(FUNDAMENTAL RIGHTS)
PART - 3

List of the Articles 12-35

12. Definition of State
13. laws inconsistent with or in derogation of the Fundamental Rights.

Right to Equality

14. Equality before law
15. Prohibition of discrimination on grounds of religion, race, caste, sex or birth place
16. Equality of opportunity in matters of public employment
17. Abolition of untouchability
18. Abolition of titles

Right to Freedom

19. Protection of certain rights regarding freedom of speech, etc.
20. Protection in respect of conviction for offences
21. Protection of life and personal liberty
21A. Right to education
22. Protection against arrest and detention in certain cases

Right Against Exploitation

23. Prohibition of traffic in human being and forced labour
24. Prohibition of employment of children in factories, etc.

Right to Freedom of Religion

25. Freedom of conscience and free profession, practice and propagation of religion
26. Freedom to manage religious affair
27. Freedom as to payment of taxes for promotion of any particular religion
28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions

Cultural and Educational Rights

29. Protection of interests of minorities
30. Right of minorities to establish and administer educational institutions
31. Compulsory acquisition of property - (Repealed)

Saving of Certain Laws

31A. Saving of laws providing for acquisition of estates, etc.
31B. Validation of certain Acts and Regulations
31C. Saving of laws giving effect to certain directive principles
31D. Saving of laws in respect of anti-national activities - (Repealed)

Right to Constitutional Remedies

32. Remedies for enforcement of rights conferred by this part
32A. Constitutional validity of State laws not to be considered in proceedings under Article 32 - (Repealed)
33. Power of Parliament to modify the rights conferred by this part in their application to forces, etc.
34. Restriction on rights conferred by this part while martial law is in force in any area
35. Legislation to give effect to the provisions of this part

Article 14 - Equality before Law and Equal Protection of Laws

There is not a fundamental difference in the motive, motive is to upheld laws and the natural justice. However, there is a fundamental difference in the way they approach it.

• State shall not deny to any person (means legal person and includes citizen, foreigners, corporation, companies, registered societies) equality before the law or the equal protection of the laws within the territory of India. (Rule of Law: basic feature of Indian Constitution, hence no amendment).
• Equality Before Law: (a) Absence of any special privileges, (b) all persons are subjected to the same ordinary law of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high or low, official or non-official) is above the law.

So, these are the provisions of Equality before Law and it is also called as Rule of law.

Equal Protection of Law

Positive concept from USA and it deals with equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws. Similar application of the same laws to all persons who are similarly situated.

Exceptions

• President and Governor (Article - 361)
• not answerable to any court for the exercise of the powers and duties of their office
• no criminal proceedings or arrest warrant against them while they are in office
• 2 months notice before civil proceeding

Similarly, no MP/MLA shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105 and Article194). Foreign diplomats, U.N. and its agencies: They are immune from criminal and civil proceedings.

Article - 15

State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or birth place. 'Discrimination' means to make an adverse distinction with regard to' or 'to distinguish unfavourably from others' while 'only' word infers that discrimination on other grounds is not prohibited.

No citizen shall be subjected to any disability, liability, restriction on grounds only of religion, reace, caste, sex, or birth place with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.

Exceptions

• Special provision for women and childlen. For e.g., reservation of seats for women in local bodies or right to education.
• The state is permitted to make any special provision for the advancement of any socially and any educationally backward classes of citizens or foe the SCs and STs. For example, reservation of seats or fee concessions in public educational institutions.
• The state is empowered to make any special provision for the advancement of any SEBC/SCs/STs regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.

Article - 16: Equality of Opportunity in Public Employment

[1]. It deals with 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, birth place, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

[3]. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that state or Union territory prior to such employment or appointment.

[4]. Provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State, is not adequate represented in the services under the State.

[4A]. Nothing in this article shall prevent the State from taking any provision for reservation in matters of promotion (77th CAA), with consequential seniority (85th CAA), to any class or classes of posts in the services under State in favour of the SCs and Sts which, in the opinion of the State, are not adequately represented in the services under the State.

