fundamental rights and duties
TRANSCRIPT
FUNDAMENTAL RIGHTS AND DUTIES
Position in England
Rights are Unwritten Judiciary is the Guardian of Basic Rights Omnipotent Parliament English Court has no power of Judicial
review over legislation
Position in United States
American Bill of Rights Exists. Establishment of Judicial Supremacy. Beyond the power to Senate to change
any Rights. Judiciary has the power to amend Rights.
Position in India
Nehru supported the Nationalist opinion in favor of Fundamental Rights (1929).
Simon commission and Joint Parliamentary committee had rejected the idea of Fundamental Rights (1935).
Established in part III of the constitution (1958).
Was modeled from US but judiciary power is weaker.
Position in India (Contd…)
Parliament has the power to amend. 44th Amendment act of 1978 abolished
the Right to Property. Legislature makes a law depriving the
person of his Right to Property, He cannot move to Supreme Court.
No Obligation on the part of the state to pay any compensation.
Position in India (Contd…)
Exceptions: When in State of Emergency Presidential Rule is imposed Non fulfillment of fundamental duties.
Classification of Fundamental Rights Constitution classifies Fundamental Rights
under 7 Groups*.i. Right against exploitationii. Right to freedom of Religioniii. Cultural and Educational Rightsiv. Right to equalityv. Right to Particular Freedomsvi. Right to Property*vii. Right to constitutional remedies
* Was Abolished in 1978, making Fundamental Rights as 6.
Fundamental Rights Contd… Classification based of Persons to Whom
they are available
Right Against Exploitation
Prohibition of Human trafficking and Forced Labor (Article 23 of the Constitution).
Prohibition of employment of Children under the age of 14 (Article 24).
Exception: While imposing compulsory service for public
purposes.
Rights to Freedom of Religion (art 25,26,27,28) India is a Secular state (Neutral and
Impartial towards all religion). No State Religion in India. Provides religious freedom to all citizen of
India. Religion cannot be used for political
mileage.
Article 25: Freedom to profess, Practice and propagate his own religion. No forcible conversions are allowed.
Rights to Freedom of Religion Contd… Article 26: Freedom to manage religious
affairs Establish & maintain religious institutions. Manage its own affairs. Own and acquire movable and immovable
property.
Article 27: Freedom from paying tax for the promotion of any religion.
Rights to Freedom of Religion Contd… Article 28: Freedom to attend or abstain
from religious functions.
No religious instructions can be imparted in a educational institution wholly funded by the government.
Must not be imposed on people of other religion without their consent.
Rights to Freedom of Religion Contd… Exceptions:
Public Order, Morality and Health Social Welfare and Reforms Socio economic, political or other secular
activity not appertaining to freedom of conscience.
Cultural And Educational Rights( art.29,30) Article 29:: State cannot impose upon it
any other culture.
Article 30:: Minorities have right to establish and
administer educational institutions of its choice.
While granting aid, Govt cannot discriminate based on the grounds of minority ()
Cultural And Educational Rights Contd..
Exceptions: During Mal Administration Aided Institution offering professional
courses, Admissions can only happen via CET conducted by university or state.
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Article 14: Equality before law.The State shall not deny to any person
Equality before law or the equal protection of the laws within the territory of India.
All are equal before law whatever their rank or status in the society.
All are subject to the ordinary law of the land Every person, Whatever his Rank or Position is
subject to ordinary courts. No man is above Law
Right To Equality( art.14,15,16,17)
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Exceptions : President, Governors– they shall not be
answerable to any court for the exercise and performance of the powers and duties of their office.
No criminal proceeding shall be instituted or continued against the President or Governors during their term of office.
Foreign services & Ambassadors immune from any judicial process/International law.
Right To Equality Contd…
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Equal Protection of Laws:
Positive Concept Law administered Equally among equals. Unequal persons to treated unequally Taxes for different products/class of people Legislature has powers to make reasonable
classification---must not be “arbitrary, artificial or evasive”
Just and reasonable.
Right To Equality Contd…
Right to Equality Contd... Article 15 The state shall not discriminate
against any citizen on grounds only of religion, race, caste, gender or place of birth or any of them.(art 15)
No citizen shall be denied.(a) access to shops, public
restaurants, hotels and places of public entertainment or
(b) the use of wells, tanks, bathing ghats, roads etc..(art 15)
Article 15.. Exception
State can make special provisions for:Women and ChildrenSocially or educationally backward class
Scheduled Castes and Scheduled Tribes.
Article 16 Equality in public employment Equality of opportunity in matters of
Public Employment.
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.(art 16)
Exceptions to art16
Residence within the state in case of particular posts(public employment act ,1957)
Reservation for sc/sc/obc Office connected with religious
institutions.
Practice of Untouchability in any form is forbidden
Untouchability shall be an offence punishable in accordance with law.
Parliament has enacted the Untouchability (offences) Act 1955, it was amended & renamed(1976) as Protection of Civil RightsAct,1955.
Article 17: Abolition of Untouchability
18 :Abolition of titles: No title, not being a military or academic distinction, shall be conferred by the State.
