FUNDAMENTAL RIGHTS
who can claim fundamental rights?
Fundamental rights available to both citizens and foreigners except enemy aliens
Article 14 – Equality before the 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 labour.
Article 24 – Prohibition of employment of children in factories etc.
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.
Fundamental Rights Available Only to Citizens of India
Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.
Article 16 – Equality of opportunity in matters of public employment.
Article 19 – Protection of six rights related to freedom – (a) of speech and
expression; (b) to assemble peaceably and without arms; (c) to form associations
or unions; (d) to move freely throughout the territory of India; (e) to reside and
settle in any part of the territory of India; and (f) to practice any profession, or to
carry on any occupation, trade or business.
Article 29 – Protection of language, script and culture of minorities.
Article 30 – Right of minorities to establish and administer educational
institutions.
SUSPENSION OF FUNDAMENTAL RIGHTS
During the period of emergency, the State is empowered to suspend the
fundamental rights. The term ‘State’ is used here in the same sense in which it has
been used in the chapter on fundamental rights.
It means that the power to suspend the operation of these fundamental rights is
vested not only in Parliament but also in the Union Executive and even in
subordinate authority. The specific provisions under constitution for suspension
of fundamental rights are as follows:
Art. 358 In case of national emergency on external grounds, fundamental right
under Art. 19 is automatically suspended. Automatic suspension refers that as
soon as national emergency on external grounds is declared, there is no need of
separate proclamation for suspension of Article 19.
Suspension of Article 19 is required on account of security reasons. For example, if
people continue to enjoy freedom of movement throughout the territory of India,
then some people may create security problems.
Art. 359 President through separate proclamation can suspend any fundamental
right during national emergency (whether on internal or external grounds) except
Fundamental rights under Art. 20 and Art. 21.
External ground of declaring national emergency is war or external aggression and
internal ground of declaring national emergency is internal armed rebellion.
Difference between Provisions of Articles 358 and 359
Art 358 is applicable during external emergency. Article 359 is applicable during
external as well as internal emergency.
Only fundamental right given under Article 19 is suspended. Any fundamental
right can be suspended except those given under article 20 and 21. There is no
requirement of separate
proclamation. Separate proclamation is required to suspend any fundamental
right.
ARTICLE -12
Definition of ‘State’ under Article 12
Article 12 defines ‘State’ as:
Legislative and Executive Organs of the Union Government:
Indian Government
Indian Parliament – Lok Sabha, Rajya Sabha
Legislative and Executive organs of the State Government:
State Governments
State Legislature – Legislative Assembly, Legislative Council of State
All local authorities
Municipalities – Municipal Corporations, Nagar Palika, Nagar Panchayats
Panchayats – Zila Panchayats, Mandal Panchayats, Gram Panchayats
District Boards
Improvement Trusts, etc.
Statutory and Non-Statutory Authorities
Statutory Authorities Examples:
National Human Rights Commission
National Commission for Women
National Law Commission
National Green Tribunal
National Consumer Disputes Redressal Commission
Armed Forces Tribunal
Non Statutory Authorities Examples
Central Bureau of Investigation
Central Vigilance Commission
Lokpal and Lokayuktas
What does Article 12 of the Constitution mean?
It means to define the term, ‘State’ which is used in Part-III of the Constitution
while mentioning the applications of the provisions of Fundamental Rights of the
Indian Citizen
Is Article 12 a fundamental right?
Article 12 in itself is not a fundamental right technically, but it defines the term
‘State’ for the Fundamental Rights that are entailed in the Article 14-35.
ARTICLE 13
Laws inconsistent with Fundamental Rights
Article 13(1) talks about the laws which were present before the constitution came
into force. It says that if they are inconsistent with the provisions of the part of
this article will be void to the extent of the inconsistency.
Article 13(2) talks about the laws which are passed after the constitution came
into force. It renders all the laws void which violates the provisions of this part.
Doctrine of Severability
As in article 13(1), it is mentioned that the pre-constitutional law will only be void
to the extent of the inconsistency while in article 13(2) it is mentioned that post-
constitutional law will be void to the extent of the contravention.
The doctrine of Severability says that is if a part of any law is inconsistent then
the rest of the part will remain valid. It applies to both pre and post-constitutional
law.
AK GOPALAN V. STATE OF MADRAS
It was found that section 14 of the preventive detention Act was violating Article
14 of the constitution so it was made void but the other parts of the act were
separable while still alive and operative.
Doctrine of Eclipse
Article 13(1) talks about the pre-constitutional law as it says that the laws existing
before the commencement of the constitution if found inconsistent with the
provisions present in article 13 then they will be void.
But the Doctrine of Eclipse says that the inconsistent laws though becomes out of
whack but not completely dead. It is eclipsed by the fundamental rights and can
again be alive through some constitutional amendments.
It is only applicable to citizens as non-citizens do not have fundamental rights so
they can’t challenge the validity of any law.
DEEP CHAND V. STATE OF UTTAR PRADESH
It was ruled out that only the pre-constitutional law can be brought to life whereas
the post-constitutional law which infringes fundamental right is void from its
dawn.
Doctrine of Waiver
This doctrine considers that a person is his own judge and will choose what is best
for him. The doctrine of waiver says that a person can put aside his right if he
wants to. It only talks about individual rights and not the rights of the public in
general.
