitution. Examples:
      • Art. 265 - Taxes not to be imposed without the authority of law.
      • Art. 300A - Persons not to be deprived of property without the authority of law.
      • Art. 301, Freedom of trade, commerce, and intercourse.
      • Art. 325 dealing with Universal Suffrage.
      • Art. 326 dealing with Right to Adult Suffrage.
  • In case of violation of a Fundamental Right, the aggrieved party can directly go to the Supreme Court for its enforcement under Art. 32. But, in case of violation of other constitutional rights, the aggrieved party can go to High Court under Art. 226 (writ jurisdiction of High Court) and then by way of appeal can go to Supreme Court.

      Note: ‘Magna Carta’ is the Charter of Rights issued by King John of England in 1215 under pressure from barons. This is the first written document relating to the Fundamental rights of citizens.

  • Rights that are not specified in the Constitution are known as Non-Constitutional Rights
  • Example includes:
    • Labour Rights
    • Transfer of Property
    • Right to Inheritance
    • Right to Marriage
    • Right to adopt children
    • Right to free legal aid
    • Right to seek information

 

Features of Fundamental Rights

  • Some of the Fundamental Rights are available to citizens only while others are available to all.
  • They are not absolute but qualified which means that the State can impose reasonable restrictions on them.
  • They are enjoyed by the individuals and are enforceable against the State except for Right against untouchability, Right to Freedom of Speech, Right against exploitation of women which are enforceable against both the State and individuals.
  • Some of them are negative in character placing limitations on the authority of the State while some are positive, giving special privileges to people.
  • They are defended and guaranteed by the Supreme Court. The aggrieved party can directly go to the Supreme Court in case of violation of their Fundamental Rights.
  • The Fundamental Rights can be amended provided that it does not affect the ‘Basic Structure of the Constitution.’

 

Definition of State

Art. 12:

According to it, the State includes:

  1. Government and Parliament of India, that is, executive and legislative organs of the Union Government.
  2. Government and Legislature of states, that is, executive and legislative organs of State Government.
  3. All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.
  4. All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
  • The action of various agencies of State can be challenged in the Supreme Court in case of violation of Fundamental Rights.
  • According to Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’.

 

Laws Inconsistent with Fundamental Rights

Art. 13:

  • Art. 13 declares that all laws that are inconsistent with or in derogation of any of the Fundamental rights shall be void.
  •  It provides for the doctrine of Judicial review.
  • Power of judicial review is implicit under the Indian Constitution and it is traceable under Writ Jurisdiction of Supreme Court and High Court gave under Art. 32 and Art. 226 respectively.

The term ‘law’ in Art. 13 includes:

  1. Permanent laws enacted by the Parliament or the State legislatures.
  2. Temporary laws like ordinances issued by the President of the State Governors.
  3. Statutory instruments of delegated legislation like order, bye-law, rule, regulation, or notification.
  4. Non-legislative sources of law, like customs
  • Art. 13 declares that a constitutional amendment is not a law and hence cannot be challenged.
  • But in the Kesavananda Bharati case (1973), it was established that a Constitutional amendment can be challenged, if it violates a Fundamental Right that forms a ‘Basic Structure’ of the Constitution and hence, can be declared void.

Read Also: Emergency Provisions Notes for UPSC

 

Fundamental Rights

  1. Right to equality (Art. 14-18)
  2. Right to freedom (Art. 19-22)
  3. Right against exploitation (Art. 23-24)
  4. Right to freedom of religion (Art. 25-28)
  5. Cultural and educational rights (Art. 29-30)
  6. Right to constitutional remedies (Art. 32)

     Note: Right to property was deleted from the list of Fundamental Rights by 44th Amendment Act, 1978. It is made a legal right under Art. 300-A in Part XII of the Constitution.

  • Fundamental Rights under Art. 15, Art. 16, Art. 19, Art. 29, and Art. 30 are available only to citizens of India.
  • Fundamental Rights under Art. 14, Art. 20, Art. 21, Art. 21A, Art. 22-28 are available to both citizens and foreigners (except enemy aliens)

 

Right to Equality (Article 14-18)

  1. Equality before the law and equal protection of laws (Art. 14).
  2. Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth (Art. 15).
  3. Equality of opportunity in matters of public employment (Art. 16).
  4. Abolition of untouchability and prohibition of its practice (Art. 17).
  5. Abolition of titles except for military and academic (Art. 18).

