Notes - Fundamental Rights, Fundamental Duties and Directive Principles of State Policy
Category : UPSC
FUNDAMENTAL RIGHTS FUNDAMENTAL DUTIES AND DIRECTIVE PRINCIPLES OF STATE POLICY
Introduction
Fundamental Rights are defined as Basic human freedoms, which every Indian citizen Bas to enjoy for a proper and harmonious development of personality. It contains six rights. Fundamentals Rights are justiciable and are protected by the judiciary. The Constitution seeks to strike a balance between individual freedom and social interests through the Fundamental Duties. To make fundamental right and duties of citizens of India safe and effective, there are certain guidelines for the governance of the country given in the Directive Principles of state policy.
Fundamental Rights (Part III)
Important Feature
ARTICLE-14: Equality before law/Equal protection of Laws
Equality Before Law |
Equal Protection of Law |
Negative concept |
Positive concept |
Absence of special privilege due to birth, creed or like in the favour of any person. There is equal treatment before law. |
Right to equality of treatment in similar circumstances. |
Dicey's concept of rule of law. |
Treated as due process of law. |
Established law in England. |
An American concept. |
'Rule of Law' is the "Basic Feature" of the Constitution which cannot be destroyed even by constitutional amendment under Article 368.
Exception to the Rule of Law
Art |
Explanation |
361 |
Immunity to the President of India and State Governors. |
361 (1) |
President of India and state Governors are not answerable to any court for exercise and performance of their powers and duties. |
361 (2) |
No criminal proceedings can be initiated against President of India and state Governors during their term of office. |
361 (4) |
No civil proceeding can be instituted during the term of office in respect of any act done by President of India and State Governor in their personal capacity before or after they enter office till 2 months after the notice has been delivered to the President. |
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The foreign ambassadors and diplomats enjoy immunity from criminal and civil proceedings. The UNO and its agencies enjoy the diplomatic immunity. |
ARTICLE 15: Prohibition of discrimination
15 (1) |
No discrimination on grounds of religion, race, caste, sex or place of birth can be made. It applies to matters under the control of the state. |
15 (2) |
Prohibits discrimination at public places (shops, public hotels, restaurants, well, tanks, bathing, ghats etc.) and applies both to state and private individual. |
15 (3) |
Provisions for protection of women & children. |
15 (4) |
Provisions to protect interests of backward classes, 1st amendment Act, 1951. |
ARTICLE 16: Equality of opportunity in public employment
16 (1) & (2) |
No discrimination in public employment on grounds of religion, race, caste, sex, descent, place of birth or residence. |
16 (3) |
Residence within a state is a qualification for appointment for any government post. |
16 (4) |
For reservation of posts in govt. jobs in favour of any backward class. |
16 (5) |
Provides for the incumbent of any office, in connection with the affairs of any religious or denominational institution or any member of the governing body shall be a person professing a particular religion or belonging to a particular denomination is not a violation of the Constitution. |
ARTICLE 17 & 18: Abolition of Untouchability and Titles
17 |
Abolition of Untouchability. The parliament has passed protection of civil rights act, 1955 to abolish Untouchability.
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18 |
Abolition of Titles except military and academic titles i.e, Bharat Ratna, Padma Vibhushan, Padma Shri and National Awards. |
ARTICLE 19
Provides for 6 fundamental rights in the nature of freedoms. These are guaranteed to Indian citizens with reasonable restrictions.
