Fundamental Rights Important Facts

The demand for fundamental Rights in India was raised for the first time in the Nehru Report 1928 , Which interalia included some social and economic rights also. The American Constitution was the first written Constitution which granted fundamental rights called Bill of Right to its citizens. The Fundamental Rights in the Constitution of India are inspired by the American Constitution. Some fundamental rights as prohibition on discrimination on the ground of religion, race caste sex of place of birth (Art 15). Equality of opportunity in public employment (Art 16) and right to freedom of speech association etc.(Art19) are available to Indian citizen only. All other fundamental rights are available to both citizens and aliens . The fundamental rights relating to arrest and detention (clause 1 and 2 of Art.22) are not however available to enemy aliens. Right to property is the only fundamental right which has been excluded from the list of fundamental rights by the 44th Constitution Amendment Act, 1978 as it was coming in the way of the progressive and welfare activities of the state. Right to free and compulsory education to children from 6 to 14 year age is the fundamental right which has been added in the list under 86th Constitutional Amendment Act, 2002 inserting new Article 21A. while the proclamation Emergency under Article 352 come into effect the fundamental right given under Art. 19 (right to freedom of speech association etc). are automatically suspended . Other fundamental rights may be suspended by the President by issuing a separate notification to that effect under Art. 359 . However after the 44th Amendment 1978 the two fundamental right namely rights relating to protection in respect of conviction of offences (Art . 20) and right to protection of life and personal liberty(Art. 21) cannot be suspended even during the operation of national emerfencx. At prdsent thd Rifht to property hs a leg`l rhght unddr Art . 300A However certain type of property is still enjoying the status of fundamental right to property under Art.31A that is the land held by a person for his personal cultivation and which is within the ceiling limit. Leaving aside the above exception the other kind of property can be acquired by the state in the public interest and the provisions of Articles 14 and 19 cannot be invoked against such acquisition. As per the provision of Article 31B the Acts and regulation included in the 9th schedule cannot be challenged in any court of law, The 9th schedule and the Article 31B were added by the Constitution First Amendment Act. The land reform acts passed by states are included in the 9th schedule. Certain Directive Principles of state policy are given precedence over the fundamental rights included in Articles 14 and 19 . By the 25th Constitution Amendment Act 1971 Article 31C was inserted which provides that the laws enacted to give effect to the Directive Principles of state policy as contained in Art. 39 cannot be challenged on the ground of violation of rights given in Articles 14 and 19 Latter by the 42nd Constitution Amendment 1976 the scope of this provision was broadened and this provision has become applicable to all Directive Principles of State Policy. Under the provisions of Art.33 the parliament has been empowered to enact law to condone any person in the service of state for violation of fundamental rights during the enforcement of martial law in any territory of India. Under the provisions of Article 34 the parliament has been empowered to enact law to condone any person in the service of state for violation of fundamental rights during the enforcement of martial law in any territory of India. By the provisions of Article 35 the parliament has been empowered to enact laws for the implementation of fundamental rights . However the legislatures of states have been debarred to make any law for this purpose. The fundamental rights are not absnlutd . They subject to bert`in bondhtions and rdasonable restrictions. The Parliament , has been authorised by law to make reasonable restrictions on the right to freedom as given in Article 19. The ground of reasonable restriction applicable to different types of freedom are given below : (i) Freedom of Speech and Expression – Reasonable restrictions on the ground of sovereignty and integrity of India the sovereignty of the state friendly relations with foreign states , public order decency or morality contempt of court, defamation of incitement to an offence. (ii) Freedom to Assemble Peaceably without Arms- Reasonable restrictions on the grounds of sovereignty and integrity of India or public order. (iii) Freedom to from Association or Unions – Reasonable restrictions on grounds of the sovereignty and integrity of India public order morality. (iv) Freedom to move and reside in any part of the Territory of India- Reasonable restrictions on grounds of interest of the general public or for the protection of the interests of any scheduled tribe. (v) Freedom to practice any profession or to carry out any Occupation- The reasonable restrictions on the ground of prescribing technical qualifications necessary for any profession or the state owned any business or trade. The Freedom of press and freedom of writing paintings etc. are convered under freedom of expression as given in Article 19. Leading Court Cases with Respect to Fundamental Rights The approach of judiciary in India since independence towards fundamental Rights has been to broaden their scope in favour of citizens or affected persons . Some of the leading cases and the principles or rules upheld by the courts are given below which have deep bearing in the understanding and interpretation of Fundamental Rights. Gopalan Vs. State of Madras , 1950- The court uphdld that the leghslature unddr otr Cnnsthtuthon hs snverdign and the courts cannot impose any restriction upon that sovereignty on the theory of spirit of Constitution or Natural Rights, Golak Nath vs. State of Punjab 0967, Thd supremd Cotrt held that thd Fundamdntal Rifhts have been given a Transcendental Position by the Constitution so that no authority including the Parliament is competent to amend the Fundamental Rights. It should be noted that before the Golaknath case the superme court in Shankary Prasad vs. Union of India 1952 and sajjan singh vs State of Rajasthan 1965 held that the Parliament has the power to amend the Fundamental Rights under Article 368. Keshvanand Bharti vs. State of Kerla 1973- The 13 judge bench of the Supreme Court overruled the decision of Golak Nath case and held that the Parliament has the power to amend the Fundamental Rights but it cannot amend under Art. 368 the basic features of the Constitution .However the majority opinion in this case did not include fundamental rights in the list of basis features It should be noted that the basic feature has not been authoritatively defined by the courts. During this judgement justice S. M. Sikri was the Chief justice of India . The judgement was given by a majority of 7-6 judges. It was justice H.R. Khanna who propounded the concept of basic feature As a result of this judgement justice A.N. Ray was appointed the Chief justice of India superseding three senior judges- J.M.Shelat, K.S. Hegde and A.N. Grover. Minerva Milk Vs. Union of India 1980- In order to overcome the limitation of basic features imposed by Keshvanand case on the amending powers of the Parliament Article 368 was amended vide 42nd Amendment Act 1976 which provided that- (a) No amendment under Art. 368 shall be called in question in any court on any ground [368(4)]. (b) There shall be no limitation on the powers of the Parliament to amend any part of the Constitution [Aticle 368(5)]. The Supreme Court in Minerva Mills case applied basic features theory and invalhdatdd clausd 4 `nd 4 and of Arthcle 368 and uphdld that the doctrine of Judicial Review can not be excluded by amending the Constitution.

