1. INDIAN POLITY AND GOVERNANCE
Lecture 7
By Vishnu Agarwal
Fundamental Rights - 2
2. Fundamental Rights at a Glance
Right to equality
•Article 14 to Article 18.
Right to Freedom
•Article 19 to Article 22.
Rights against Exploitation
•Article 23 to Article 24.
Right to freedom of Religion
•Article 25 to Article 28.
3. Cultural and educational Rights
•Article 29 – Protection of interests of minorities.
•Article 30 – Right of minorities to establish and administer
educational institutions.
•Article 31 – Right to property (now repealed)
Right to Constitutional Remedies
•Article 32 – Remedies for enforcement of rights conferred by
this Part.
4. Article 29 – Protection of interests of
minorities
•“Any section of the citizens” having a distinct language,
script or culture of its own shall have the right to
conserve the same.
•SC held that “any section of citizens” does not include only
minorities.
•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.
•These rights are available to Indian Citizens only.
•First is group centric whereas second is individual centric.
5. Article 30 – Right of minorities to establish and
administer educational institutions
•All minorities, whether based on religion or language,
shall have the right to establish and administer
educational institutions of their choice.
•However, SC in Secretary of Malankara Syrian Catholic
College case (2007), gave following decisions:
i. The right to establish and administer educational
institutions include selection of governing body,
personnel administration, student admission and
fees policies, use of properties of institution etc.
6. ii. This right is to ensure equality with the majority and not
intended to place the minorities in a more advantageous
position as compared to majority.
iii. The general laws relating to national interest, national
security, public morality, health, taxation etc. are equally
applicable to minority institutions.
iv. Right to administer does not include right to mal-
administer. Governmental regulations can be made for
maintaining standards and academic excellence.
v. If state provides aid to minority educational institutions,
then state can impose condition for proper utilization of
that aid. But, such conditions shall not dilute or abridge the
rights of minority educational institutions.
7. •In compulsory acquisition of any property of such
educational institution, the State shall ensure that the
compensation fixed for such acquisition is not going to
restrict or abrogate the right guaranteed to them.
•Thus, right to property is guaranteed for educational
institutions established by minorities.
•In granting aid, state shall not discriminate against any
educational institution on the ground that it is under the
management of a minority.
8. Article 31 – Right to property (repealed)
• Earlier, Article 31 and 19(f) provided for right to property. They
provided that no person shall be deprived of his property except by
authority of law. There was also guaranteed compensation.
• After a long drawn tussle between Parliament and Judiciary, these
articles were repealed by 44th CAA in 1978. A new article 300A was
inserted.
• Article 300A: No person shall be deprived of his property save by
authority of law.
• Thus, Right to Property is still a constitutional right, but it is no more
a fundamental right. Thus, it is not enforceable directly by supreme
court. Moreover, there is no guaranteed right to compensation.
9. Article 32 – Remedies for enforcement of rights
conferred by this Part
• The right to move to Supreme Court, for the enforcement of the
fundamental rights, is guaranteed.
• This article makes fundamental rights real.
• Dr. Ambedkar considered this article as a very soul and heart of
Constitution.
• A person can directly go to SC for protection of his fundamental
rights.
• Thus, this article makes SC as the defender and guarantor of the
fundamental rights.
• However, the jurisdiction of SC is not exclusive as a person also
has choice to move to High Court u/a 226.
10. • 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 for the enforcement of
fundamental rights.
• Thus, SC jurisdiction is not only original (a person can go directly
to SC) but also wide (SC can issue order, directions and writ).
• Without prejudice to the powers conferred on the Supreme Court,
Parliament may by law empower any other court to exercise the
powers exercisable by the Supreme Court to protect fundamental
rights.
• The rights guaranteed by this article shall not be suspended except
as otherwise provided for by this Constitution.
• Like Article 359 provides that this article can be suspended during
National emergency.
11. Writs
•The writ jurisdictions of Supreme Court and High Court differ as
follows:
Supreme Court High Court
It can issue writs only for
enforcement of FRs.
It can issue writ for any other
purpose as well.
Jurisdiction includes whole
territory of India.
Jurisdiction includes territory
of state.
SC cannot refuse to exercise its
writ jurisdiction.
HC can refuse it.
12. Type Purpose Against whom?
Habeas
Corpus
To set free a detained person
illegally.
Public authorities as
well as private
individuals.
Mandamus A command issued by court
to a public official asking him
to perform his official duties
which he is failed to perform.
Any public body,
tribunal, corporation,
court or government.
Prohibition By a higher court to lower
court or tribunal to prevent
later from exceeding its
jurisdiction.
Judicial and quasi-
judicial bodies.
