Fundamental Rights

Fundamental rights are enshrined in part III of indian constitution. Articles from 12 to 35 deals with these rights. 

These rights were derived from constitution of USA (I,e Bill of Rights) . The part III of indian constitution is also called as Magna Carta of India. Magna Carta is the charter of rights issued by King John of England in 1215,under pressure from the barons(this is the first document relating to the fundamental rights of citizens).  These were introduced in indian constitution on recommendation of sawran sing committee.

Article 12: this article give us wider definition of state. According to this article state include;

Government and parliament of India,same organs of state,all local authorities,all authorities that is statutory or non-statutory authorities like ONGC,LIC and SAIL etc.

Article 13:  It provides for judicial review,it declares all laws that are inconsistent or opposite of the fundamental rights shall be void. 

Right to equality (articles 14to 18):

Article 14: Equality before law* and Equal protection of law: these rights are present to all citizens, foreigners and legal persons (I,e statutory corporation, companies etc). Equality befor law(ebl)is of british origin and equal protection of law (epl) is of American.

Ebl means absence of any special privilege in favour of any person, no person is above law and equal subjection of all persons to ordinary law of land

Epl means similar application of the same laws to all persons who are similar situated, equality of treatment under equal condition.

Exception:

Under article 361 the president of india and Governors of states has following immunity

1. During their term of office,no criminal proceeding can be initiated or continued, no civil proceeding in any court in respect of any act done by them in their personal capacity whether before or after they entered their office, until expiration of two months next after notice has been delivered to them.

2. Article 361-A: the article says that no civil or criminal proceeding shall be liable on any person regarding the publication in newspaper (or by radio or tv) of a substantially true report of proceeding of either house of parliament or legislature of state.

3. Article 105. No MP shall be liable to any proceeding in any court in respect of any thing said or any vote given by him by parliament or any committee there of. Same power is also enjoyed by MLAs under Article 194.

4. Article 31-c. It provides that laws made by state for implementation of the DPSP contained in clause b or c of Article 39 can not be challenged on the ground that they are violation of Article 14.

5. The foreign sovereign (rulers), ambassadors and diplomats enjoy immunity from criminal and civil proceedings.

Article 15. Prohibition of discrimination on grounds only of religion ,race,caste, sex or place of birth.

Exceptions.

The following are exceptions of this article

1. Special provision for women and children

2.provision for upliftment of any socially and educationally backward classes of citizens.

3. Admission reservation in educational institutions including iits and iims for schedule caste, schedule tribes and obcs. This provision is also liable in case of private institutions. (This provision was added by 93rd amendment act 2005. In order to give effect to this provision the center enacted the central educational institutions (reservation in admission) act 2006.currently 27% quota of seats are reserved for these classes.

Article 16. Equality of opportunity in matters of public employment.

Therefore it abolish all kind of discrimination in matters of employment or office under the state on grounds only religion, race, caste, sex, descent, place of birth or residence.

Exception.

1. Certain posts may be reserved for resident of particular state.

2. A law can provide that the incumbent of an office related to religious institution or members of its governing body should belong to particular religion.

3. Reservation of seats for schedule casts and schedule tribes.

Article 17 Abolition of untouchability and prohibition of its practice.

The term untouchability has not been defined in the constitution or in the untouchability (offence) act 1955 (amended and renamed in 1976 as the protection of civil rights act 1955, to enlarge its scope ) ,but Mysore High court its not article 17 does not provide untouchability in its literal or  grammatical meaning but its practice I,e social disability imposed on certain classes of persons by reason of their birth in certain castes.

Article 18 Abolition of titles except military and academic.

1. It prohibits state from conferring any title (except military and academic) on any body whether a citizen or foreigner.

2. Prohibits citizens accepting titles from foreign states.

3. It prohibits citizens or foreigner holding any office of trust or profit under state to accept any present, emolument or office from or under any foreign state witha out consent of president.

Right to Freedom (19- 22 )

Article 19.

