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Chapter 03. Fundamental Rights (Polity & Constitution of India Notes)

FUNDAMENTAL RIGHTS

➤ The fundamental Rights are meant for promoting the ideal of political democracy.
➤ These are fundamental in the sense, that they are the most essential rights for the allround development (material, intellectual, moral and spiritual) of the individuals.
➤ It is also named so because they are guaranteed and protected by the fundamental law of the land i.e. constitution.
➤ Articles 12 to 35 deal with the fundamental rights.
➤ There are six fundamental rights excluding right to basic education.
➤ The fundamental rights are the freedoms guaranteed but these freedoms are not absolute, but are justiciable.
Justiciable means judicially enforceable.
➤ The fundamental rights are different from the legal rights.
➤ The legal rights are protected and enforced by ordinary law. On the contrary the fundamental right is protected and guaranteed by the constitution.
➤ Article 21A is the right to education, was inserted in the year 2002 by the 86th constitutional amendment Act.
➤ Generally right to education is falls under the right to freedom.
➤ The state may deny some of the fundamental rights to a class of people as armed forces, paramilitary personnel police etc., in the interest of administrative efficiency or National integrity.
➤ Except the rights mentioned in articles 20 and 21, President has the power to suspend the enforcement of ➤ The fundamental rights are of two categories —
(i) Rights which are provided to the citizens of India
(ii) for all other person including foreigners.
➤ The rights granted under Articles 15, 16,19, 29 and 30 are available to citizens only while all other rights are available to all persons.
➤ When there is a Proclamation of emergency under Article 352 on grounds of war or external aggression, the operation of Article 19 remains suspended.
➤ The President can suspend operation of other rights (excluding art 20 and 21) also by a separate order (issued under Article 359) during the Prevalence of national emergency.
➤ Initially there were seven fundamental rights in our consitution but the 44th amendment Act 1978 deleted right to property.
➤ There are six categories of Fundamental Rights :
1. Right to Equality
2. Right to Freedom
3. Right against Exploitation
4. Right to Freedom of Religion
5. Cultural and Educational Rights
6. Right to Constitutional Remedies.

1. RIGHT TO EQUALITY (ARTICLES 14-18)

(i) Article 14 : Provides for equality before law or equal protection of law to all persons within the territory
(ii) Article 15 : Prohibits ‘the state’ from discriminating against any citizen on grounds only of religion, race, caste, sex, or place of birth.
(iii) Article 16 : Provides for equality of opportunity to all citizens in matters of public employment.
(iv) Article 17 : Provides for abolition of untouchability.
(v) Article 18 : Provides for abolition of titles.

2. RIGHT TO FREEDOM (ARTICLES 19-22)

(i) Article 19 : It guarantees the citizens of India the following six fundamental freedoms —
(a) Freedom of speech and expression
(b) Freedom of Assembly
(c) Freedom of Association
(d) Freedom of movements
(e) Freedom of residence and settlement
(f) Freedom of profession, occupation, trade or business.
(ii) Article 20 : Protection in respect of conviction for offences
(iii) Article 21 : Protection of life and personal liberty.
(iv) Article 22 : Protection against arrest and detention in certain cases.
➤ Whenever a person is arrested, he should be informed as soon as may be, of the grounds for his arrest and should be allowed to consult and to be defended by a legal practitioner of his choice and produced before the nearest magistrate within a period of

3. RIGHT AGAINST EXPLOITATION (ARTICLE 23-24)

(i) Article 23 : Prohibition of traffic in human beings and forced labour.
(ii) Article 24 : No child below the age of 14 can be employed.

4. RIGHT TO FREEDOM OF RELIGION (ARTICLE 25-28)

(i) Article 25 : Freedom of conscience and the right to freely profess, practice and propagate religion.
(ii) Article 26 : Freedom to manage religious affairs.
(iii) Article 27 : Prohibits taxes on religious grounds.
(iv) Article 28 : Freedom as to attendance at religious ceremonies in certain educational institutions.

5. CULTURAL AND EDUCATIONAL RIGHTS (29-30)

(i) Article 29 : Protection of interests of minorities.
(ii) Article 30 : Right of minorities to establish and administer educational institutions.
(iii) Article 31 : Omitted by the 44th Amendment Act 1978.

6. RIGHT TO CONSTITUTIONAL REMEDIES.

Article 32 : The right to move to the supreme court in case of violation of fundamental rights.
➤ It has been called the cornerstone of the entire edifice setup by the constitution.

WRITS –TYPES AND SCOPE

The supreme court under Art 32 and the High courts under Art 226 can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
Habeas corpus : It is a latin term which literally means “to have the body of ”. It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention. The writ of habeas corpus can be issued against both public authorities as well as private individuals.
Mandamus : It literally means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued an inferior court, a tribunal or government for the same purpose.
The writ of mandamus cannot be issued
(a) against a private individual or body
(b) to enforce departmental instruction that does not possess statutory force.
(c) when duty is discretionary and not mandatory
(d) to enforce a contractual obligation.
Prohibition : Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus unlike mandamus that directs activity, the prohibition directs inactivity.
Certiorari : In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a lower court or tribunal the latter to itself or to squash the order of the latter in a case.
It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.
QUO-Warranto : In the literal sense, it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person. The writ can be issued only in case of a substantial public office of a permanent character created by a statue or by the constitution. It cannot be issued in cases of ministerial office or private office. It can be sought by any interested person and not necessarily by the aggrieved person.

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