UPSC Indian Polity and Civics Fundamental Rights and Duties Notes - Fundamental Rights, Fundamental Duties and Directive Principles of State Policy

 

FUNDAMENTAL RIGHTS FUNDAMENTAL DUTIES AND DIRECTIVE PRINCIPLES OF STATE POLICY

 

Introduction

 

Fundamental Rights are defined as Basic human freedoms, which every Indian citizen Bas to enjoy for a proper and harmonious development of personality. It contains six rights. Fundamentals Rights are justiciable and are protected by the judiciary. The Constitution seeks to strike a balance between individual freedom and social interests through the Fundamental Duties. To make fundamental right and duties of citizens of India safe and effective, there are certain guidelines for the governance of the country given in the Directive Principles of state policy.

 

 

Fundamental Rights (Part III)

 

Important Feature

• Articles 12-35 of the Constitution deal with fundamental rights. Constitution does not define fundamental rights but says that they are fundamental and superior to ordinary laws. Fundamental rights cannot be altered except with constitutional amendment.
• Fundamental Rights incorporate provisions of "American Bill of Rights" and are very elaborate and comprehensive. They provide for absolute rights with judiciary having powers to impose limitations. Legislature can impose limitations on fundamental rights during national emergency.
• These can be negative obligations on the state not to encroach on individual liberty in its activities.
• They promote political democracy and prevent authoritative rule.
• In USA legislature is competent to interfere with individual rights if they endanger safety of the state and collective interests.
• Originally, the Constitution classifies Fundamental Rights under 7 groups.
• Now there are only 6 groups as Right to Property has been eliminated by the 44th Amendment Act, 1978 and transposed to a new Article - Article 300 A, which is outside Part-111 of the Constitution and has been labelled in as 'Chapter IV' of Part XII - but that is not a fundamental right.
• Fundamental rights under Articles 15, 16, 19, 29 & 30 are applicable to Indian citizens.
• Fundamental rights under Articles 14, 20, 21, 23, 25, 26, 27 and 28 are available to all resident of India both citizens and foreigner.
• Some fundamental rights are negatively worded as prohibitions on the State like Articles - 14, 15(1), 16(2), 18(1), 20, 22(1) and 28(1)
• Fundamental rights which impose absolute limitations upon the legislative power cannot be regulated by the legislature are covered by Articles 15, 17, 18, 20 and 24.
• All fundamental rights are guaranteed against state action. If Rights under Article 19 and Article 21 are violated by an individual, legal remedies but not Constitutional remedies are available.
• Article 12 defines the State which includes:

1. Government and Indian parliament i.e. executive and Legislature of the Union.
2. Government and legislature of the states.
3. All local and other authorities within the territory of India.
4. All local and other authorities under the control of GOI.

• Article 13 confers the power of judicial review to the courts of all legislative acts.
• Supreme Court of India and State High Courts have mil power under Article 32 and 226. They can declare a law unconstitutional if it is inconsistent with Part III of the Constitution.
• Power of judicial review makes the constitution legalistic.

 

ARTICLE-14: Equality before law/Equal protection of Laws

 

• Equality before law and equal protection of laws are different.

Equality Before Law	Equal Protection of Law
Negative concept	Positive concept
Absence of special privilege due to birth, creed or like in the favour of any person. There is equal treatment before law.	Right to equality of treatment in similar circumstances.
Dicey's concept of rule of law.	Treated as due process of law.
Established law in England.	An American concept.

 

 

'Rule of Law' is the "Basic Feature" of the Constitution which cannot be destroyed even by constitutional amendment under Article 368.

 

Exception to the Rule of Law

 

Art	Explanation
361	Immunity to the President of India and State Governors.
361 (1)	President of India and state Governors are not answerable to any court for exercise and performance of their powers and duties.
361 (2)	No criminal proceedings can be initiated against President of India and state Governors during their term of office.
361 (4)	No civil proceeding can be instituted during the term of office in respect of any act done by President of India and State Governor in their personal capacity before or after they enter office till 2 months after the notice has been delivered to the President.
	The foreign ambassadors and diplomats enjoy immunity from criminal and civil proceedings. The UNO and its agencies enjoy the diplomatic immunity.

 

• Concept of equality provides protection against arbitrariness.
• Concept of equality promotes natural justice.
• Right to Equality incorporates Equal pay for equal. Work [Art 39(d)]. This is not a fundamental right but a constitutional goal under Articles 14, 16 and 39(d).