Exceptions:1)Ban only against the state, not
applicable for univ etc.2)Military & academic distinction do not
come under this scope.
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Article 18 Abolition of titles
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1954 Bharath Rathna, Padma Vibhushan, Padma Bhushan, and Padma shri awards
are mere decorations and not to be used as appendage to the awardees' name.
These awards do not violate of the Principles of equality as guaranteed by Art. 14 and art. 18
Article 18 abolition of titles
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Article 32 : considered ‘Watch dog of the constitution’
“ Soul of the Constitution” by Dr BR Ambedkar
Gives a remedy to any violation of Fundamental Rights.
Supreme Court is free to use any procedure and all the powers to enforce FRs
Right to Constitutional Remedies.
Locus Standi ( Who can apply)/right to be heard in court
Person whose FR has been violated In habeas corpus petition, not only the
person detained but also any other person other than a stranger can seek the benefit of Article 32.
In a PIL ‘Public Interest Litigation’ any interested person can seek the benefit of Article 32.
Right to Constitutional Remedies.
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Petitions against whom ? General rule: writs are enforceable only
against a State Articles 17,21,23, & 24 are also
enforceable against private persons 17-Abolition of untouchability: 21-
Protection of Life and Personal Liberty. 23-Prohibition of traffic in human beings and 24-forced labor.
Right to Constitutional Remedies.
Article 32: Remedies for enforcements of Rights conferred by this part:
The right to move the supreme Court for the enforcement of the F.rights is conferred by this Part.
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, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
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Right to Constitutional Remedies
Habeas Corpus: ‘to have a body’ Produce the detained person before the
court.
To set at Liberty, a person confined without Legal justification. Issued Against ‘State’, private individual or
an organization.
Mandamus: HC or SCCommands a person or a body to perform
some public or legal duty which he has refused to perform.
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Right to Constitutional Remedies
Article 32 right to cons remediesProhibition: writ issued by
SC or HC to a subordinate courtforbidding it to continue the
proceedings, if it has over crossed its jurisdiction.
quo-warranto: legal proceeding during which an
individual right to hold an office or governmental privilege is challenged.
Fundamental duties
To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
To cherish and follow the noble ideals which inspired our national struggle for freedom;
To uphold and protect the sovereignty, unity and integrity of India;
To defend the country and render national service when called upon to do so;
To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
To value and preserve the rich heritage of our composite culture;
To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
To develop the scientific temper, humanism and the spirit of inquiry and reform;
To safeguard public property and to abjure violence;
To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a _1[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the _2[unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
THE CONSTITUTION OF INDIA
Preamble
Reflects the basic structure & spirit of cons
Does not give any right to an individual or entity
Serve as a guiding tool for the interpretation of the cons.
Sovereign
Means supreme or independent free to govern himself and is
independent of outside influence The people govern themselves by
electing their representatives
Socialist
Added by 42 amend of 1976 Does not connote any political or
economic ideology Represents social equality Absence of discrimination betw. citizens
on any grounds
Secular
Added by 42 amend 1976 State shall remain neutral towards all
religions
Democratic
Govt. FAR the people ,BUY the people ,OFF the people
People of India elect govt at all(union, state, local) levels
Universal adult franchisee
Republic
Head of the state is elected Term is 5 yrs
Constitution of India
Prominent Features
Drawn from different sources
Indian const. is a borrowed one Credit lies in gathering the best features,
modiying them to the existing condition & needs
Patch work but a beautiful one.
Written constitution
Written cons is framed at a given time & comes into force on a fixed date
Strength lies in being clear & definite Written cons .is enacted while unwritten
is evolved 395 Articles , 8 schedules(2008 444
art,12 sch)
Lengthiest constitution
395 Articles , 14 schedules(2008 444 art,12 sch)
24 parts
Combination of rigidity & flexibility
Rigid-US., Swiss Flexible-Britain
Quasi Federal Policy
Unitary-UK, only one govt for the whole nation
Federal-state div into various units, 2 govts-union govt+ state govt Distribution of powers betw union &
state imp else fed cannot exist India has 3 lists of power-union list, state
list ,concurrent list.
Single citizenship
Fed states usually have double citizen ship
In India every citizen enjoys equal rights.
Parliamentary Democracy
Borrowed from British system Head of state is nominal Cabinet selected from members of
legislature as well as responsible to it
Universal adult franchisee
Every citizen above 18 has the right to vote
Exception : Lunatics, Insolvent & declared bankrupt
by a competent court (US paupers are disfranchised, SA blacks
were denied voting, France had male suffrage till 1944)
Single integrated judicial system No separate fed & state courts SC+HC has jurisdiction over the union,
state, civil criminal & const. laws. SC judges are appt. from exp. HC judges Provision of transfer of judges from 1 HC
court to another SC word is final law of land
Independence of judiciary
Judges are appt. on qualification basis. Salaries & allowances are protected Cannot be removed easily Free from influence of legislature.
Fundamental rights & duties
Six fundamental rights, eleven duties.Part 3 & article 51 A