Freedom |
Restrictions imposed |
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19 (1) (a) |
Speech & Expression
Freedom of press & Media. People?s Right to Know |
19 (2) 8 Grounds |
Integrity and Sovereignty of India |
Security of the state |
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Friendly relations with foreign states |
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Public order |
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Decency and morality |
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Contempt of court |
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Defamation |
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Incitement to an offence |
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19 (1) (b) |
Assembly |
19 (3) 3 Grounds |
Assembly must be peaceful. |
Assembly must be unarmed |
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Restriction under Art 19 (3): Sovereignty and integrity of India Public order |
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19 (1) (c) |
Forming Association |
19 (4) 3 Grounds |
Sovereignty and integrity of India |
Public order |
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morality |
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19 (1) (d) |
Freedom of Movement |
19 (5) 2 Grounds |
Interest of general public |
Protection of interests of any Scheduled Tribe |
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19 (1) (e) |
Freedom of Residence |
19 (5) 2 Grounds |
Interest of general public |
Protection of interests of Scheduled Tribe. |
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19 (1) (f) |
Freedom of Profession, Occupation, Trade or Business |
19 (6) |
By the state making any law relating to: Protecting Public interest. |
Establishing professional/technical qualifications for a profession/ occupation, trade or business. |
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Enabling state to conduct any trade or business excluding citizens wholly or partially |
ARTICLE 20: Protection in respect of conviction for offences
ARTICLE 21 and 22: Protection of Life and Personal Liberty
ARTICLE 22
Article 22 grants protection to persons who are arrested or
detained. Detention is of two types - punitive and preventive. Punitive Detention is to punish a person for an offence committed by him after trial and conviction in a Court. Preventive means detention of a person without trial and conviction by a person for a past offence, but to prevent him from committing an offence in the near future.
No law providing for preventive detention shall authorize the detention of a person for a longer period than 3 months unless - an advisory board consisting of persons who are qualified to be appointed as judge of a High Court has reported before the expiration of the said period of 3 months that there is in its option sufficient cause for such detention.
ARTICLE 23 and 24: Right against Exploitation
ARTICLE 25 and 28: Right to Freedom of Religion
Cultural and Educational Rights
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ARTICLE 31-A, 31-B & 31-C
Art |
Relates To |
Amendment |
31 A |
Facilitate agrarian reforms |
1st Amendment, 1951 |
31 B |
None of the acts mentioned in 9th Schedule shall be deemed to be void on the ground that they are inconsistent with Part III of the Constitution. Legislature is competent to amend and repeal these acts. |
1st Amendment, 1951 |
31 C |
Empowers legislature to enact laws for implementing Directive Principles of State Policy under Articles 39 (b) & (c). Only Articles 39(b) & (c) have over-riding effect over fundamental rights. |
25th Amendment, 1971 |
ARTICLE 32: Right to Constitutional Remedies
Writs Under Article 32 |
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Habeas corpus means ?to produce the body of |
Order to the person who has detained another to produce the detainee before the court. This is issued to let the court know the grounds of confinement. This protects individual liberty. It is a powerful safeguard against arbitrary Acts not only of private individual but also of the Executive. |
Mandamus means ?a Command? |
Commands a public or quasi-public legal person to perform his duty. The writ of mandamus can be issued by the court to enforce Fundamental Rights: whenever a public officer or a Government has committed an Act violating a person's Fundamental Rights, the court can restrain that authority from enforcing such orders or committing such an act. |
Prohibition means ?to forbid? |
Issued by Supreme Court or High Court to a lower court forbidding it continue proceedings in a case beyond its jurisdiction or exercise jurisdiction which is not vested with it legally. The Supreme Court can issue the writ only where a Fundamental Right is affected because of jurisdictional defect in their proceedings. |
Certiorari means ?to be certified? |
Issued to a lower court after a case has 'to be certified' been decided by it quashing the decision or order. It ensures that the jurisdiction of an inferior court or tribunals is properly exercised. While prohibition is available during the pendency of the proceedings and before the order is made, certiorari can be issued only after the order has been made under similar circumstances. |
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Issued by the court to enquire into the legality of claim which a person asserts to a public office. The writ of quo warranto enables the public to see that a public office is not usurped by an unlawful claimant. |
The traditional rule to apply for redressal of breach of fundamental rights. The person whose right has been breached can approach the court (locus standi).
Right to Information
The right to information has been granted to citizens under the Information Act passed by the Indian Parliament in 2005.