 

ARTICLE 15: Prohibition of discrimination

 

15 (1)	No discrimination on grounds of religion, race, caste, sex or place of birth can be made. It applies to matters under the control of the state.
15 (2)	Prohibits discrimination at public places (shops, public hotels, restaurants, well, tanks, bathing, ghats etc.) and applies both to state and private individual.
15 (3)	Provisions for protection of women & children.
15 (4)	Provisions to protect interests of backward classes, 1st amendment Act, 1951.

 

ARTICLE 16: Equality of opportunity in public employment

 

16 (1) & (2)	No discrimination in public employment on grounds of religion, race, caste, sex, descent, place of birth or residence.
16 (3)	Residence within a state is a qualification for appointment for any government post.
16 (4)	For reservation of posts in govt. jobs in favour of any backward class.
16 (5)	Provides for the incumbent of any office, in connection with the affairs of any religious or denominational institution or any member of the governing body shall be a person professing a particular religion or belonging to a particular denomination is not a violation of the Constitution.

 

ARTICLE 17 & 18: Abolition of Untouchability and Titles

 

17	Abolition of Untouchability. The parliament has passed protection of civil rights act, 1955 to abolish Untouchability.
18	Abolition of Titles except military and academic titles i.e, Bharat Ratna, Padma Vibhushan, Padma Shri and National Awards.

 

ARTICLE 19

 

Provides for 6 fundamental rights in the nature of freedoms. These are guaranteed to Indian citizens with reasonable restrictions.

                      

Freedom		Restrictions imposed
19 (1) (a)	Speech & Expression   Freedom of press & Media. People?s Right to Know	19 (2) 8 Grounds	Integrity and Sovereignty of India
			Security of the state
			Friendly relations with foreign states
			Public order
			Decency and morality
			Contempt of court
			Defamation
			Incitement to an offence
19 (1) (b)	Assembly	19 (3) 3 Grounds	Assembly must be peaceful.
			Assembly must be unarmed
			Restriction under Art 19 (3): Sovereignty and integrity of India Public order
19 (1) (c)	Forming Association	19 (4) 3 Grounds	Sovereignty and integrity of India
			Public order
			morality
19 (1) (d)	Freedom of Movement	19 (5) 2 Grounds	Interest of general public
			Protection of interests of any Scheduled Tribe
19 (1) (e)	Freedom of Residence	19 (5) 2 Grounds	Interest of general public
			Protection of interests of Scheduled Tribe.
19 (1) (f)	Freedom of Profession, Occupation, Trade or Business	19 (6)	By the state making any law relating to: Protecting Public interest.
			Establishing professional/technical qualifications for a profession/ occupation, trade or business.
			Enabling state to conduct any trade or business excluding citizens wholly or partially

 

ARTICLE 20: Protection in respect of conviction for offences

 

• Provides 3 safeguards to pe»sons accused of crimes:
• Article 20 (I): Ex-Post facto law - no person shall be convicted of any offence except for the violation of 'law in force'. Such protection does not apply in case of Preventive Detention.
• Article 20 (2): Double Jeopardy - no person shall be prosecuted and punished for the same offence more than once.
• Article 20 (3): Prohibition against Self Incrimination - no person accused of an offence shall be compelled to be a witness against himself.

 

ARTICLE 21 and 22: Protection of Life and Personal Liberty

 

• Constitution provides for a two fold guarantee:
• No person shall be deprived of his life and personal liberty except according to the law (Article 21).
• Safeguards against arbitrary arrest and detention (Article 22).
• Prior to Menaka Gandhi Case (1978), Article 21 guaranteed the Right to Life and Liberty against arbitrary action of the executive. Article 21 now protects Right to Life and Personal Liberty even from legislative action. It includes -
• Right to live with human dignity.
• Right to livelihood.
• Right to privacy.
• Right to shelter.
• Right to health and Medical Assistance.
• Right to free legal aid.
• Right against solitary confinement.
• Available to 'citizens' and 'non-citizens'.
• Right to Education is a Fundamental Right under Article 21-A (86th Constitutional Amendment 2002).
• Provision of Compensation if Article 21 is violated.
• Right to Death is not a fundamental right under Article 21.

 

ARTICLE 22

 

Article 22 grants protection to persons who are arrested or

detained. Detention is of two types - punitive and preventive. Punitive Detention is to punish a person for an offence committed by him after trial and conviction in a Court. Preventive means detention of a person without trial and conviction by a person for a past offence, but to prevent him from committing an offence in the near future.

• It includes
• Right to be informed about the ground of arrest.
• Right to be defended by a lawyer of his own choice.
• Right to be produced before a magistrate within 24 hours.
• No detention beyond 24 hrs except by order of the magistrate.

