“Fundamental Rights and Directive Principles Chapter Scheme 3 Fundamental Rights General Provisions regarding Fundamental Rights @ Validity of Pre-Constitutional and Post-Constitutional laws (Art. 13) @ Fundamental Rights (Arts. 14 to 35) (1) Right to Equality (2) Right to Freedom ‘Triple Talaq Right to Privacy Right to Internet Right to Euathanasia Right to Education Right against Exploitation Right to Freedom or Religion Cultural and Educational Rights Right to Constitutional Remedies + Directive Principles of State Policy State to secure a social order for the promotion of the welfare of the people (Art. 38) Certain principles of policy to be followed by the State (Art. 39) Equal justice and free legal aid (An. 39A) Organisation of village panchayats (Art, 40) Right to work, to education and to public assistance in certain cases (Art. 41) Provision for just and humane conditions of work and matemity relief (Art. 42) Living wage, etc., for workers (Art. 43) Participation of workers in management of industries (Art. 43A) Promotion of co-operative societies (Art. 43B) 10. Uniform Civil Code for citizens (Art, 44) 11. Provision for early childhood care and education (Art. 45) 12. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections (Art. 46) 13. Duty of the State to raise the level of nutrition and the standard of living and to improve public health (Art. 47) 14. Organisation of agriculture and animal husbandry (Art. 48) 15. Protection and improvement of environment and safe-guarding of forests and wild life (Art. 48A) 16. Protection of monuments and places and objects of national importance (Art. 49) 17. Separation of Judiciary from the executive (Art. 50) — Fundamental Duties and their significance "naan Constitution (Eng) 20227 2 a Sooo ee eesIndians Contig © General Provisions regarding Fundamental Rights © Validity of Pre-Constitutuonal and Post-Constitutional laws (Ar13) @ Fundamental Rights (Arts. 14 to 35) The Part-IIl of the Constitution, which deals with the deel the elaborate model of the Irish, U.S. and the recent continental const are more of less similar to those existing in India, It enshrines not liberty of the American and French declarations, but also a generals the State. © General Provisions regarding Fundamental Rights : Before dealing with Arts. 14 to 35, Arts. 12 and 13 may first be considered, : ; aration of Fundamental Rights, 1s framed after tutions, particularly those wherein conditions only the classic guarantees of individual tatement of the political fundamentals of Its to be noted that most fundamental rights are available only against the State and its instrumentalities and not against private bodies. ‘Art.12 of the Constitution gives an extended meaning to the term “State”, so as to include: (a) The Government of India; (b) The Parliament of India; (©) The government of cach of the States, (d) The Legislature of cach of the States; and (c) All local or other authoriti aie authorities within the territory of India or under the control of the Government of ‘The most significant clause is clause (e) above, as +, as the term “other authorities” Constitution and it is therefore left to the courts to put meaning into this term, et: bp pen eto n P The question whether a particular authorit yy can be looked upon as a State” assume: pon as a State’ great anne because if it does not amount to a State, most fundamental rights would not be available oe such eee PeAIL LS which embodies an important provision of law, lays down as follows (1)_ All laws in force in the territory of India immediately before in 96 far as they are inconsistent with the provisions of P be voud. the commencement of the Constitution rut-IHl shall, to the extent of such inconsistency, (2) The State shall not make any law which sand any law made in contraventi takes away or abridges the rights conferred by this Par, hall, to the extent of the contrave ‘The fundamental rights embodied in Arts, 14 t (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 ‘The right to equality may be discussed under the following five heads : () Equality before the law ( Art. 14) (@) Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth (Art. 15) (Gi) Equality of opportunity in matters of public employment (Art. 16) Gv) Abolition of untouchability (Art. 17) (¥) Abolition of titles (Art, 18) © Equality before the law (Art, 14) Art. 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. ‘The right to equality guaranteed under Art.14 consists of two parts : (@) Equality before the law (b) Equal protection of the laws ‘The first phrase owes its origin to the English common law. Equality before the law means the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law. It ‘means that “the law should be equal and should be equally administered, that like should be treated alike’ ‘The meaning of this phrase is that there shall not be any discrimination before the law on extraneous grounds like rank, office, etc, ‘The other phrase “equal protection of the law", owes its origin to the American Constitution, While both the expressions, “equality before the law” and “equal protection of the laws” aimns at establishing equality of ‘egal status for all, there is some difference between these expressions. The former expression is somewhat a negative concept, implying absence of any special privilege in favour of individuals; while the later is a more Positive concept, implying equality of treatment in equal circumstances. This right to equality, as guaranteed in Art. 14, is available