Please enable JavaScript.

Coggle requires JavaScript to display documents.

INTRODUCTION TO FUNDAMENTAL RIGHTS Part III Articles 12 to 35 By…

- - - - Later on, the French compiled the “Declaration of the Rights of Man and of the Citizen” after the French Revolution in 1789
        
        The most important advancement in the history of fundamental rights occurred when the USA incorporated certain fundamental rights in the form of the “Bill of Rights” in their constitution by the way of the first 10 amendments
        
        After this, nearly all democracies of the world have given a constitutional sanctity to certain inalienable rights available to their citizens.
      - King John was forced to
        sign in 1215
      - Charter of Liberties
      - Put a check upon the arbitrary
        Powers of the King.
      - Foundation-stone of the rights
        and liberties of the English
    - - Bill of Rights
        
        It provides freedom of
        speech, press, and religion.
        
        Put Limitation on federal
        and state governments.
        
        first 10 amendments to the
        U.S. Constitution
        
        It guarantees civil rights and
        liberties to the individual
        
        FR’s of the Indian constitution
        derived inspiration from the Bill of Rights
  - - - Human Rights are those rights which every human
        being enjoys on the basis of equality.
        
        These Human rights are guaranteed under the
        constitution of India in the form of-
        
        Fundamental Rights
        
        Directive Principles of State Policy
        
        TYPES
        
        Second Generation Rights
        
        Economic, social and Cultural rights
        
        Right to employment
        
        Right to housing
        
        Right to adequate health care
        
        Right to social security
        
        Third Generation Rights
        
        Rights at a collective level: Society
        
        Right to Economic development
        
        Right to breathe unpolluted air
        
        Right to live in a cohesive society
        
        First Generation Rights
        
        Civil and Political Rights
        
        Right to Vote
        
        Freedom of Assembly
        
        Freedom of Speech
        
        Freedom of Religion
        
        Fourth Generation Rights
        
        Development related rights
        
        Abortion Right
        
        Third Sex Right
    - - General Principle of fairness and Justice
      - Do not have the backing of the Law behind them
    - - Inherent Rights
      - God given rights
      - Ex:
        
        Right to Education
        
        Right to WorK
        
        Right to Live
- - - - (a) Government and Parliament of India, that is, executive and legislative organs of the Union government.
      - (b) Government and legislature of states, that is, executive and legislative organs of state government.
      - (c) All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.
        
        Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within the meaning of the term local authority, village panchayat is also included.
      - (d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
        
        Other Authorities
        
        Other Authorities’means all such authorities that lie within the territory of India and are controlled by the government of India through its acts and amendments.
        
        Ujjain Bai v. State of Uttar Pradesh (UP)
        
        The bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis.
        
        combines up the list of authorities falling within the definition by referring to “other authorities” within the territory of India which cannot be read as ‘of or as the same kind’(the ‘ejusdem generis’ rule ) with either the Government or the Legislature or Local authorities
        
        R.D Shetty v. Airport Authority of India
        
        Five points were mentioned by Justice P.N. Bhagwati to understand if the ‘body’ in news is instrumental to be called as the ‘State’ under Article 12 or not:
        
        The ‘Body’ can be called as ‘State’ if its entire shared capital is held by the Government of India
        
        Such other authorities have a governmental functional character
        
        The absolute control of such authorities lie with the government
        
        Such authorities which have an element of command or authority
        
        The authorities discharging public service
        
        Rajasthan Electricity Board v. Mohan Lal
        
        the Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law
        
        Such statutory authority need not be engaged in performing government or sovereign functions. The court emphasized that it is immaterial that the power conferred on the body is of a commercial nature or not.
        
        Is Judiciary a State under Article 12?
        
        There is no explicit mention of Judiciary (Supreme Courts, High Court, or State/District Courts) as a ‘State’ in Article 12
        
        However, the organs of the judiciary cannot make rules that are in itself violative of the FR
        
        Rupa Ashok Hurra v. Ashok Hurra Case
        
        1 more item...
        
        Is UNO a State under Article 12?
        
        Delhi High Court, in May 2019, declared that UNO is not a ‘State’ defined under Article 12 of the Indian Constitution.
        
        Sanjaya Bahel v. Union of India & Others case
        
        1 more item...
        
        Bar Council of India and the State Bar Councils
        
        In a recent petition to the Supreme Court demanding an introduction of a uniform financial assistance policy for the lawyers in the emergencies
        
        1 more item...
      - The most debates happen around the term authorities under the control of government and the
        debates become vague and ambiguous.
        