No law providing for preventive detention shall authorize the detention of a person for a longer period than 3 months unless - an advisory board consisting of persons who are qualified to be appointed as judge of a High Court has reported before the expiration of the said period of 3 months that there is in its option sufficient cause for such detention.

• This right is not available to an enemy, an alien and a person arrested and detained under Preventive Detention.

 

ARTICLE 23 and 24: Right against Exploitation

 

• Article 23: protects individual against actions of the state and private citizens. This right is available to both citizens and non-citizens.
• Article 23 (i): prohibits traffic in human beings and forced labour,
• Article 23(ii): nothing in this article shall prevent state from imposing compulsory services for public purpose and in imposing such service the state shall not make any discrimination on grounds of religion, race, caste or class or any of them.
• Article 24: prohibits employment of children below 14 years of age in a dangerous occupation, factory and mines.

 

ARTICLE 25 and 28: Right to Freedom of Religion

 

• India, under the Constitution, is a "Secular State", i.e. a state which observes an attitude of neutrality and impartiality towards all religions.
• There is no "State religion" in India. State will not establish a religion of its own, nor will it patronize any religion. This is implicit from:
• State will not compel any citizen to pay any tax for promotion or maintenance of a religion or religious institution (Article 27).
• No religious instruction shall be provided in an educational institution run completely by government funds.
• Religious instruction can be imparted in educational institutions recognized by or receiving aid from the state, no person attending such institution shall be compelled to receive such religious instruction (Art 28).
• Article 25 guaranteed the Freedom of Conscience an Freedom to Profess, Practice and Propagate person religion
• Right to 'Propagate' under Article 25 gives the right only to disseminate the tenets of religion but it would a include the Right to Convert.
• States have made it a penal offence to convert or attempt to convert a person by means of "force, fraud or allurement”.
• Volunteer conversion with free consent is allowed.
• Article 26 provides rights to every religious group c
• denominations :-
• To establish and maintain institutions for religious and charitable purposes.
• To manage its own religious affairs.
• To own and acquire movable and immovable property.                               
• To administer such property in accordance with national laws.

 

Cultural and Educational Rights

 

·             

 

• Article 29 (1) guarantees to citizens having a distinct language, script or culture of its own, the right to conserve the same.
• Article 30 provides for the right to religious and linguistic minorities to establish and maintain educational institution to conserve their language, script or culture.
• Article 30 (2) prohibits the state from discriminating against any educational institution in grant of aid. No citizen shall be denied admission to educational institutions maintained by the state or receiving aid out of state funds on grounds of religion, race, caste and language. It is compulsory for unaided private institutions to give reservations to backward classes. Minority institutions are exempted from such obligation.
• Article 29 applies only to citizens.
• Article 30 applies to both citizens and non-citizens.

 

ARTICLE 31-A, 31-B & 31-C

 

Art	Relates To	Amendment
31 A	Facilitate agrarian reforms	1st Amendment, 1951
31 B	None of the acts mentioned in 9th Schedule shall be deemed to be void on the ground that they are inconsistent with Part III of the Constitution. Legislature is competent to amend and repeal these acts.	1st Amendment, 1951
31 C	Empowers legislature to enact laws for implementing Directive Principles of State Policy under Articles 39 (b) & (c). Only Articles 39(b) & (c) have over-riding effect over fundamental rights.	25th Amendment, 1971

 

 

• Supreme Court has viewed that 9th Schedule must come under Judicial Review. Sates have passed acts regarding reservations, and placed them under Schedule 9 to make them non-justiciable.
• Right to Property which was a fundamental right under Article 31, was repealed by 44th Constitutional Amendment, 1978. It was made a Constitutional Right under ordinary law under Article 300-A.

 

ARTICLE 32: Right to Constitutional Remedies

 

• It provides for machinery for the effective enforcement of Fundamental Rights.
• It empowers a person to approach the Supreme Court directly for the enforcement of his Fundamental Rights.
• Right to Constitutional Remedies cannot be suspended except otherwise provided in the Constitution, i.e. during Emergency.
• Ambedkar calls this article "the very soul and heart of the Constitution."

