UPSC IAS exam preparation - India's Constitution - Lecture 4

Excellent study material for all civil services aspirants - being learning - Kar ke dikhayenge!

Fundamental Rights - Part 1

[हिंदी में पढ़ें ]

---

1.0 Introduction

The constitution of India seeks to secure the liberty of thought, expression, belief and faith of the people of the country and also gives equality of status and of opportunity, and dignity of individual. With this object, the fundamental rights are introduced.

In the 17th Century, one thought grew in the mind of the political philosopher that "man by birth had certain rights which are universal and inalienable. He could not be deprived of them”. The declaration of American Independence 1776 stated that all men are created equal and that they are endowed by their creator with certain inalienable rights. Life, liberty and the pursuit of happiness are necessary so that human liberty may be preserved, human personality developed and an effective cultural, social and democratic life be promoted.

1.1 Position in England

The constitution of England is unwritten. No code of fundamental rights exists. The doctrine of the sovereignty of Parliament in England does not envisage a real check on the power of the Parliament which is, as a matter of legal theory, free to make any law. The object here is to protect the fundamental rights not on the constitutional guarantee but on public opinion, good sense of the people, strong common law, individual liberty and the parliamentary form of government.

1.2 Position in America

The framers of the American Constitution were apprehensive of tyranny, not only from the executive but also from the legislature. Americans went further to assert that there had to be a law superior to the legislature itself and that only the restraint of such paramount written law could save them from the fears of excesses of absolute power and autocracy which are ingrained in human nature.

1.3 Position in India

As regards India, the Simon Commission and Joint Parliamentary Committee had rejected the idea of enacting declaration of Fundamental Rights on the grounds that abstract declarations are useless. Although the demand of the people was not met by the British Parliament under the Government of India Act 1935, yet the enthusiasm of the people to have such rights in the constitution remained. The recommendation of the Nehru Committee was included in the constitution in 16 May 1946 by the Cabinet Mission.

2.0 Evolution of the concept of Fundamental Rights

The evolution of the concept of Fundamental Rights – the notion that humans have certain inalienable rights – can be traced back to some major historical and political events of the past.

2.1 Bill of Rights (England)

The Bill of Rights is an Act of the British Parliament, passed on 16th December 1689 which lays out certain basic civil rights. This alongwith the Magna Carta, the Petition of Right, the Habeas Corpus Act of 1679 and various other acts, is a basic document of the uncodified British Constitution. The Bill creates separation of powers, limits the powers of the king and queen, enhances the democratic election and bolsters freedom of speech. The Act asserted that certain ancient rights and liberties existed by declaring that 

1. laws should not be dispensed with or suspended without the consent of Parliament;
2. no taxes should be levied without the authority of Parliament;
3. the right to petition the monarch should be without fear of retribution;
4. no standing army may be maintained during peacetime without the consent of Parliament;
5. subjects who are Protestants may bear arms for their defence as permitted by law;
6. the election of members of Parliament should be free;
7. the freedom of speech and debates or proceedings in Parliament should not  be impeached or questioned in any court or place out of Parliament;
8. excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted;
9. jurors should be duly impannelled and returned and jurors in high treason trials should be freeholders;
10. promises of fines or forfeitures before conviction are void;
11. Parliaments should be held frequently.

The Bill of Rights and the Act of Settlement 1701 are still in effect in all Commonwealth realms. After the Perth Agreement in 2011, legislation amending both of them came into effect across the Commonwealth realms on 26th March 2015.

2.2 Bill of Rights (USA)

In the constitution of the United States of America, the Bill of Rights is the name given collectively to the first ten amendments. The Bill of Rights adds certain safeguards of democracy, gives specific guarantees of personal freedoms and rights, puts limits on the Parliament's powers in judicial proceedings and contains explicit declarations that all powers not specifically delegated to the Congress by the Constitution are reserved for the states.

James Madison, a member of the U.S. House of Representatives is widely regarded as the architect of these amendments.

The House approved 17 amendments. Of these 17, the Senate approved 12. Those 12 were sent to the states for approval in August of 1789. Of those 12, 10 were quickly approved (or, ratified). Virginia's legislature became the last to ratify the amendments on December 15, 1791.

These ten amendments form the backbone of the Fundamental Rights in the Constitution of the United States of America. As a consequence of the increase in the number of campus shoot-outs and other violent incidents, the right of the people to keep and bear arms under the second amendment is currently under a lot of debate in America.