        The state's function is dynamic and there has been increasingly a pattern of government functions
        being outsourced to authorities that function on behalf of the government
        
        According to the Supreme Court, even a private body or an agency
        working as an instrument of the State falls within the meaning of the ‘State’ under Article 12
        
        For example- State includes Delhi Transport Corporation, ONGC and Electricity Boards, but does not include NCERT as neither is it substantially financed by the government nor is the government’s control pervasive.
      - State has been defined in a wider sense so as to include all
        its agencies. It is the actions of these agencies that can be challenged
- - - - While violation of these rights by the state can be addressed with constitutional remedies
        under Article 32 and 226, any similar violation by citizens to be addressed through the usual means like civil remedies of FIR,
        subordinate courts etc.
  - - - India was a signatory to the Universal Declaration of Human Rights, therefore great precaution was taken so that Fundamental Rights mentioned in Part 3 of Indian Constitution is concurrent with the provisions of the UN Declaration of Human Rights
  - - - However, whether such
        restrictions are reasonable or not is to be decided by the courts.
        
        balance between the rights of the individual and those of the society as a whole
        
        The grounds of restrictions vary for different Rights. Some of the
        restrictions mentioned include
        
        ▪ Advancement of any socially and educationally backward classes of citizens or SCs and STs
        
        ▪ In the interest of general public, public order, decency or morality.
        
        ▪ Sovereignty and integrity of India.
        
        ▪ Friendly relations with foreign States.
  - - - An example of a fundamental right that isn't self-executory is Article 17 concerning
        untouchability which prohibits untouchability and sanctions punishment in accordance with law hence this fundamental right needs a separate law to enact its provisions
      - Even the Article 21A concerning Right to Education isn't self-executory and needs a law to
        execute it namely the Right to Education Act, and even Right against Exploitation under Article 23 too isn't self-executory and needs a law to actualize it
- - - - Constitutional
        amendment not as law under Article 13
        
        Shankari Prasad case, 1951 to Sajjan Singh case, 1965, the apex court held on to a narrow
        interpretation of the term law in article 13 and considered constitutional amendment laws out of the scope of its definition
        
        FUNDAMENTAL RIGHTS AMENDABLE
    - - Reaction from the executive and legislature: कार्यपालिका और विधायिका की प्रतिक्रिया
        
        In the 24th Constitution Amendment Act, 1971, both Articles 13 and 368 were amended by adding Article 13(4) and 368(3)
        
        • Art 13(4) stated that nothing in Article 13 would apply to any amendment of the constitution doneunder Article 368. This was an attempt to narrow down the interpretation of the term law used in article 13.
        
        • Art 368(3) stated that nothing in article 13 shall apply to provisions made under this article to double secure the narrow interpretation
        
        Keshavanada Bharti Case (1973)
        
        The courts took a middle path between the narrow interpretation espoused from Shankari Prasad
        case till Sajjan Singh and the wider interpretation in Golaknath case
        
        The courts observed that all
        parts of the constitution are amendable but no change or amendment should have the effect of changing or altering the basic structure or core identity of the constitution
        
        The courts generally defined the basic structure as those elements without which or if there is an
        infringement of them, the constitution will lose its very soul and essence
        
        FUNDAMENTAL RIGHTS AMENDABLE EXCEPT Basic Structure
        
        Inclusion of Personal Laws under Article 13
        
        AIMPLB's Stance: The All-India Muslim Personal Law Board (AIMPLB) contends the Supreme Court cannot nullify personal law provisions.
        
        • Reform Calls: Various entities, including Muslim women, urge the court to term triple talaq and polygamy as "un-Islamic".
        
        • Bombay HC Ruling: The 1951 Bombay HC ruling (State of Bombay vs Narasu Appa Mali) determined personal law isn't 'law' under Article 13.
        
        • SC's Stand: In a 1997 case, SC didn't consider talaq and polygamy as violating Articles 14 and 15, leaving the decision to the legislature.
        
        • Shayara Bano Case (2017) Verdict: SC ruled Shariat Act, being pre-constitutional legislation, falls under "laws in force" as per Article 13(3)(b) and can be struck by Article 13(1) if inconsistent with Part III of the Constitution.
      - term law in the article 13 would include even the constitutional
        amendment laws
        
        hence subject to judicial review
        
        In Golaknath Case, a 11 judge bench with a narrow margin of 6-5 reversed its earlier interpretation
        and moved towards the wider interpretation of the term law and hence including even the constitutional amendment laws under the purview of judicial review.
        
        fundamental rights are termed fundamental for a reason; they have been given a uniquely elevated
        position and status in the constitution and hence are transcendental in nature and rise above the other
        
        FUNDAMENTAL RIGHTS UNAMENDABLE
- - - - the right to property was deleted from the list of
        Fundamental Rights by the 44th Amendment Act, 1978
        
        It is made a
        legal right under Article 300-A in Part XII of the Constitution.