 

Writs Under Article 32
Habeas corpus means ?to produce the body of	Order to the person who has detained another to produce the detainee before the court. This is issued to let the court know the grounds of confinement. This protects individual liberty. It is a powerful safeguard against arbitrary Acts not only of private individual but also of the Executive.
Mandamus means ?a Command?	Commands a public or quasi-public legal person to perform his duty. The writ of mandamus can be issued by the court to enforce Fundamental Rights: whenever a public officer or a Government has committed an Act violating a person's Fundamental Rights, the court can restrain that authority from enforcing such orders or committing such an act.
Prohibition means ?to forbid?	Issued by Supreme Court or High Court to a lower court forbidding it continue proceedings in a case beyond its jurisdiction or exercise jurisdiction which is not vested with it legally. The Supreme Court can issue the writ only where a Fundamental Right is affected because of jurisdictional defect in their proceedings.
Certiorari means ?to be certified?	Issued to a lower court after a case has 'to be certified'     been decided by it quashing the decision or order. It ensures that the jurisdiction of an inferior court or tribunals is properly exercised. While prohibition is available during the pendency of the proceedings and before the order is made, certiorari can be issued only after the order has been made under similar circumstances.
	Issued by the court to enquire into the legality of claim which a person asserts to a public office. The writ of quo warranto enables the public to see that a public office is not usurped by an unlawful claimant.

 

 

 

 

• Article 226 gives power to High Court to issue writs.
• Article 32 is used for the enforcement of fundamental rights only. Article 226 is helpful for "any other purpose" also. Therefore the power of the High Court is wider under Article 226 than the power conferred on Supreme Court under Article 32.
• Courts also issue Injunction, which is not mentioned in the Constitution. It is issued against private persons.
• Public Interest Litigation (PIL)

The traditional rule to apply for redressal of breach of fundamental rights. The person whose right has been breached can approach the court (locus standi).

• Public Interest Litigation (PIL), borrowed from USA, is being applied for achieving larger public interest. Any public-spirited person can go to the court for redressal of breach of fundamental rights.

 

Right to Information

 

The right to information has been granted to citizens under the Information Act passed by the Indian Parliament in 2005.

The Act entitles every citizen to have access to information

Controlled by public authorities of both the Union and the State governments. The main objective of this right is to make the government open, transparent, responsive and accountable to the people. According to this law people can seek any information from the government, which is duty bound to provide the requisite information within a specified period of 30 days. If the concerned authorities do not provide correct and timely information, complaint can be lodged with the Central Information Commission/State Information Commission. If the requested information is denied to a person, he/she must be informed of the reasons for refusal. It may further be noted that the law does not apply to Jammu and Kashmir, or security agencies like IB, RAW and BSE. The other areas which have been excluded from the jurisdiction of the law include cabinet papers, legal advice relating to decision making, information likely to breach the privileges of the Parliament and state legislatures, etc.

 

Suspension of Fundamental Rights

 

Fundamental rights are not absolute and have limitations

regarding their exercise. The limitations strike a balance between individual liberty and social need.

Article 358 provides that during national emergency, President under Article 352, fundamental freedoms guaranteed by Article 19 are suspended and cannot be revived during emergency. Things done during emergency

cannot be challenged even after it is over.

Article 359 empowers the President to suspend the Right to move a Court for the enforcement of rights conferred by Part III of the Constitution (except Article 20 & 21) during an emergency.

Under Article 358, rights conferred by article 19 are suspended. Suspension under article 359 can only be by an order of the President.

 

Can Fundamental Rights be Amended

 

• Whether fundamental rights are amendable is a matter of controversy.
• In Golaknath case, 1967, Supreme Court questioned the validity of amendments to the Constitution by the parliament. It held the amendments to be invalid.
• 24th Amendment 1971, added word 'Power' to Article 368 and described specifically the power of Parliament to amend the Constitution and laid down procedures.
• This was challenged in Keshavanand Bharati case (1973) in which "Basic Structure" doctrine was established by the Supreme Court. Parliament had the power to amend the Constitution without harming its Basic structure. But as to what forms the basic structure is not clear.
• 42nd Amendment was passed by the parliament in 1976. It was called the "Mini Constitution". It gave unlimited amending powers to the Parliament. The validity of this amendment was tested in Minerva Mills case, 1980. The basic structure of the Constitution has been pronounced by the Supreme Court.
• The Parliament is not authorized to limit the operation of Articles 14, 19 and 21 which form the part of basic structure of the Constitution.