2.3 France’s Declaration of the Rights of Man

The declaration of the Rights of Man, approved by the French National Assembly 26th August, 1789 is a fundamental document of the French Revolution and is considered to be a landmark development in the evolution of human and civil rights. The Declaration stated that there are certain rights of man which are natural, unalienable, and sacred which cannot be taken away by any legislative or executive power. The Declaration goes on to proclaim seventeen rights as belonging to his category. Marquis de Lafayette, a French hero of the American Revolutionary War drafted this Declaration after consultations with Thomas Jefferson who was America's Minister to France at that time. 

2.4 Development of the Irish Constitution

The Constitution of Ireland which came into force on 29th December, 1937, guarantees certain fundamental rights and is considered to be another important landmark in the evolution of the concept of Fundamental Rights. These rights are natural human rights and are confirmed and protected by the Constitution. Fifteen fundamental rights are guaranteed by this constitution which include freedom of expression, assembly and association, trial by jury, right to privacy, right to earn a livelihood, freedom to travel, equality before the law, personal liberty etc. Many of these rights are directly reflected in the Indian Constitution.

2.5 Evolution of the concept of Fundamental Rights in India

The origin of the concept of Fundamental Rights in the Indian Constitution can be traced back to the Indian Freedom struggle. The Indian National Congress at its Bombay session in August 1918 demanded the inclusion of declaration of rights of the people of India as the British citizens in the new Government of India Act. The Declaration included, amongst other things, guarantees in regard to equality before the law, protection in respect to liberty, life and property, freedom of speech and press and right of association. Another resolution passed by the Congress in the 1927 Madras Session stated that the declaration of Fundamental Rights should be tha basis of the future Constitution of India. 

The Nehru Report of 1927 consisted of certain fundamental rights which should be available to every citizen. Sections 295 and 297-300 of the Government of India Act of 1935, conferred certain rights and protections on the British subjects in India. 

The Constituent Assembly adopted the Objectives Resolution on 22nd January 1947 which stated that a Constitution shall be drawn up wherein there "shall be guaranteed and secure to all the people of India – justice, social, economical and political; equality of status – of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality". 

The fundamental rights were drafted by the sub-committee of the advisory committee of the Constituent Assembly. The sub-committee was appointed under the Chairmanship of J.B. Kriplani in February 1947. The sub-committee drafted the Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the Committee placed it before the Assembly, which debated and discussed the rights over the course of the following year. The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee. 

Seven fundamental rights were originally provided by the Constitution - right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies.

3.0 FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION 

Article - 12

Definition: In this Part, unless the context otherwise requires, "the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Article - 13

Laws inconsistent with or in derogation of the fundamental rights:

1.All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. 

2.The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause  shall, to the extent of the contravention, be void.

3.In this article, unless the context otherwise requires—

1. "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
2. "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

4.Nothing in this article shall apply to any amendment of this Constitution made under article 368.

Article - 14

Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article - 15

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

1. access to shops, public restaurants, hotels and places of public entertainment; or
2. the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

3. Nothing in this article shall prevent the State from making any special provision for women and children.

4. Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Article - 16

Equality of opportunity in matters of public employment:

1.There  shall be 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, place of birth, 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.Nothing in this article shall prevent the  State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

1. Nothing in this article shall prevent the State from making any provision for reservation 3[in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
2. Nothing in this article shall prevent the State from considering 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 clause (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 fifty percent reservation on total number of vacancies of that year.

5. Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Article - 17

Abolition of Untouchability: "Untouchability’’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability’’ shall be an offence punishable in accordance with law.

Article - 18

Abolition of titles:

1. No title, not being a military or academic distinction, shall be conferred by the State.
2. No citizen of India shall accept any title from any foreign State.
3. No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
4. No person holding any office of profit or trust under the  State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

Article - 19

Protection of certain rights regarding freedom of speech, etc.—

1.All citizens shall have the right—

• to freedom of speech and expression;
• to assemble peaceably and without arms;
• to form associations or unions;
• to move freely throughout the territory of India;
• to reside and settle in any part of the territory of India; and
• to practise any profession, or to carry on any occupation, trade or business.

2. Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

3. Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

4. Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

5. Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

6. Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—

1. the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
2. the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Article - 20

Protection in respect of conviction for offences

1. 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 charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
2. No person shall be prosecuted and punished for the same offence more than once.
3. No person accused of any offence shall be compelled to be a witness against himself.

Article - 21

Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article - 21 A

Right to education

The State shall provide free and Compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

Article - 22

Protection against arrest and detention in certain cases:

1. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

3. Nothing in clauses (1) and (2) shall apply—

1. to any person who for the time being is an enemy alien; or
2. to any person who is arrested or detained under any law providing for preventive detention.

4. No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—

1. an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
2. such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

5. When any person is detained in pursuance of an order made under any law providing for preventive detention, the   authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

6. Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

7. Parliament may by law prescribe —

1. the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
2. the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
3. the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

Article 23

Prohibition of traffic in human beings and forced labour:

1. 1.Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
2. 2.Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Article 24

Prohibition of employment of children in factories, etc

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

Article 25

Freedom of conscience and free profession, practice and propagation of religion

1.Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

2.Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

1. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
2. providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I. The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II. In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Article 26

Freedom to manage religious affairs

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

1. to establish and maintain institutions for religious and charitable purposes;
2. to manage its own affairs in matters of religion;
3. to own and acquire movable and immovable property; and
4. to administer such property in accordance with law.

Article 27

Freedom as to payment of taxes for promotion of any particular religion

No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Article 28

Freedom as to attendance at religious instruction or religious worship in certain educational institutions

1. No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
2. Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
3. No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

Article 29

Protection of interests of minorities:

1. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
2. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30

Right of minorities to establish and administer educational institutions:

1. All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

[(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.]

2. The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

Article 31

[Compulsory acquisition of property.] Rep. By the Constitution (Forty-fourth Amendment) Act, 1978, s. 6 (w.e.f. 20-6-1979).

Article 31A

Saving of laws providing for acquisition of estates, etc:

Notwithstanding anything contained in article 13, no law providing for:

1. the acquisition by the State of any estate or of  any rights therein or the extinguishment or modification of any such rights, or
2. the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
3. the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
4. the extinguishment or modification of any rights of managing agents, secretaries and treasurers,  managing directors,  directors or managers of corporations, or of any voting rights of shareholders thereof, or
5. the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19.

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:]

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

In this article:

1. the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include—

1. i.any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
2. ii.any land held under ryotwari settlement;
3. iii.any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;]

2. the expression ‘‘rights’’, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.]

31B - Validation of certain Acts and Regulations:

Without prejudice to the generality of the provisions contained in article 31 A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

31C - Saving of laws giving effect to certain directive principles:

Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing 5[all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by 6[article 14 or article 19]; 7 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

31D - [Saving of laws in respect of anti-national activities.] Rep.  by the Constitution (Forty-third Amendment) Act, 1977, s.2 (w.e.f. 13-4-1978).

Article 32

Remedies for enforcement of rights conferred by this Part:

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
4. The right guaranteed by this article  shall not be  suspended except as  otherwise provided for by this Constitution.

Article 32A

[Constitutional validity of State laws not to be considered in proceedings under article 32.] Rep. by the Constitution (Forty-third Amendment) Act, 1977, s.3 (w.e.f. 13-4-1978).

Article 33

Power of Parliament to modify the rights conferred by this  Part in their application to Forces, etc.

Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—

1. the members of the Armed Forces; or
2. the members of the Forces charged with the maintenance of public order; or
3. persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
4. persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them

Article 34

Restriction on rights conferred by this Part while martial law is in force in any area:

Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

Article 35

Legislation to give effect to the provisions of this Part -

Notwithstanding anything in this Constitution,—

1. Parliament shall have, and the Legislature of a State shall not have, power to make laws—

1. with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
2. for prescribing punishment for those acts which are declared to be offences under this Part;

and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);

2. any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.

Explanation — In this article, the expression "law in force'' has the same meaning as in article 372.

4.0 EXPLANATION OF FUNDAMENTAL RIGHTS

4.1 Understanding the Meaning of 'State' Under Article 12

One of the most important debates over Article 12 has been the true import of the word 'state'. The Supreme Court in various judgments over a period of time has expanded the ambit of 'State' to include Corporations such as LIC and ONGC since they perform tasks "very close to governmental or sovereign functions". The term 'State' accommodates any authority that's created by the Constitution of India and has the power to make laws though it may not be performing governmental or sovereign functions. 