[4B]. Carry Forward Rules: State can consider any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause [4] or [4A] as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. (81st CAA, 2000).

In Indra Sawhney Vs. Union of India, (1992) after report from Mandal Commission, Supreme Court held that reservation shall not exceed 50% except in some extra ordinary situation. This rule will need to be applied every year. But in some states, it exceeds that limit. For example - The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69% reservation.

Article - 17 : Abolition of Untouchability

Absolute right (can't be suspended at any time, available against private individual also, no exception). Untouchability is not be taken literally but the practice as it had developed historically in the country, imposing social restriction on certain classes of persons by reason of their birth in certain castes.

A person convicted of the offence of 'untouchability' is disqualified for election to the Parliament or state legislature. Under the Protection of Civil Rights Act (1955), the offences committed on the ground of untouchability are as follows:

• Preventing any person from entering any place of public worship or from worshipping therein;
• justifying untouchability on traditional, religious, philosophical or other grounds;
• denying access to any shop, hotel or place of public entertainment;
• insulting a person belonging to scheduled caste on the ground of untouchability;
• refusing to admit persons in hospitals, educational institutions or hostels established for public benefit;
• preaching untouchability directly or indirectly; and
• refusing to sell goods or render services to any person.

Article - 18 : Abolition of Titles

It abolishes titles and makes four provisions in that regards:

1. State can't confer any title (except a military or academic distinction) on anyone.
2. No citizen of India shall accept any title from any foreign state.
3. A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
4. No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.

Basically it is dome to counter the colonial mentality, hereditary titles of nobility like Maharaja, Raja Saheb, Raj Bahadur, etc, are banned because these are against the principle of equal status of all. National awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri, were discontinued by Morarji Desai government from 1977 to 1980. However, In 1996, Supreme Court ruled that they are given on the basis of merit and do not amount to 'titles' within the meaning of Article 18.

Right to Freedom

Article 19 provides 6 rights like 19(1)(a) to 19(1)(g)(f was deleted by 44th CAA, 1978). They are available to individuals and shareholders in a company (citizens) only against state.

(a) Right to freedom of speech and expression: Every citizen can express his belief and opinions by almost any means possible. Broad interpretation and includes: Propagate other's view, press, commercial advertisements, telecasting, RTI, silence, peaceful demonstration; freedom against strike, pre censorship, telephonic tapping, bandh etc.

(b) Right to assemble peaceably and without arms; public meetings, demonstrations and take out processions, no right to strike.

• Under Section 144 of CrPC, a magistrate can restrain an assembly if any unlawful activity is suspected.
• Under Section 141 of IPC, as assembly of 5 or more persons becomes unlawful it the object is (a) to resist the execution of any law or legal process; (b) to forcibly occupy the property of some person; (c) to do an illegal act; and (e) to threaten the government or its officials on exercise lawful powers.

(c) Right to form association or union or co-operative societies [ 97th CAA IXB 43B 19(1)(c) ]: includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions etc. Start and continue. Also negative right.

• The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out.

(d) To move freely throughout the territory of India: throughout the territory of the country, inter or intra state. Indian citizen and not state citizen. Thus, the purpose is to promote national feeling and not parochialism.

• Prostitutes and AIDS
• The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.
• Internal Travel (given by Article 19) External Travel (given by Article 21)

(e) To reside and settle in any part of the territory of India: 2 dimensions: (a) the right to reside in any part of the country, which means to stay at any place temporarily, and (b) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently. Similarly reasonable restrictions (regulation of prostitutes and habitual offenders), complementary to freedom of movement.

(g) To practice any profession, or to carry on any occupation, trade or business: includes all the means of earning one's livelihood. Not include trade which are immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc). The State can absolutely prohibit these or regulate them through licensing.

Reasonable Restriction

GENERAL : SUI of India, security, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.

SPECIFIC : Movement and residence - interest of general public and STs; Trade, business - professional or technical qualifications and partial or complete monopoly of state over means of production or service delivery.