both to citizens and non-citizens. It aims establishing the rule of law in India. anTee © Prohibition of discrimination on grounds only of religion, race, An. 15 deals with tour related topics, namely, (a) Discrimination on the grounds of religion, rice, ete (b)_ Religious or racial disabilities in connection with access 0 shops, hotels, wells, tanks, ete (©) Special provisions for women und children: (d) Special provisions for socially and economically backward classes. (a) Discrimination on the grounds of religion, race, ete: ‘The State shall not discriminate against any citizen On grounds 0 birth, or any of them, The scope of this clause is very wide Art. 15(1) oP rights, whether political, civil or otherwise, The gen numerous other provisions of the Constitution, Thus, this guarantee of equality 1% secured by providing i) adult suffrage (Amt. 326); (i) equality in employment (Art 16(2)) (in) ligabitty for the office of Preside membership of Parliament eic. which may be held by any cHzen of India, and so on (b) Religious or racial disabilities in connection with the access to shops, hotels, wells, tanks, ete, No citizen shall, on grounds only of religion, race, caste, ex, place of birth oF any of them, be subject o any disability, restriction or condition with regard to — laces of public entertainment; or only of religion, Face, CAKE, 5X, Phiee of nerates against any State action seliating 10 the citizen’, reral guarantee contained 1n this clause 1s lusty (@ access to shops, public restaurants, hotels and pl Gi the use of wells, tanks, bathing ghats, roads and places of out of State funds or dedicated to the use of the general public One can at once detect the spirit of Mahatma Gandhi's teachings embodied in this clause, ‘Thus, 3 manage of a cinema theatre refusing to admit Hanijans would be violating this Article, The repeated use of ‘word “public” in Art, 15 (2) clearly shows that this Article does not authonse any citizen 10 use somebody clse’s private property. Thus, the owner of a private swimming pool will not contravene this Antic refuses to allow the public to use the same (©) Special provisions for women and children Nothing in this Article shall prevent the State from making any special provision for wom! This clause is an exception to the rule against discrimination. ‘Thus, provision of maternity relief for woe? workers (Art. 42), or of free education for children (Art. 45) or measures for prevention of their exploitation (An. 39 (f) will not amount to contravention of Art. 15. (@) Special provisions for socially and economically backward classes ashing inthis Article orn clause 2) of Art, 29 shall prevent the State from making any special pow for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. (Art. 15 (4)) Art, 15(4) was added in 1951 as a result of the judg , ‘ judgment of the Madras High Court in Champakst™ Dorairajan v. State of Madras (A.LR 1951 Mad, 149), which decision was upheld by the Supreme Cov" Equality of opportunity in matters of public employment (Art, 16) Article 16 contains seven clauses, which are discussed below : public resorts, maintained wholly or partly and children © There shall be equality of opportunity for all citizens in matters relating to employment or appointment any office under the State.Fundamental Righty and Directive Peinciptes reelpe 3} Ow civil service ts based on the Enghish model The = = 1 he “spoil which prevails in the United fas no ice ander ou Constituent AK mater of fat the pimple eh a eer Me Une Ss, prevailed in India even before it was introduced in England cn The Indian Parliament and the Legislatures can the principle of equality enshrined in Att. 14 ¢ ¢ Abolition of Untouchability (Art. 17) now transgrens the bawic featur re of the Constitution, namely, ot which Ant. 161) i» a face i “Untouchability” is abolished, and its practice in am ; ; form is forbidden. The enforcement of ansing out of “untouchability", shall be an offence puinishable in ‘The complete abolition of untouchability was one of the foremost visions of Mahatma Gandhi. An 0 secs to adopt the Gandhian idea withou any qualification, ‘The word “umuchaaty" hes ha heey ty in the Constinion, but i meant Yo cover different acts in different pats of India ‘Tiws Ariele kenres uuntouchability which, like slavery, amounts to a denial of human equality. This Article also makes anes in any form an offence. any divability ‘accordance with law. (An. 17) Iwill be seen that this Atticle enacts two declarations. It is firstly declared that untouchability i abolished and its practice in any fon is forbidden. Secondly, itis Iuid down that if w person seeks to enforce any disability arising out of untouchability, he will be guilty of an offence, > As itis not possible (0 give a precise definition of “untouchability”, the Protection of Civil Rights Act makes provisions with respect to the como-nest forms of untouchability practised in India & Abolition of titles (Art. 18) Conferment of titles by the State has been abolished, except in the case of military or academic distinctions, Citizens are prohibited from accepting titles from foreign States. Even non-citizens, who hold any office of profit or trust under the State, cannot accept any title from any foreign State without the consent of the President Likewise, no person who is holding any office of profit or trust under the State can accept any present, emolurment or office of any kind from or under any foreign State, without the consent of the President. (Art.18) individuals. Moreover, these