In addition to the Executive and Legislature of Union and States, the President of India and Governors of States can also be included under the ambit of the word 'State' as they are a part of the executive. The term 'government' also includes any department of government or any institution under its control, for example, the Income Tax Department.

'Local authorities', as used in the definition, refer to municipalities, panchayats or similar authorities that have the power to make laws & regulations and also enforce them. The expression 'Other authorities' could refer to any entity that exercises governmental or sovereign functions.

Both statutory and non-statutory bodies can be considered as a 'State' provided they get financial resources from the government and "have deep pervasive control of government and with functional characters". ONGC, Delhi Transport Corporation, IDBI, and Electricity Boards are referred as a 'State'. However, entities such as NCERT cannot be considered a 'State' as they are not substantially financed by the government and the government control is not pervasive.

Though Article 12 does not mention the judiciary specifically, legal experts are of the opinion that the judiciary should be included in the definition of State. According to one school of thought, the Supreme Court has the power to make rules (to regulate practice & procedure of courts), appoint its staff and decide its service conditions (as mentioned in Articles 145 and 146 of the Indian Constitution). Hence, it performs the role of a State.

In one of its latest observations, the apex court has held that judiciary can be considered as a 'State' as far as its rule-making power is concerned, but it would not be considered so when it exercises its judicial powers .

4.2 Supremacy of Fundamental Rights

Article 13 of the Indian Constitutions emphasizes the primacy of the Fundamental Rights enumerated in the following articles over any other law. By Article 13, the Constitution prohibits the Parliament and the state legislatures from making laws that "may take away or abridge the fundamental rights" guaranteed to the citizens of the country and consider any law "inconsistent with or in derogation of the fundamental rights" as void.

Article 13 provides a constitutional basis to judicial review since it gives the Supreme Court or High Courts the authority to interpret the pre-constitutional laws and decide whether they are in sync with the principles and values of the present Constitution. If the provisions are partly or completely in conflict with the legal framework, they are deemed ineffective until an amendment is made. Similarly, the laws made after the adoption of the Constitution must prove their compatibility, otherwise they will be deemed as void. 

In the case of Golak Nath Vs. the State of Punjab the Supreme Court of India ruled that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution. Therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void.

To overrule this, the 24th amendment to the Indian Constitution was enacted by the then Indira Gandhi government in November 1971. Clause (4) was inserted in Article 13, which states: "Nothing in this article shall apply to any amendment of this Constitution made under article 368." This provision added more power to the Parliament when it comes to amending the Constitution. It brought Fundamental Rights within the purview of amendment procedure and judicial intervention or review of those amendments was prohibited.

The amendment was also opposed by jurists, and all surviving members of the Constituent Assembly at the time. The Supreme Court upheld the validity of the 24th Amendment in Kesavananda Bharati v. State of Kerala in 1971. It however laid down the Basic Structure Doctrine which finally put limitations on Government's power to amend the Constitution.

4.3 Right to Equality

Article 14 has been a much debated Article in the Indian Judiciary. 

The source of Article 14 lies in American and Irish constitutions. It may be mentioned that the Preamble of Indian Constitution speaks of equality of status and of opportunity, and this article gives effect to that principle in the text of the constitution. In a sense, the demand for equality is linked up with the history of freedom movement in India. Indians wanted the same rights and privileges that their British masters enjoyed in India and the desire for civil rights was implicit in the formation of Indian National Congress in 1885. 

The Commonwealth of India Bill 1925, in clause 8, demanded, inter alia, equality before the law and provided that there was to be "no disqualification or disability on the ground only of sex", along with the provision that “all persons were to have equal right to the use of  roads, courts of justice and all other places of business or resort dedicated to the public".

The Sapru Report (1945) incorporating the proposal of the Sapru Committee, while laying emphasis on "minorities" did enunciate the fundamental rights and in page 260 of the report, described the fundamental rights of the proposed new constitution as a standing warning to all "that what the constitution demands and expects is perfect equality between one section of that community and another in matter of political and civic rights, equality of liberty and security in the enjoyment of the freedom of religion, worship, and the pursuit of the ordinary application of life."

Equality, and equality before the law: The equality clause enshrined in article 14 is of wider import. It guarantees equality before the law or the equal protection of laws within the territory of India. The equality clause in article 14 has a positive concept and such equality cannot be claimed in illegality. Equality cannot be applied when it arises out of illegality.

