LUXMIKANT POLITY CRUX NOTES-CHAPTER-7

Derived from the Constitution of USA [Bill of Rights]

·         Also “The Corner stone of the Constitution” &

·         Together with DPSP (Part -4), called “The Conscience of the Constitution”.

·         Guaranteed – uphold equality of all – target larger public interest

·         Aim – establishing – ‘a government of laws and not of men’

·         They are Fundamental because – guaranteed & protected by the Constitution, which is Fundamental law of land.

·         They are not absolute but qualified – subject to reasonable restrictions – strike a balance between the rights and society

·         Available against arbitrary action of state and private individuals

·         Some are negative while others are positive

·         Justiciable

·         Defended and guaranteed by Supreme Court

·         Not sacrosanct or permanent

·         Except Article 20 and 21 – can be suspended during national emergency – Article 19 cannot be suspended during armed rebellion

·         Most of them are directly in enforceable while a few can be enforced by Parliamentary laws

a) Govt & Parl. of India.

b) Govt & legislature of state

c) All local & other authority –

1. Within the territory of India

2. Under the Constitution of GOI

·         Declares, all laws, Inconsistent with or derogation of any FRS shall be void.

·         Declares, constitutional amendment is not a law and hence cannot be challenged

·         Keshwananda Bharti – Constitutional Amendment – can be challenged on the ground that it violates a fundamental right – part of the basic structure of the Constitution

·         Ambit of Law –

1.       Permanent laws enacted by the Parliament or the state legislatures

2.       Temporary laws like ordinances issued by the president or governors

3.       order, bye-law, rule, regulation or notification

4.       Non-legislative sources of law, i.e., customs & its usage having the force of law.

·         State shall not deny to any person equality before law and equal protection of law.

·         Includes citizens & foreigners as well as legal person.

Equality before law – British origin, (-) concept, prohibits special treatment, ‘Rule of law’ by Prof. AV Dicey.

Equal protection of Law – US Origin, (+ive) concept, allow special treatment, equality of treatment, permit – ob & transaction by Law.

Rule of Law – Indian System, no person can be punished except for bench of law

·         Everyone – Equal – before Law

·         Cont. Result – right of individual rather than Constitution being the source of individual Rights.

·         SC held ‘Rule of Law’ is basic features & cannot be amended.

Art- 15 – Prohibition of Discrimination on certain grounds, only of religion, race, caste, sex or birth of place.

– Subject to Any disability, liability, restriction condition –

Ø  Access shop, public, restaurants, hotels & place of public entertainment.

Ø  Use of well, tanks, bathing ghats, road & place of public result maintained wholly or practically by state funds.

Art- 16 – Equality of opportunity in public employment

No citizen can be discriminated against or be in eligible for any employment or office under state on grounds of only religion, race, caste, sex, decent. Place of birth or residence.

Ø  Reservation can be provided for the upliftment of SC/ST/other backward class

Ø  2019– allow EWS reservation- maximum 10%

Ø  Reservation can also be provided on the basis of consequential seniority in public employment to SC/ST

Art-17 – Abolition of untouchability – “Self-operative Provision” untouchability offence act, 1955

·         Protection of civil Right Act (1976)

·         Sc/ST (Prevention of Atrocities Act) 1989

·         2015 SC/ST Act – New offence added

Ø  6 month or 500 Rs fine or both

Ø  Disqualified for election of state legislature & parl.

Art-18 – Abolition of titles, status privileges

·         Prohibit the state from Conferring any titles – except Military & academics

·         Prohibit citizen title Foreign Nation

·         Foreign titles from foreign Nation –

Ø  They have to take permission from POI

·         1954 – Congress Nation Award | Janta Party against (X) – 1980

·         Balaji Raghvan Case

Ø  Title not allowed (X)

Ø  Award (✓)

Why freedom – 1. Demand (inc) by Active citizen

2. Innovative & Dynamic society

3. Poor Democracy – Dynamic/ vibrant Democracy

Art 19 (1) (a) – Right of freedom of expression, speech etc.

Art 19 (1) (b) – Right to peace full assembly without Arms

Art 19 (1) (c) – Right to form union & Cooperative society

Art 19 (1) (d) – Right to move freely throughout the territory

Art 19 (1) (e) – Right to reside & settle in any part of territory

Art 19 (1) (f) – abolished by 44^th CA, 1948

Art 19 (1) (g) – Right to practice any business & profession.

Art- 20 – protection in respect of conviction of offence

Ø  No exportfacto law

Ø  No double Jeopardy

Ø  No self-incrimination

Art-21 – Protection of life & personal liberty

·         No person shall be deprived of personal liberty except the authority established by the law –United Kingdom

·         In India – follow procedure established by law – reason behind passing law is not checked extensively as in USA – limiting power of judiciary

·         SC held – Menaka Gandhi – should follow–“Due to process of law” – USA

Ø  fair

Ø  Reasonable

Ø  Transparent (and not emphasised on only physical existence but also social existence.)