rights ne available only 10 the citizens and (0 share-holders of a company but not to foreigners or legal perscns like companies or corporations, ete, > Freedom of Speech and Expression > Freedom of Association > Freedom of Residence ~_ Protection in Respect of Conviction for Offences > Freedom of Assembly ~> Freedom of Movement > Freedom of Profession, etc. —> Protection of Life and Personal Liberty + Freedom of Speech and Expression + 11 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, ‘The Supreme Court held that the freedom. of speech and expression includes the following : (a) Right to propagate one’s views as well as views of others. (b) Freedom of commercial advertisements (©) Right aga (d) ) nst tapping, of telephonic conversation. Right against bundh called by a political party of organisation Right to know about government activitiesIndian Constitution 14 | (Freedom of silence sane (g) Right to demonstration oF picketing but not right t0 8 on vo assemble peaceably and without arms. It includes the right to hold pubj, Sa zi processions, Tis freedom CA be exercised only on public land and th s ° x + nd unarmed. This provision does not pret h of public peace or one that involves arms. This 1 of right of assembly on two grounds, namely ince of traffic in the area concerned Every citizen has t meetings, demonstration assembly must be peace! ‘or one that causes brew! strike, “The Staie can impose reasonable resticlons on sovereignty and integrity of India ‘and public order in + Freedom of Association / ‘All citizens have the right (0 form association or unions OF co-operative societiey It includes the night to form political parties, companies, partnership firms, societies, clubs. organisation, trade unions or any body of Tades the right to start an association oF union but also to continue with the association ight of not to form or join an association or union. persons. It not only inc! pemynion as such, Further, it covers the negative 1 + Freedom of Movement we freely throughout the te ‘This freedom entitles every citizen fo mo frety om oe ste 10 ante or frm ne place © anor wihin #8 Indha is one unit so far as the citizens are concerned ‘Thus, the purpose is to promote ni ight does not include the right the exercise Juding the maintena sritory of the country. He can move te. This right underline the idea that ational feeling and not parochialism. + Freedom of Residence Every citizen has the right to reside and settle in any part of the terniory of the country. This right has two parts: (a) the right to reside in any part of the country, which means 10 Stay a 20Y place temporarily, and (b) the night to setle in any part of the country, which means to set up a home oF domicile at any place permanently. + Freedom of Profession, etc. practise any profession or to carry on any occupation, trade or business All citizens are given the right to ‘This right is very wide as it covers all the means of caring one’s livelihood. The State can impose reasonable restrictions on the exercise of this right in the interest of the general public. Further, the State is empowered to Prescribe professional or technical qualifications necessary for practicing any profession or carrying, on sy occupation, trade or business, and Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) a) of citizens or otherwise, Protection in Respect of Conviction for Offences Article 20 grants protection against arbitary and excessive ry lishment accused person, whether ¥ foreigner or legal persons like a company or a Caan Si provisions ‘that eat ; in (a) No ex-post-facto law : No person shall be (1) convicted of any offense on " in force at the time of the commission of tic act, nor (ii) subjected ae greater spe prescribed by the law in force at the time of the commission of the act. . than (b) No double jeopardy » No person shall be prosecuted and punished for the same off than fense more + onceFundamental Rights and Directive Principles (No self-incrimination himself. _» Protection of Life and Personal Liberty Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens me 15 No person accused of any offense shall be compelled to be a witness agama In the famous Gopalan case (1950), the Supreme Court has taken a na erpretation ¢ 21. It held that the protection under Article 21 is avallable only against abiomy lgilaive sie Totes that the State can deprive the right to life and personal liberty of a person based on law. This is beearne ot the expression ‘procedure established by law’ Article 21, which is different from the expression ‘due process of law’ contained in the American Constitution. Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair or unjust. Secondly, the Supreme Court held that the ‘personal liberty’ means only liberty relating to the person or body of the individual, But, in Menaka case (1978) , the Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21. Therefore, it ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. In other words, it has {introduced the American expression ‘due process of law’. In effect, the protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action. Further, the court held that the ‘right to life’ as embodied in Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living. It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man. + Triple Talaq The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning, the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code (Article 44) in India. On 22 August 2017, the Indian Supreme Court deemed instant triple talag (talag-e-biddah) unconstitutional. Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional. The remaining two declared the practice to be constitutional. Three of India’s neighboring countries — Pakistan, Bangladesh and Sri Lanka — are among the 23 countries worldwide that have banned triple talag. The Quran established means to avoid hasty divorces. It prescribes two waiting periods of three months before the divorce is final in order to give the husband time to reconsider his decision. On 30 July 2019, the Parliament of India declared the practice of Triple Talaq illegal and unconstitutional and made it a punishable act from 1 August 2019. However, Muslim men are still allowed to be polygamous and can also give a divorce easily by paying paltry sums. + Right to Privacy ‘The right to life enshrined in Article 21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It therefore includes all those aspects of life which makes ‘a man’s life more meaningful, complete and worth living and right to privacy is one such right. The first time this topic was ever raised was in the case of Kharak Singh y. State of UP where the Supreme Court held that Regulation 236 of UP Police regulation was unconstitutional as it clashed with Article 21 of the Constitution. It was held by the Court that the right to privacy is a part of right to protection of life and personal liberty. Here, the Court had equated privacy to personal liberty.16 d the right to privacy ¥. State of Mi Pradesh , Mathew, J. accepte Govind Madhya Prades! icy is not al : dan ana lena Coe and that the right to privacy is itself a fundamen guaranteed to a citizen have penumbra sis of compelling public interest” fundamental right must be subject fo restriction on the basis i cn ee a » ivacy eae Survei, Sace eae » an unreasonable encroachmer Petson oy, domiciliary visits need not always be an u In bjects and the jimi, "8 urveillance as also the obj lim a character and antecedents of the person subjected 10 se a eee ae tage which the surveillance is made. The right to privacy deals > Right to Internet . f ee are broadly two ideas that make a case forthe recognition of the right to meaningfuy Aces, has received much attention from scholars. The first being tha the right to meaningful internet acc. lations with regard to market conditions and dist," bbrought in place if the State chooses to frame regulations wi ai stributa, resources with a view to enable equitable access. This view has roots m bed le 19(1)(@) ang 21 yf, Constitution. The second advocates that the right to internet be recognized by ate in the form of stay, ‘Sui generis right to internet access from existing international human rights obligations. In its recent judgment in Faheema Shirin v. State of Kerala, the High court has recognized thay mobi Phones and intemet access through it are part and parcel of the day to day life. The court looked at resol. adopted by the United Nations Human Rights Council and the General Assembly which Uunequivocally pein the fact that how internet access plays a key role in accessing information and its close link to education in, Knowledge. The court took the view that the right to be able to access the internet has been read iniy the fundamental right to life and liberty, as well as privacy under Article 21. The court added thar it constitutes a, essential part of the infrastructure of freedom of speech and expression. ‘The meaningful exercise of the right to freedom of speech and expression over the medium of inteme: « Gependen, invariably and inextricably, upon the access tothe available infrastructure, Infrastructure in tum degen jon Social and economic factors such as the distribution of resources: the Policies of the State and is intervention in the nature of regulation of resources, ‘ — Right to Euathanasia tal rig Nhig, he my, Patient consents to death) that would attract ind involuntar ) ld attract Exception 5 to Section 300. Cases of hon-voluntary and involunt : and i ny Cuthanasia would be struck by proviso one 4 lo Se Indias also very clear ont re of asia ot 92 of the IPC and thus be Tendered illegal. The aw in it is punishable under the India Penal Cog olde: Right to suicide is Not an available “right” in India ~ (Abetment of suicide of child or *; 1860. Provision of Punishing suicide is meres sections 305 insane person), 3 e of the said Code. Section 309, IPC has been ee a Suicide) and 309 ( (Attempt to commit sucié) * the scanner with 4 ‘tutional Tegard to its constitutionillll Right to life is an important right enshring cateer din Constitui India. It is argued that the ri ‘ution of India on eater nn iS ge er Article 21 includes ee 21 guarantees the right t0 ites e bi lecision of a five to die, ling. eee ariablo its well setled that he aio ys SUSE bench of the Spector the mercy oar v include the “right to die”. The Court held that Ace S¥sitecd by Atticle eneme Court in Gian ria Atticle 2 Personal liberty” and by no stretch of the imagination cn 'S a provision ‘aN OXtiy i ‘cle 21 of the Constitution does ™ | } ° Suarantecing “4 ion of Hite a? io '& “protection o "OF life be read into it In existing resi”[Fundamental Rights and Directive Principles — under the Indian Medical Council Act, 1956 also incidentally deals with the issue at hand Under accu Medical Council of India has amended the code ot medical ethies for medical practitioners ‘Thee under the act of euthanasia has been classified as unethical except in cases where the life support system