The expression 'equality before the law' is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favor of any individual. Every person, whatever be his rank, is subject to the jurisdiction of the ordinary courts. The second expression 'equal protection of the laws' is based on the last clause of the first section of fourteenth Amendment of American Constitution that equal protection shall be secured by all the persons of the country. Article 14 applies to all persons not only limited to citizens. But there is some confusion that all persons are not equal in all respects. Application of the same laws uniformly to all of them will, therefore, be inconsistent with the principle of equality.

Equals and unequals: The 'creamy layer' in backward class is to be treated 'on par' with the forward classes and is not entitled to benefits of reservations. If the 'creamy layer' is not excluded, there will be discrimination and violation of articles 14 and 16(1) in as much as equals (forwards and creamy layer of backward classes) cannot be treated unequally. Again non-exclusion of creamy layer will also be violative of articles 14, 16(1) and 16(4), since unequals (the creamy layer) cannot be treated as equals that is to say, equal to rest of the backward class. The equal treatment to unequals is nothing but inequality. To put both categories - tainted and the rest - at par is wholly unjustified, arbitrary and unconstitutional, being violative of article 14 of the constitution.

Test of equality: In determining the validity of the statutory provisions, courts in India have followed the general principle that equal protection of laws means the right to equal treatment in similar circumstances; courts have upheld legislation containing apparently discriminatory provisions where the discrimination is based on reasonable basis.

Both the phrases “equality before law” and “equal protection of the laws” advocate "equality to status and of opportunity." In fact, "equal protection of laws" also emphasises on equal treatment under equal circumstances. Thus, Article 14 stands against any arbitrary or discriminatory laws passed by legislatures. Whenever there's arbitrariness in the State action, an individual can fall back on Article 14.

Article 14 also takes into consideration the fact that not all laws must be generic in nature and not same laws are applicable to all persons. Hence, it has the provision of treating different individuals differently if circumstances demand so. Although it allows "reasonable classification" of individuals, objects, and transactions to achieve specific ends, it prohibits "class legislation" which adopts a discriminatory approach by "conferring particular privileges upon a class of persons."

5.0 Prohibition of discrimination

Backward Class: Clause (4) of article 15 may at the first sight appear to be a blanket provision, protecting any kind of beneficial discrimination in the nature of special provisions for benefit of the classes mentioned therein. However, apart from questions as to when a particular class can be legitimately regarded as backward class, discriminatory provisions of such a nature may be struck down as unreasonable in the circumstances.

In making Reservation by executive order by virtue of article 15(4), the state has to take care that it is not unduly wide. Apart from scheduled castes and scheduled tribes, the other class(es) eligible for reservation, if made by the State, is the category of "Socially and educationally backward classes of citizens".

5.1 93rd Constitutional Amendment, 2005

Act of 2005 introducing article 15(5) does not interfere with the executive power of the State, and is not invalid merely for not following the procedure laid down under article 368.

5.2 Discrimination

The crucial word in this article is 'discrimination', which means 'making an adverse distinction with regard to' or 'distinguishing unfavorably from others’.

The discrimination forbidden by article 15 is only such discrimination as is based, inter alia, on the grounds that a person belongs to particular religion. The said right conferred by clause(1) of article 15 being only on a 'citizen', the same is an individual right by way  of guarantee which may not be issued to discrimination in the matter of rights, privileges and immunity pertaining to him as a citizen.

Discrimination on grounds of sex: The exclusion of women not exclusively based on sex but taking into consideration peculiar nature of duties to be performed by electricity workers is not violative of article 15 of constitution.

Horizontal and Vertical reservations: The principle states that a reserved category candidate getting appointed against a non-reserved post will not be counted against reserved quota. It applies only to vertical reservations, but not to horizontal reservation for women and handicapped persons.

Reservation for SCs and STs: The state government is a competent authority to decide the question of reservation of seats for SCs and STs in Medical colleges.

Reservation on basis of domicile: A distinction, therefore, has been made by makers of constitution themselves to effect that the expression 'place of birth' is not synonymous to the expression 'domicile' and they reflect two different concepts. It may be true that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly but the same cannot be the guiding factor. Reservation on the basis of domicile is not impermissible in terms of clause (1) of article 15 of the Constitution of India.