13. Type Purpose Against whom?
Certiorari By a higher court to lower court or
tribunal either to transfer a case
pending with the latter to itself or
to squash the order of the latter. It
is both preventive and curative.
Judicial and quasi-judicial
bodies; administrative
authorities.
Quo-Warranto To prevent illegal usurpation of
public office by a person.
Principle of Locus standi is not
applicable i.e. this can be sought
by any interested person not
necessarily by the aggrieved
person.
Only in case of substantial
public office of a
permanent nature created
by statue or by
Constitution.
It cannot be issued in
cases of ministerial or
private office.
14. Exceptions to Fundamental Rights
•Article 31A - Saving of laws providing for acquisition of
estates, etc.
•Article 31B: Validation of certain Acts and Regulations.
•Article 31C: Saving of laws giving effect to certain directive
principles.
•Article 33: Power of Parliament to modify the rights conferred
by this Part in their application to Forces, etc.
•Article 34: Restriction on rights conferred by this Part while
martial law is in force in any area.
•Suspension of FRs during National Emergency (discussed in
chapter “Emergency Provisions”).
15. Article 31A - Saving of laws providing for
acquisition of estates, etc.
• No law shall be deemed to be void on the ground that it is inconsistent
with article 14 or article 19, if it provides for —
(a) Acquisition of any estate or of any rights therein by the state, or
(b) 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
(c) Amalgamation of two or more corporations, or
(d) 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
(e) Extinguishment or modification of any mining lease.
16. If such law is made by the Legislature of a State, the
provisions of this article apply only if such law have
been reserved for the consideration of the President
and has received his assent.
Where acquisition of any estate comprises such land,
which is under personal cultivation of a person and
land is within the statutory ceiling limit, then it State
shall provide for payment of compensation at a rate
which shall not be less than the market value.
17. Article 31B: Validation of certain Acts and Regulations
•It saves the acts and regulations included in the 9th
Schedule from being challenged and invalidated on the
ground of contravention of any of the FRs.
•However, in I. R. Coelho (2007) case, SC ruled that there
could not be any blanket immunity from judicial review
as it is part of basic structure.
•SC held that laws placed under 9th Schedule after April
24, 1973 are open to challenge in court if they violated
FRs guaranteed u/a 14, 15, 19 and 21 or the basic
structure of the Constitution.
18. Article 31C: Saving of laws giving effect to certain
directive principles
• If any law gives effect to all or any DPSPs, then it shall not be
deemed to be void on the ground that it is inconsistent with article
14 or article 19. Such a law cannot be questioned in court of law.
• 25th amendment act provided protection to only DPSPs u/a
39(b) and (c). But later 42nd CAA extended this protection to all
DPSPs.
• But SC in Minerva Mill case (1980) declared this extension of
provision as invalid and unconstitutional. Thus, immunity is
available to only socialistic DPSPs u/a 39(b) and (c).
• SC also held this provision as unconstitutional as it takes away
Judicial Review which is part of basic structure.
19. Article 33: Power of Parliament to modify the rights
conferred by this Part in their application to Forces, etc.
•Parliament may, by law, to ensure the proper discharge of
their duties and the maintenance of discipline among them,
restrict or abrogate any fundamental rights for following forces:
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance
of public order (police and para-military forces); or
(c) Bureaucracy or intelligence or counter intelligence
organisations; or
(d) person employed in telecommunication systems which is
set up to serve above mentioned forces.
20. Article 34: Restriction on rights conferred by this
Part while martial law is in force in any area
•Martial law is not defined in Constitution, but it means
‘rule by military and not by civil authorities’.
•Parliament may by law indemnify any public servant or
any other person in respect of any act done by him in
connection with the maintenance or restoration of order
in any area where martial law was in force.
•Parliament can also validate any sentence passed,
punishment inflicted, forfeiture ordered or other act
done under martial law in such area.
21. Article 35: Legislation to give effect to the provisions of
this Part
• Only Parliament shall have, and the Legislature of a State shall not
have, power to make laws with respect to following matters:
• Prescribing ‘residence’ as a condition for employment in article
16(3).
• Empowering a court other than SC to protect FRs of citizens u/a
32(3).
• Article 33 i.e. restriction of FRs for armed forces and various other
forces.
• Article 34 i.e. indemnifying any government servant or any other
person for any act done during the operation of martial law.
• Providing punishment u/a 17 (untouchability) and 23 (traffic in
human beings and forced labour).
• Thus, Parliament can make law on above subjects even if they fall in
“state list”.
22. Rights outside Part III
•Article 265: No tax shall be levied or collected except by
authority of law.
•Article 300A: Right to property.
•Article 301: Trade, Commerce and intercourse
throughout the territory of India shall be free.
•Article 326: Right to vote.
•These rights are called “Constitutional Rights”. They
are different from fundamental rights.