OLGA TELLIS V BOMBAY MUNICIPAL
CORPORATION
Some pavement dwellers took an undertaking to allow the government to set up
huts on pavement and to not hinder the demolishing of the huts.
But during the demolishing of the huts he dwellers filed a petition under Article
21. The Supreme Court ruled out that no one can relinquish their fundamental
rights as they are for the public utility given to an individual for his own benefit.
ARTICLE -14
According to Article 14, the State cannot deny equality before law and equal
protection of law to any person within India. The expression ‘equality before law’
is a negative concept and the State has a duty to abstain from doing any act
which is discriminatory in nature.
The term ‘equal protection of law’ is based on the 14th Amendment of the US
Constitution. It directs that equal protection of the law should be provided to all
the people of India for the enjoyment of their rights without any privileges r
favouritism towards any person. This is a positive concept because it implies a
duty on the State to take actions for ensuring this right to all the citizens.
Exceptions to Article 14 of the Indian Constitution
There are a number of exceptions to Article 14 of the Indian Constitution, there are as
follows:
1. Article 361: The President of India and the State Governor enjov certain
immunities like no criminal proceedings, not answerable to any court, no arrest,
etc.
2. Article 361-A: No person shall go through a civil or criminal proceeding with
respect to a true report published in the newspaper related to any proceeding of
the Parliament.
3. Article 105 saves the member of parliament from any court proceeding for any
vote given in the parliament.
4. Article 194 also protects the member of Legislature against anything said in the
Legislature.
5. Article 31-C is a huge expedition to Article 14 of the Indian Constitution, and
related to DPSP.
Article -15
Article 15 of the constitution do prohibits the discrimination only on the grounds of caste, sex, religion,
place of birth and race. The use of the word only means discrimination on the other grounds is not
valid. The article of the constitution is guarded under the part III of the Indian constitution.
Article 15 restricts discrimination on the ground of:
Religion – It means that no person should be discriminated on the basis
of religion from accessing any public place or policy by the state or any
group.
Race – Ethnic origin should not form a basis of discrimination. For
example, a citizen of Afghan origin should not be discriminated from
those of an Indian origin.
Caste – Discrimination on the basis of caste is also prohibited to prevent
atrocities on the lower castes by the upper caste.
Sex – Gender of an individual shall not be a valid ground for
discrimination in any matter. For example, discriminating transgenders,
females, etc.
Place of birth – A place where an individual is born should not become
a reason for discriminating among other members of the country.
Case law- Champakam Dorai Ranjan v. State of Madras, air 1951[2]
In the above case the state reserved some seats for the backward classes of the society but Supreme
court declares it unconstitutional but the state says that according to article 46 of the Indian constitution
the state can reserve seats for the weaker section of the society but still the Supreme court declares
it unconstitutional by saying that Directive Principles of the State policy cannot over-ride the
fundamental rights but still the 1st amendment of the constitution was done.
ARTICLE -16
Article 16 of the Constitution of India, talks about the right of equal opportunity in the
matters of public employment. It states that:
1. There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State,
2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
Article 16 of the Indian Constitution guarantees equal opportunity to all citizens
in matters related to employment in the public sector. Article 16(1) states that
there shall be equal opportunity for the citizens in the matter of employment or
appointment to any office under the State. The provision of equality is only
applicable to the employment or offices which are held by the State. The State is
still free to lay down the requisite qualifications for the recruitment of employees
for the Government services. The Government can also pick and choose
applicants for the purpose of employment as long as the applicants have been
given an equal opportunity to apply for the Government service.
Article 16(2) lays down the grounds on which the citizens should not be
discriminated against for the purpose of employment or appointment to any office
under the State. The prohibited grounds of discrimination under Article 16(2) are
religion, race, caste, sex, descent, birthplace, residence, or any of them. The
words ‘any employment or office under the state’ mentioned in clause 2 of Article
16 implies that the said provision refers only to public employment and to the
employment in the private sector.
Article 16(1) and (2) lay down provisions for equal opportunity of employment in
the public sector. However, it is stated in clause 3 of Article 16 that nothing in
this article shall prevent Parliament from making any law which prescribes to the
citizens who are appointed to any office under the State in regard to any
requirements as to residence within that State or Union territory prior to
employment or appointment to any office under the State.
Article 16(4) of the Indian constitution provides for the reservation of services
under the State in favor of the backward class of citizens. The State shall decide
whether a particular class of citizens is backward or not. Therefore, the State shall
lay down acceptable criteria in order to ascertain whether a particular class of
citizens is a backward class or not.
Equal Pay for Equal Work
A question of equal pay for equal work was raised for the first time in the case
of Indian Oil Corporation vs Chief Labour Commissioner. The case Chemical
Mazdoor Panchayat vs Indian Oil corporation was remanded by the Supreme
Court in order to get a fresh decision on it by the High Court of Gujarat. The issue
before the High Court of Gujarat was whether the contractual laborers of the
Indian Oil Corporation were entitled to equal wages like the permanent employees
of the Company. In 1992, it was found by the Labour Commissioner that the work
which is done by the contractual laborers is similar to the permanent employees
and consequently, an order was passed by the Labour Commissioner making Rule
25(2)(v) of the CLRA Rules applicable. In 2013, Gujarat High Court stated that
the Labour Commissioner was wrong in only taking into consideration the nature
of the work of the contractual laborers and permanent employees. Other aspects
such as quality of work, the capability of the individual, qualification, work
experience, etc. should have also been taken into consideration.