used only t0 continue the cardio-pulmonary actions of the body, In such eases, subject to the verification be the term of doctors, life support system may be removed. my + Right to Education [7] Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine, Thus, this provision mikes only elementary education a Fundamental Right and not higher or professional education. ‘This provision was added by the 86th Constitutional Amendment Act of 2002. This amendment is a major milestone in the country’s aim to achieve ‘Education for All’, The government described this step as ‘the dawn, of the second revolution in the chapter of citizen's rights’ Even before this amendment, the Constitution contained provision for free and compulsory education for children under Article 45 in Part-IV. However, being a directive principle, it was not enforceable by the courts Now, there is scope for judicial intervention in this regard. This amendment changed the subject matter of Article 45 in directive principles. It now reads’ The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years’. It also added a new fundamental duty under Article 51 A that reads ‘It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years.” In 1993 itself, the Supreme Court recognized a Fur damental Right to primary education in the right to life under Article 21. It held that every child or citizen of this country has a right to free education until he completes the age of 14 years. Thereafter, his right to education is subject to the limits of economic capacity and development of the state. In this judgment, the Court overruled its earlier judgment (1992) which declared that there was a fundamental right to education up to any level including professional education like medicine and engineering. —> Protection against Arrest and Detention Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely punitive and preventive. Punitive detention is to punish a person for an offense committed by him after tial and conviction in a court. Prevention detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offense but to prevent him from committing, an offense in the near future. Thus, preventive detention is only a precautionary measure and based on suspicion (a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law : (@ Right to be informed of the grounds of arrest Right to consult and be defended by a legal practitioner (iii) Right to be produced before a magistrate within 24 hours, excluding the joumney time. (iv) Right to be released after 24 hours unless the magistrate authorities further detention. These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law. ‘cham Constituton (Eng.) - 2022 / 3oS Indian Constitution | inces and the classes of cases jn (b) Article 22 also authorises the Parliament to prescribe (a) the circumstat which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board; (b) the maximum period for which a perso? can be detained in any classes of cases under a preventive detention law; and (c) the procedure 10 be followed by an advisory board in an inquiry. ‘The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues, —> Prohibition of Traffic in Human Beings and Forced labour + Prohibition of Employment of Children in Factories, etc + Child Labour Amendment (2016) ~» Prohibition of Traffic in Human Beings and Forced labour ms of forced labour: ‘Anicle 28 prohibits traffic in human beings, begar (Forced labour) and other similar for ‘Any contravention of this provision shall be an offense punishable in ‘accordance with lav. This right is available to both citizens and non-citizens. It protects the individual not only against the State but also against private “The expression ‘traffic in human beings’ incl omen and children Jude (a) selling and buying of men, w‘ Tike goods; (6) immoral traffic in women and children, including prostitution; (c) devadasis; and (d) slavery. To ‘punish these acts, the Parliament has made the Immoral Trafic (Prevention) Act, 1956. "The term “begar’ means compulsory work without remuneration. Article 23 also provides for an exception to this provision. It permits the Site to impose compulsory service for public purpose for example, military ovce or sacral service, for which itis not bound to pay. However, in imposing such service the State is not permitted to make any discrimination on grounds only of religion, race, “5 Prohibition of Employment of Children in Factories, ete. [Anicle 24 prohibits the employment of children below the age of 14 years in any factory » mine oF other hazardous actives like consiruction work or railway. But it does not prohibit their employment in any harmless ‘or innocent work. + Child Labour Amendment (2016) ‘The child labour amendment act prohibits the employment of adolescents (14 to 18 years of age) in certain hazardous occupation and processes. The Amendment Act also introduces more stringent punishment for the offenders. It is an imprisonment of 6 months to 2 years, o fine of Rs 20,000 to 50,000 or both. In case of caste or class. repeated offenses, the imprisonment is of | year to 3 years — Freedom of Conscience and Free Profession, Practice and Propagation of Religion + Freedom to Manage Religious Affairs + Freedom from Taxation for Promotion of a Religion + Freedom from Attending Religious Instruction > _— of Conscience and Free Profession, Practice and Propagation of Religion ticle 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess. practice and propagate religion. The implication of these are he to Treely Pe