 

EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS

According to Art. 14,

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

  • This provision confers right on all persons whether citizens or foreigners.
  • ‘Person’ also includes legal persons, that is, statutory corporations, companies, registered societies, or any other type of legal person.

Equality before Law:

  • This concept is of British origin.
  • Equality before the law is a negative concept as it does not allow the State to discriminate between individuals, on an arbitrary basis. It means the absence of special privilege due to birth, creed, or the like, in favor of any individual and the equal subjection of all classes to the ordinary law.
  • No man is above the law and every person irrespective of his status is subject to the same ordinary jurisdiction of the courts.
  • It is an element of the concept of ‘Rule of Law’, elaborated by A.V. Dicey. 

Rule of Law:

According to A.V. Dicey, the Rule of Law has the following 3 elements:

  • Absence of arbitrary power, that is, no man can be punished except for a breach of law, and justice should be done through the principles of law.
  • Equality before the law means no one is above law and every person is equally subjected to the ordinary law of the land as administered by the ordinary courts.
  1. The rights of people must flow from the customs and traditions. The constitution is not the source but the consequence of the rights of individuals. Individual rights are enjoyed even before the emergence of the Constitution and the Constitution only consolidates and codifies the same for legal protection. 
  • The first and second elements (not the third) are applicable to the Indian Constitution. In India, Constitution is the source of individual rights.
  • ‘Rule of Law’ is a basic feature of the Constitution and hence cannot be amended.

 

Exceptions to Equality:

  • The President and the Governor of States enjoy the following immunities (Art. 361):
  • They are not answerable to any court for the exercise and performance of the powers and duties of his office.
  • No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.
  • No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office. 
  • d. No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after he entered upon his office until the expiration of 2 months next after notice has been delivered to him.
  • 2. No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a true report of any proceedings of either House of Parliament or either House of the Legislature of a State. (Art. 361-A)
  • 3. No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in  Parliament or any committee thereof. ( Art. 105)
  • 4. No member of the Legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof. ( Art. 194)
  • 5. Art. 31-C provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Art. 39 cannot be challenged on the ground that they are violative of Art. 14.
  1. The foreign sovereigns (rulers), ambassadors, and diplomats enjoy immunity from criminal and civil proceedings.
  2. The UNO and its agencies enjoy diplomatic immunity.

 

Equal protection of the laws:

  • This concept has been taken from American Constitution.
  • It is a positive concept which implies the right to equality of treatment in equal circumstances. It means that among equals, the law should be equal and equally administered that equals should be treated alike, both in the privileges conferred and liabilities imposed.
  • Equal law should be applied to the persons who are similarly placed and there should be no discrimination between one person and another.
  • This provision allows the categorization of people, provided there is a ‘reasonable’ basis of classification. It allows differential treatment of people. For example, classification of people based on their status and educational backwardness.
  • It allows for providing ‘affirmative action’ to weaker sections of society or creating differential tax rates for different income categories of people.

Read Also: MCQs on Indian Constitution

 

PROHIBITION OF DISCRIMINATION ON CERTAIN GROUNDS

Art. 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

  • Fundamental Rights gave under Art. 15 is available only to citizens.

Art. 15(1):

  • Art. 15(1) prohibits the State from discriminating against the citizens only on the grounds of religion, race, caste, sex, descent, place of birth, or any of them. It is enforceable only against the State and not an individual.
  • ‘Discrimination’ means that no person of a particular religion, caste, etc. shall be treated unfavorably by the State when compared with persons of any other religion, caste, etc. 
  • The word ‘only’ indicates that State can make discriminate on other grounds such as residence (not the place of birth). The state can disallow women to enter riskier occupations like military or heavy industries.

Art. 15(2):

  • Art. 15(2) states that no citizen shall be denied access to public places such as cinema halls, theatres, parks, etc. on grounds specified in Art. 15(1).
  • Art. 15(1) and Art. 15(2) confers Fundamental Rights against discrimination.
  • Art. 15(3), 15(4), and 15(5) confer power on State to make special provisions in favor of certain categories of citizens including backward classes of citizens and women.

Art. 15(3):

  • Art. 15(3) confers power on State to make special provisions in favor of women and children because they are placed in vulnerable positions in society. 
  • Reservation of seats in favor of women in Panchayat, Municipality, and State Government employment is constitutionally valid under Art. 15(3). 
  • Under Art. 15(2) sex can’t be the sole ground for discrimination while in Art. 15(3) sex can be the sole ground of discrimination in favor of women. 