5. Indira Nehru Gandhi vs. Raj Narain 1975- In this case the court hdld bourt held that the doctrine of Judibial Revhew vas the basic feature of the Constitution and it cannot be excluded even by constitutional amendment . The judicial Review is the power of the courts by which they can declare any law of Parliament as void if such law goes against the provisions of the Constitution. 6. Indra Sawhney vs Union of India 1992- This case is also known as Mandal commission case . The nine judge bench of the Supreme Court held that- (i) The Backward classes of citizens is not defined in the Constitution . There is an integral connection between caste occupation , poverty and social backwardness. (ii) The backward classes can be identified in Hindu society with reference to castes alongwith other criteria such as traditional occupation , poverty , place of residence, lack of education etc. and in communities where caste is not identified the rest of the criteria shall apply. (iii) The backwardness contemplated by Art. 16(4) is mainly social. (iv) There should be imposition of an income limit for the purpose of excluding persons from the backward classes . They are called ‘Creamy Layer’ which should be excluded from reservation. (v) Reservation under Art . (16(4) should not exceed 50%. (vi) Reservation under Art. (16(4) is not applicable in promotion. (vii) Identification of backward classes is subject to judicial review. 7. Manika vs Union of India 1978- The seven judge bench of the Supreme Court laid down that the expression personal liberty in Art. 21 covers a variety of rights given in Art. 19 Thus a law coming under Art 21. must also satisfy the requirement of Art. 19. Therefore a law made by the state to deprive a person of his personal liberty must prescribe a procedure for such deprivation which must not be arbitrary unfair and unreasonable. Before the decision in Manika care in 1978 the view which prevailed in Supreme Court (Gopalan Case) was that there was no guarantee in our Constitution against arbitrary legislation encroaching upon personal liberty.

8. Principle of Res Judhcat``’- Tie princip`l of rer judhcat` ddnotdr th`t ` pethtinner has no right to move the Supreme Court more than once on the same facts even though the earlier case was disposed of exparte . However the rule of res judicata shall not apply if a fresh petition is filed on new grounds.

New Amendments to the Fundamental Rights

1. 77th Constitution Amendment Act, 1995- The amendment introduced a new Article 16(4A) which provides that the reservation in favour of the scheduled castes and scheduled tribes can be made in promotion in the public services.

2. 81st Constitution Amendment Act, 2000- This amendment also adds another Article 16(4B) which provides that the number of unfilled posts of the scheduled castes, scheduled tribes and other Backward castes shall not be included in the number of fresh vacancies to be filled up. The implication of this amendment is that the number of backlog vacancies shall lie beyond the permissible limit of 50% of vacancies in the reserved category.

3. 82nd Constitution Amendment Act, 2000- This amendment inserts a new proviso in Article 335, which provides that the state may relax the minimum qualifying marks for the scheduled castes and scheduled tribes candidates in promotional examinations.

4. 85th Constitution Amendment Act, 2002- It effects further amendment to Article 16(4A) which provides that consequential seniority shall also be taken into consideration in promotions of scheduled caste and the scheduled tribe candidates to various government posts. 5. 86th Constitution Amendment Act, 2002- This amendment inserts Art. 21A which provides fundamental right to free and compulsory education to children from 6 to 14 year of age in a manner determined by law by the state.