Reservation within reservation: Allotment of quota of seats (in post graduate medical course(s)) for candidates to be selected out of persons in Government service sponsored by the State Government is not a "reservation". It amounts to laying down a source for filling up seats and is classified within article 15(1).

Scheduled Caste-Acquiring of Scheduled Caste status: A person by reason of marriage alone cannot, ipso facto, become a member of Scheduled Caste or Scheduled Tribe.

University-wise reservations

1. University-wise preference is valid if it is reasonable.
2. Domicile-wise preference is valid if it does not exceed reasonable limits.
3. College-wise preference is bad.

Women reservation: Reservation of 50% of post in favor of female candidate is not arbitrary. Reservation of certain posts exclusively for women is valid under article 15(3); article 15 covers every sphere of state action.

6.0 Equality of opportunity

6.1 Constitution (seventy-seventh amendment) Act, 1995

The Supreme Court in its judgment dated 16th November, 1992 observed that reservation of appointment or posts under article 16(4) of the constitution is confined to initial appointment and cannot extend to reservation in matter of promotions. This ruling of Supreme Court was considered to adversely affect the interests of Scheduled Caste and Scheduled Tribes. Since the representation of Scheduled Caste and Scheduled Tribes in service in state has not reached the required level, it was thought necessary to continue the existing dispensation of providing reservation in promotion in case of Scheduled Caste and Scheduled Tribes. In view of its commitment to protect the interests of Scheduled Caste and Schedule Tribes, the government decided to continue the existing policy of reservation in promotion of Scheduled Caste and Scheduled Tribes. To do this, it was necessary to amend article 16 of constitution by inserting a new clause(4A) to provide for reservations in promotion for the Scheduled Castes and Schedule Tribes. The constitution (seventy-seventh amendment) Act, 1995 seeks to achieve the aforesaid object.

6.2 Reservation and promotion

Article 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in nature of enabling provisions vesting a discretion in the State to consider providing reservation of circumstances mentioned in those articles so warranted.

6.3 Right to go anywhere and live with any person

In January 2016, Article 16(2) came up in a matter before the division bench of the Hyderabad High Court which granted a temporary stay on the selection process for recruitment of assistant executive engineers (AEEs) in all the four power corporations of Telangana state. Petitions were filed by Challa Narasimha Reddy and others challenging the amendments made by TS Genco, TS Transco, TSSPDCL and TSNPDCL to the recruitment rules which enable only to the citizens of Telangana to get employment in these power corporations. According to the changes, any person who is either born in two zones of the state or has studied for more than 6 years in one of these zones is called as a 'Local Candidate' for that zone and the ratio between the local and the non-local is 70:30.

The Petitioners maintained that per Article 16(2) of the Constitution, the power of reserving posts and determining the local status of a citizen is reserved only to the Parliament and not to a company registered under the Companies Act,

A Presidential Order was issued in 1975 determining the local status of citizens residing in Rayalaseema, Telangana and Coastal Andhra regions of erstwhile AP. The Presidential Order mandates local status on the basis of a minimum period of four years study or residence in a particular area. After the bifurcation of AP, this order has become a contentious issue for employees and students for determining their local status and domicile.

The Petitioners also maintained that the Presidential Order is not at all applicable to the power corporations. The Presidential Order is applicable only to the government employees and not to the corporations created under any statute.

By enacting this Article, the government of independent India acted earnestly to abolish the evil of untouchabilityy. The purpose behind this legislation is the liberation of society from orthodox beliefs and rituals that have lost both legal and moral base. The Constitution-makers not only provided for criminalising any form of social discrimination but also punishing those who practice such discriminations.

In order to strengthen the constitutional provision in Article 17, the Parliament enacted the Protection of Civil Rights Act, 1955 (formerly known as Untouchability Offences Act) which penalises untouchability in any form which include enforcing religious and social disabilities, refusing to admit persons to hospitals, and unlawful compulsory labour. As per the Act, the offender "shall be punishable with imprisonment for a term of not less than one month and not more than six months."

The ambit of Article 17 was further expanded with the enactment of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.  The new legislation was enacted to deal with more violent caste-driven atrocities against scheduled castes and scheduled tribes. 

In has to be noted that Article 17 does not seek to abolish the caste system in totality. It talks about the abolishment of untouchability which is one of the consequences of the Caste System. 

Join PT courses | PT Youtube | PT App | Contribute |  Testimonials