Art- 21 (A) – state shall provide free & compulsoryeducation from 6-14 years, by 86^th CA- 2002. – also recognised as a fundamental duty of parents to send children to school.

Art-22 – Protection against Arrest and Preventive Detention.

Arrest-

Ø  24 hr – present before a magistrate – no right for police investigation until court order – – blood samples and other tests can be taken with due permission of the accused

Ø  Right to consult legal practitioner of once choice

Ø  Right to know the reason for arrest

Preventive detention- Action on suspicion or doubt of causing or inciting  – disturbing morality –harm security of state

Ø  Max-3 month – extendable upon due permission from a joint committee consisting of persons with qualification of High Court judges

Ø  Eg- TADA, COFEPOSA, UAPA

·          Prohibition of human trafficking

·         The immoral traffic prevention Act 1956

·         Nation Anti – trafficking bill,2018

·         Women forced begging, child, Body organ etc.

Art-24 – Prohibition of child labour in factories & hazardous industries (14 years)

·         Non-hazardous employment not prohibited – rural India – more hands = more money

·         1996 SC – child Rehabilitation welfare fund – 2,000

·         Punishment- 6m – 2 year or 50000 fine or both for repeated – (1-3 year) Jail

·         Right to freedom of Religion (available to all i.e. freedom of conscience.)

·         Right to –

Ø  Profess, Practice, Propagate

Ø  Restriction on Public order, Morality health.

Ø  State can regulate over practice and propagation – not over professing or conscience

Art 26 – Collective Right to manage & establish &Main Religious Institution

Art-27 – From a person, no any taxes for promotion or maintenance of any particular religion or religious institution.

Public money (X) – Promotion of Religion.

Art-28 –

·         No Religious instruction – wholly by state

·         Religious instruction (✓)– by trust e.g. SVM, Madarsa

·         Recognition by state & funded by state, pvt, school.

·         Protection of Interest of minorities.

·         Right to Conserve his language, Religion, Culture.

·         For education in any institution; No discrimination on the basis of Religion, Race, Case, Religion etc.

Art-30 –

·         Right of Minority –

1. Conserve – education institution

2.  Administer

Linguistic & Religious.

·         Eg- St Stephen College case- they wanted to provide all seat to minority but, rule, only 50% of seat given to minorities.

Art-31 –

·         No one shall be deprived of his property except authority by law

·         By 44^th AA, 1978 – abolished

·         Art. 300 (A) was Added

·         As Law of property – Not fundamental but Legal & Constitution Right.

Art-31 (A) – Compulsory acquisitions can be done

Art-31 (B) Violation of certains rules & regulation (land form)

Art-31 (C) Purpose to implement the DPSP in Art (39 (B)) & (39(C)).

By 1^st CA -1951 – 31 (A) & 312(B) was Added.

Art.32 –

On the violation of FRs, one can issue writs, (habeas corpus, mandamus, certiorari & quo warrento)

·         Habeas Corpus – Latin term meaning “to have the body of” – issued against both public and private – ordered issued by a court to person who has detained another to produce body of the later before it.

·         Mandamus – means “we command” –issued by the court to make a public official perform his official duties that he has failed or refuse to perform – issued against any public body, Corp, inferior court, tribunal, or government.

·         Prohibition – means “to forbid” – issued by a higher court to a lower court -prevent the latter from exceeding jurisdiction or usurping a jurisdiction that it does not possess- unlike mandamus that directs activity – prohibition directs inactivity

·         Certiorari – means “to be certified” – issued by higher court to a lower court to transfer a case pending or squash order – grounds: excess of jurisdiction or lack or error of law

·         Quo Warranto – means “by what authority or warrant” – issued by the court to enquire into legality of claim of a person to a public office – prevent illegal assassination of public office by person – unlike other four can be sought by any interested person and not only aggrieved.

Art. 33 – Parl. Has power to restrict the FRs of members of Armed force, para military force, police force, intelligence agencies.

Art.34 –

·         Restriction on FR

·         While material law enforce, No specific Conditioned Mentioned.

Art. 35 – To make law & give effect to certain specified fundamental right shall be vest in Parliament.

Excessive Limitation; vague; No socio economic Right, No permanent suspension during emergency, expensive Remedy, Preventive Detection, No consistent Philosophy.

·         No social and economic Rights

·         No Clarity

·         No Permanency

·         Suspension during emergency

·         Expensive Remedy

·         Preventive Detention

·         Necessary conditions for the material and moral protection of man.

·         Serve as a formidable bulwark of individual liberty.

·         Facilitate the establishment of rule of law in the country.

·         Protect the interests of minorities and weaker sections ofsociety.

·         Strengthen the secular fabric of the Indian State.

·         Check the absoluteness of the authority of the government.

·         Lay down the foundation stone of social equality and socialjustice.

·         Ensure the dignity and respect of individuals.

·         Facilitate the participation of people in the political and administrative process.

301 – Trade, intercourse, commerce shall be free.

326 – Election of LS & SLA on the basis of adult/suffrage.

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 & education Right (Art 29-30)

6.       Right to constitution remedies (Art. 32)