This  article contains six rights ,granted against state action and not  against private action. These rights are only available to citizen. The provision of this article are as follows

1. Protection of freedom of speech and expression

2. Freedom of assembly

3.Freedom to form association

4.Freedom of movement

5.Freedom of residency in any part of Indian territory

6.Freedom to take any profession

Article 20 : protection in respect of conviction for offences ,thus this article protect against arbitrary and excessive punishment. This article is for all citizen,legal persons and foreigner

It contains three provisions in that direction:

1 No ex-post-facto :No person shall be , convicted of any offence except for violation of a law in force at the time of the commission of the act.

2 No double jeopardy: No person shall be prosecuted and punished for same offence more than once.

3 No self-incrimination:  No person shall be considered as witness against himself.

Article 21 : protection of life and personal liberty.

Right to education I,e article 21A was made part of this article by 86th constitutional amendment act of 2002.

Article 22 ; protection against arrest and detention in certain cases 

RIGHT AGAINST EXPLOITATION 23-24

Article 23 : protection of traffic in human beings and forced labour.

Article 24: prohibition of employment of children in factories etc. This article prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activity like construction work .

Right to freedom of Religion (25-28)

Article 25 : Freedom of conscience, free profession, practice and propagation of religion.

Article 26 : freedom to manage Religious affairs.

According to this article religious dominations or section enjoy, 

Right to establishment and maintain institution for religious and charitable purposes, manage its own affairs in matters of religion and acquire movable or immovable property.

Article 27 : freedom from taxation for promotion of a religion.

This means state should not spend the public money collected by way of tax for promotion or maintenance of any particular religion.

Article 28 : freedom from attending religious instructions.

I,e no religious instructions shall be provided in any educational institute wholly maintained out of state fund.

Cultural and educational rights ( 29-30).

Article 29: protection of  language, script and culture of minorities. 

This article says any sanction of citizens residing in any part of country have distinct language, script or culture of its own shall have right to conserve the same.

Article 30 : Right of Minorities to establish and administrator educational institutions.

Under provision of this article, minority section (religious or population) can establish educational institutions and administrator them and provide education in their own language.

Note:

Article 31st which dealt with acquisition of property had been deleted as fundamental right, it is now a legal right under article 300A,in part xii .it was done by 44th amendment act 1978.

Article 32 :Right to constitutional remedies.

Article 32 gives right to move to supreme court and Article 226 gives right to move to High court ,in case of violation of the fundamental rights. BR Ambedkar (father of constitution) called article 32 as heart and soul of the construction . Both supreme court as well as High court can issue writs of various kinds ,if fundamental rights are violated.

Types of writs;

1.Habeas corpus : this means'' to have the body ,''

This is an order issued by the court to release a person who has been detained unlawfully.

2.Mandamus :''we command ,'' its command to a public official asking him to perform his official duties that he has failed or refused.

3.prohibition: mens ''to forbid ''issued by high court to lower court ,to prevent the latter from exceeding its jurisdiction. Its issued only against judicial and quasi-judicial authorities.

4.Certiorari:means ''to be certified or to be informed ''

Its issued by a higher court to a lower court either to transfer a case pending with the latter to itself or to squash the order of latter in a case.

5.Quo-warranto: means ''what is your authority ''

To restrain a person from holding a public office to which he is not entitled.

Article 33 : it abrogate fundamental rights of the members of armed forces, intelligence agencies and analogous forces.

Article 34 : provides for the restrictions on fundamental rights while martial law I,e military rule is in force in any area within the territory of india.

Article 35 : this article make uniformity through out the country .Under provisions of this article , in certain matters only parliament can make laws and state legislature has no role.

The articles where the parliament shall and state legislature shall not make laws are 

Articles 16,17,23,32,33and 34.

Note; 

Fundamental rights are not permanent, can be suspended during national emergency except articles 19,20,21. Fundamental rights are not absolute but qualified.