 

 

Directive Principles of the state Policy

 

 

• Contained in Part-IV of the Constitution (Articles 36-51), borrowed from Ireland.
• These are fundamental guidelines in the governance of the country.
• They promote the concept of a welfare state.
• They are classified into 3 categories:
• Socialistic or Welfare Principles: Arts 38, 39, 41-43.
• Gandhian Principles: Arts 40, 43, 46-49
• Liberal - Intellectual Principles: Arts 44 - 45, 50 - 51
• While fundamental rights aim at political freedoms, DPS aim at securing economic and social justice through appropriate state action.
• They impose obligations on the state and give direction to take positive action to promote social welfare.
• These are the ideals to be kept in mind while formulating policy or pass a law.
• Directives are non-justiciable. Courts cannot be approached for their enforcement (Article 37).
• Articles 38 & 39 embody the Jurisprudential doctrine of Distributive Justice".
• 42nd Amendment Act (1976) added Articles 39-A, 43 A, 48-A. Provision for "Creation of Opportunities for healthy development of children" in Articles 39 (A).
• B.R. Ambedkar described the DPs as "Instrumen of Instruction."

 

Art	Relates To
38	Social order based on justice and to minimize inequalities in income, status, facilities and opportunities.
39	Principles of policy to be followed by the State for securing economic justice in the form of: ?   Means of Livelihood to all. ?   Use of resources for common good. ?   Prevention of concentration of wealth. ?   Equal pay for equal work. ?   Protection of workers. ?   Protection of children and youth.
39 A	Equal justice and free legal aid to the poor. Legal aid and speedy trial are fundamental rights under Article 21 of the Constitution available to all prisoners and are enforceable by the courts.
40	Organization of village panchayats.
41	Right to Work, Education and Public assistance in some cases.
42	Just and humane conditions of work.
43	Living wage for workers. Living wage and not minimum wage.
43 A	Participation of workers in management.
44	Uniform civil code.
45	Free and compulsory education for children.
46	Educational and economic interests of SC. ST and weaker sections.
47	Standard of living and improvement in health.
48	Agriculture and animal husbandry.
48 A	Protection of environment, forests and wildlife.
49	Protection of monuments, places and objects of national importance.
50	Separation of judiciary from the executive.
51	Promotion of international peace and security.

 

Directives in other Parts of the Constitutions

 

 

Besides the directives in part IV, there are certain other Directives in the Constitution, also non-Justiciable. These include Article 350 A which calls upon the state to provide adequate facilities for instruction in mother tongue at primary school level to children from linguistic minority groups. Article 351 calls upon the Union to promote the spread and development of Hindi to enable it to become the medium of expression of all the parts of the composite culture of India. Article 335 supports the claims of the Scheduled Castes and Scheduled Tribes to appointments in government service, subject to the maintenance of efficiency of administration.

Fundamental Rights arid Directive Principles: Difference

There is no doubt that both the Fundamental Rights and the Directive Principles of State Policy are important feature of the constitution. However, they differ from each other in certain points.

Differences -

(i) The Fundamental Rights seek to protect the individual from state encroachment and thus they are enforceable; the Directive Principles are aimed at the promotion of the

General welfare of society and they are not enforceable.

(ii) The Fundamental Rights constitute limitations upon State action; The Directive Principles are positive instructions to the government to take steps to establish a just social, economic and political order.

 

 

Fundamental Duties

 

 

Covered under Article 51-A (PART IV A) of the Constitution.                              ;

Added to the Constitution by 42nd amendment, 1976.

Added on the recommendations of "Swaran Singh Committee."

Originally 10 duties, but now increased to 11.

51-A (k) was added by 86th Amendment Act, 2002. (93rd amendment bill).

Borrowed from the Constitution of undivided USSR.

 

Article	Relates to
51 (A) (a)	Abide by the Constitution and respect National Flag and National Anthem.
b	Follow ideals of the freedom struggle.
c	Protect sovereignty & integrity of India.
d	Defend the country and render national services when called upon.
e	Spirit of common brotherhood.
f	Preserve composite culture.
g	Protect natural environment.
h	Develop scientific temper.
i	Safeguard public property.
j	Strive for excellence.
k	Duty of all parents and guardians to send their children in the age group of 6-14 years to school.

 

 

Verma Committee on Fundamental Duties

In 1999, the Verma Committee on Fundamental Duties of the citizens identified and pointed out the legal provisions for the enforcement of certain Fundamental Duties. The following are some of them:

(a) The Prevention of Insults to National Honour Act (1971) prevents disrespect to the Constitution of India, the

National Flag and the National Anthem.

(b) The Indian Penal Code declares the imputations and assertion prejudicial to national integration as punishable offences.

(c)  The Wildlife (protection) Act 1972 prohibits trade in rare and endangered species.

(d) The Representation of People Act (1951) has provided for the disqualification of members of the Parliament or a State Legislature for indulging in corrupt practice of soliciting votes on the ground of religion or promoting enmity between different sections of people on grounds of religion, caste, race and language, etc.