Art. 15(4):

  • Art. 15(4) was inserted by the 1st Constitutional Amendment Act, 1951.
  •  It confers power on the state to make special provisions in favor of backward classes of citizens who are socially and educationally backward including SCs, STs. 
  • Accordingly, State has made provisions for reservation in favor of backward classes of citizens in educational institutions.

Art. 15(5):

  • Art. 15(5) was added to the Constitution under 93rd Amendment Act, 2005. It allows states to reserve seats in favor of backward classes of citizens in educational institutions including private educational institutions but excluding Minority Educational Institutions.
  • Under Art. 15(5), Parliament enacted the Central Educational Institution Act 2007 under which not more than 27% of seats have been reserved in favor of other backward classes in central educational institutions such as IITs, NITs AIIMS, IIM.

 

EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT

Art. 16:

  • Fundamental Rights gave under Art. 16 is enforceable only against the State.
  • These rights are enjoyed only by the citizens.

Art. 16(1):

  • Art. 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. 

Art. 16(2):

  • No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth, or residence.
  • Art. 16(1) and Art. 16(2) confers Fundamental Rights on citizens against discrimination.
  • Art. 16(3), Art. 16(4), Art. 16(5) confers the power on State to make special provisions in favor of certain categories of citizens such as backward classes of citizens in public employment.

Art. 16(3):

  • Art. 16(3) confers power on Parliament to provide by law prescribing residence as a ground for qualification in certain classes of employment under the State.
  • For eg. Mulki (local) rules formulated by the state of Hyderabad before independence reserved all Class III and Class IV posts for the local residents. They became void under Art. 16(2) when the constitution came into force but since the conditions of locals were bad, Mulki rules were extended by Parliament for 10 more years.

Art. 16(4):

  • Art. 16(4) confers the power on the State to provide reservation for backward classes of citizens in public employment provided backward classes of citizens are not adequately represented in public employment in the opinion of the State. 

 

Reservation policy in order to be Constitutionally valid shall have to conform to the following Constitutional requirements:

  • The disadvantaged classes of citizens shall be socially and educationally backward. But the economic backwardness among a section of citizens belonging to the upper caste is no basis to provide reservation under the Constitution.
  • The backward classes are not adequately represented in the public employment in the opinion of the State.
  • The overall reservation in favor of SC, ST, and OBC shall not exceed 50%. It, however, doesn’t include reservations made on non-backward class consideration such as reservations in favor of physically handicapped children, women, etc.
  • The concept of creamy layer shall apply in case of OBC reservation under which socially and educationally advanced sections among the OBC shall be identified and removed from the benefits of reservation otherwise OBC reservation shall be held to be unconstitutional and void.

Rule of Vertical Reservation:

  • In the Indira Sawhney case, Supreme Court held that the overall reservation made in favor of backward classes of citizens shall not exceed 50%. If it exceeds, it is held to be unconstitutional and void. This is known as the Rule of Vertical Reservation. 

Horizontal Reservation Policy:

  • When a section of backward class citizens is divided into sub-groups and distributing a percentage of seats reserved for that section of classes among sub-groups is known as Horizontal Reservation Policy.

Carry Forward Policy:

  • It is followed by both Central and State governments in favor of SC and ST in case of public employment but not in educational institutions.
  • Under this policy, the unfilled vacancies out of seats that are reserved for SCs and STs shall be carried forward to the following years and these unfilled vacancies can be filled up only from SC & ST candidates.
  • Art. 16(IVB) inserted by 81st Amendment Act provides that vacancies falling under carrying forward policy shall always remain separate from the regular vacancies falling in a particular year. These two categories of vacancies should not be clubbed for finding out whether the quota of 50% has been exceeded or not. It ends the 50% ceiling on a reservation in backlog vacancies.

Read also: Polity Questions with Explanation

 

ABOLITION OF UNTOUCHABILITY

Art. 17: Abolition of untouchability and prohibition of its practice:

  • Art. 17 abolishes untouchability in all forms and declares untouchability as a punishable offense.
  • The Parliament prescribes punishment of imprisonment up to 6 months or by fine up to Rs.500 or both.
  • Neither Constitution nor Parliament has defined ‘’untouchability’.
  • Mysore High Court has defined ‘untouchability’ as a social practice among Hindus under which a person is looked down upon and discriminated against solely on the basis of his caste.
  • Parliament enacted the Untouchability Offences Act 1955 which was subsequently amended and renamed as the Protection of Civil Rights Act, 1955.

Protection of Civil Rights Act, 1955 declares the following acts as offenses:

  1. Denying a person entry to a place of public worship or not allowing him to worship.
  2. Justifying untouchability on traditional, religious, philosophical, or other grounds.
  3. denying access to any shop, hotel, or places of public entertainment.
  4. Insulting a person belonging to a scheduled caste on grounds of untouchability.
  5. Refusing to admit persons in hospitals, educational institutions, or hostels established for public benefit.
  6. Preaching untouchability directly or indirectly.
  7. Refusing to sell goods or render services to any person.

 

ABOLITION OF TITLES

Art. 18: Abolition of titles except military and academic

Art. 18(1):

  • Art. 18(1) prohibits the State from conferring any title on any person that is in nature of Sir, Maharaja, Rai Bahadur, etc. However, State is allowed to recognize military distinctions such as Paramveer Chakra and academic distinctions in the form of Ph.d. etc.
  • In the Balaji Raghavan v. Union of India (1996) case the Supreme Court upheld the Constitutional validity of the National Awards- Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Sri. It held that these awards do not come under ‘titles’ within Art. 18 as the theory of equality does not mandate that merit should not be recognized.

Art. 18(2):

  • Art. 18(2) prohibits any Indian citizen from receiving any title from a foreign state but they are free to receive awards in form of Nishani Pakistan, Legion-De-Honour from France, etc.

Art. 18(3):

  • Art. 18(3) prohibits a foreigner who is in service of Government from receiving any title from any State without the prior permission of the President of India. 
  • This ensures his loyalty to the State.

Art. 18(4):

  • Art. 18(4) prohibits a foreigner who is in service of Government from receiving any present, emolument, or office from any State without the prior permission of President of India. 

 

RIGHT TO FREEDOM (ART. 19-22)

  1. Protection of six rights regarding freedom of:
    1. speech and expression,
    2. assembly,
    3. association,
    4. movement,
    5. residence, and 
    6. profession (Art. 19)
  2. Protection in respect of conviction of offenses (Art. 20)
  3. Protection of life and personal liberty (Art. 21)
  4. Right to elementary education (Art. 21A)
  5. Protection against arrest and detention in certain cases (Art. 22)

Read also: Supreme Court of India Notes for UPSC

 

PROTECTION OF SIX RIGHTS

Art. 19: Protection of six rights

Art. 19 guarantees to all citizens the six rights.

  1. Right to freedom of speech and expression.
  2. Right to assemble peacefully and without arms.
  3. Right to form associations or unions or co-operative societies.
  4. Right to move freely throughout the territory of India.
  5. Right to reside and settle in any part of the territory of India.
  6. Right to practice any profession or to carry on any occupation, trade, or business.
  7. Originally, Art. 19 contained 7 rights. But the right to acquire, hold and dispose of the property was deleted by the 44th Amendment Act of 1978.
  8. These six rights are protected against state action only and not private individuals.
  9. These rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations etc.
  10. The State can impose ‘reasonable restrictions on the enjoyment of these 6 rights on the grounds mentioned in Art. 19 itself.

 

FREEDOM OF SPEECH AND EXPRESSION

  • Freedom of Speech and Expression (Art. 19(1)(a)) implies that every citizen has the right to express his views, opinions, belief, and convictions freely by word of mouth, writing, printing, picturing, or in any other manner.

Freedom of speech and expression includes:

  1. Right to propagate one’s views as well as views of others.
  2. Freedom of the press.
  3. Freedom of commercial advertisements.
  4. Right against tapping of telephonic conversation. 
  5. Right to telecast, that is, the government has no monopoly on electronic media.
  6. Right against bandh called by a political party or organization.
  7. Right to know about government activities.
  8. Freedom of silence.
  9. Right against the imposition of pre-censorship on a newspaper.
  10. Right to demonstration or picketing but not right to strike.

The State can impose reasonable restrictions on the exercise of this right on grounds of:

  1. Sovereignty and integrity of India.
  2. Security of the state
  3. Friendly relations with foreign states, public order
  4. Decency or morality
  5. Contempt of court, defamation, and incitement to an offense.

 

FREEDOM OF ASSEMBLY

  • Freedom of Assembly (Art. 19(1)(b)) guarantees citizens the right to meet each other.
  • To claim this right the assembly of people has to be peaceful and without arms. 
  • The State may impose reasonable restrictions in the interest of public order and sovereignty and integrity of India.
  • Under section 144 of Cr. P. C., the magistrate can put reasonable temporary restrictions on the freedom of assembly of citizens to prevent an imminent threat to public order or peace.
  • Freedom of assembly gives people the right to hold public meetings on anybody’s property. The government can impose restrictions if such meetings or processions disturb the road traffic or peace in restricted areas.

Picketing and demonstrations:

  • Picketing and demonstrations usually involve 3 Fundamental rights- Freedom of Speech, Freedom of assembly, and Freedom of movement.
  • These are regarded as forms of freedom of speech and expression.
  • These are non-violent acts of persuasion.
  • The right to make a peaceful demonstration or taking out a procession, arranging public meetings, etc are democratic rights with reasonable restrictions.

 

FREEDOM OF ASSOCIATION

  • Under Art. 19(1)(c), the citizens have the right to form associations or unions.
  • It does not only includes the right to form associations but also to continue with the association as such.
  • The freedom to form an association implies also the freedom to form or not to form, to join or not to join an association or union.
  • The State can impose reasonable restrictions on freedom of association or union in the interest of public order, morality and sovereignty, and integrity of India. 

Strike:

  • It is a temporary stoppage of work by a group of employees in order to express a grievance.
  • The right to strike is not an absolute right but it flows from the Fundamental Right to form a union.
  • The Supreme Court has stated that “no person has the right to destroy another’s a property in the guise of the bandh, or hartal or strike or to cause inconvenience to others or to create a risk to life, liberty or property of any citizen or to public property.”
  • Central Civil Services Conduct Rules, 1955 reads: “No Government servant shall participate in any demonstration or resort to any strike in connection with any matter pertaining to his conditions of service”.
  • The Supreme Court held that the trade unions have no guaranteed right to strike or right to declare a lock-out. The right to strike can be controlled by appropriate industrial law.

Right of Association and Armed Forces:

  • Under Art. 33, the Constitution empowers the Parliament to modify the rights conferred by Part III of the Constitution, in their application to members of the Armed Forces or other forces engaged with the maintenance of public order.
  • Parliament has banned the formation of trade unions for the members of the Armed Forces, Police, etc.

 

FREEDOM OF MOVEMENT

  • Art. 19(1)(d) guarantees freedom to move freely throughout the territory of India.
  • Reasonable restrictions can be imposed in the interest of the general public or for the protection of the interests of any Scheduled Tribes.
  • For eg. Restrictions may be imposed on movement, to control epidemics, or for that matter to protect the environment or biodiversity or to protect tribal culture such as Jarawas in Andaman.
  • Freedom of movement has 2 dimensions- internal (right to move inside the country) and external (right to move out of the country and the right to come back to the country).
  • Art. 19 protects only the first dimension while the second dimension is dealt with by the Right to life and personal liberty guaranteed by Art. 21.

 

FREEDOM OF RESIDENCE

  • Art. 19(1)(e) guarantees citizens the right to reside (temporary stay) and settle anywhere in the territory of India.
  • The freedom of movement and freedom to reside and settle are complementary to each other. Their object is to remove the barriers within India. They promote the national unity and integrity of India.
  • The State can impose reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes, from exploitation and coercion.
  • The freedom to travel and reside or settle in the North-eastern states of India, Jammu, and Kashmir, Uttarakhand, etc has been restricted for the reasons stated before.

 

FREEDOM OF PROFESSION

  • Art. 19(1)(g) guarantees a citizen the right to practice any profession or to carry on any occupation, trade, or business.
  • A citizen’s right to carry on a profession is basic to the life of a man and the state imposes no particular restriction, except the interest of the general public.
  • There is no right to carry on a dangerous or immoral business.

The State is empowered to:

  1. prescribe professional or technical qualifications for carrying on any occupation, trade, or business.
  2. The State may exclude, completely or partially, the citizens or other entities from carrying on any trade, business, industry, or service, where the State or a corporation owned or controlled by the State is involved.

 

RESTRICTIONS ON ART. 19

  • Each of the above rights to freedom has been qualified by restrictions. The Courts have the power to review the reasonableness of any of the restrictions and strike them down if they are not justified.
  • When a Proclamation of Emergency is made under Art. 352, then Art. 19 is suspended (Art. 358), so that pre-censorship on the freedom of speech and expression, may be imposed, without any restraint.
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