The Act entitles every citizen to have access to information
Controlled by public authorities of both the Union and the State governments. The main objective of this right is to make the government open, transparent, responsive and accountable to the people. According to this law people can seek any information from the government, which is duty bound to provide the requisite information within a specified period of 30 days. If the concerned authorities do not provide correct and timely information, complaint can be lodged with the Central Information Commission/State Information Commission. If the requested information is denied to a person, he/she must be informed of the reasons for refusal. It may further be noted that the law does not apply to Jammu and Kashmir, or security agencies like IB, RAW and BSE. The other areas which have been excluded from the jurisdiction of the law include cabinet papers, legal advice relating to decision making, information likely to breach the privileges of the Parliament and state legislatures, etc.
Suspension of Fundamental Rights
Fundamental rights are not absolute and have limitations
regarding their exercise. The limitations strike a balance between individual liberty and social need.
Article 358 provides that during national emergency, President under Article 352, fundamental freedoms guaranteed by Article 19 are suspended and cannot be revived during emergency. Things done during emergency
cannot be challenged even after it is over.
Article 359 empowers the President to suspend the Right to move a Court for the enforcement of rights conferred by Part III of the Constitution (except Article 20 & 21) during an emergency.
Under Article 358, rights conferred by article 19 are suspended. Suspension under article 359 can only be by an order of the President.
Can Fundamental Rights be Amended
Directive Principles of the state Policy
Art |
Relates To |
38 |
Social order based on justice and to minimize inequalities in income, status, facilities and opportunities. |
39 |
Principles of policy to be followed by the State for securing economic justice in the form of: ? Means of Livelihood to all. ? Use of resources for common good. ? Prevention of concentration of wealth. ? Equal pay for equal work. ? Protection of workers. ? Protection of children and youth. |
39 A |
Equal justice and free legal aid to the poor. Legal aid and speedy trial are fundamental rights under Article 21 of the Constitution available to all prisoners and are enforceable by the courts. |
40 |
Organization of village panchayats. |
41 |
Right to Work, Education and Public assistance in some cases. |
42 |
Just and humane conditions of work. |
43 |
Living wage for workers. Living wage and not minimum wage. |
43 A |
Participation of workers in management. |
44 |
Uniform civil code. |
45 |
Free and compulsory education for children. |
46 |
Educational and economic interests of SC. ST and weaker sections. |
47 |
Standard of living and improvement in health. |
48 |
Agriculture and animal husbandry. |
48 A |
Protection of environment, forests and wildlife. |
49 |
Protection of monuments, places and objects of national importance. |
50 |
Separation of judiciary from the executive. |
51 |
Promotion of international peace and security. |
Directives in other Parts of the Constitutions
Besides the directives in part IV, there are certain other Directives in the Constitution, also non-Justiciable. These include Article 350 A which calls upon the state to provide adequate facilities for instruction in mother tongue at primary school level to children from linguistic minority groups. Article 351 calls upon the Union to promote the spread and development of Hindi to enable it to become the medium of expression of all the parts of the composite culture of India. Article 335 supports the claims of the Scheduled Castes and Scheduled Tribes to appointments in government service, subject to the maintenance of efficiency of administration.
Fundamental Rights arid Directive Principles: Difference
There is no doubt that both the Fundamental Rights and the Directive Principles of State Policy are important feature of the constitution. However, they differ from each other in certain points.
Differences -
(i) The Fundamental Rights seek to protect the individual from state encroachment and thus they are enforceable; the Directive Principles are aimed at the promotion of the
General welfare of society and they are not enforceable.
(ii) The Fundamental Rights constitute limitations upon State action; The Directive Principles are positive instructions to the government to take steps to establish a just social, economic and political order.
Fundamental Duties
Covered under Article 51-A (PART IV A) of the Constitution. ;
Added to the Constitution by 42nd amendment, 1976.
Added on the recommendations of "Swaran Singh Committee."
Originally 10 duties, but now increased to 11.
51-A (k) was added by 86th Amendment Act, 2002. (93rd amendment bill).
Borrowed from the Constitution of undivided USSR.
Article |
Relates to |
51 (A) (a) |
Abide by the Constitution and respect National Flag and National Anthem. |
b |
Follow ideals of the freedom struggle. |
c |
Protect sovereignty & integrity of India. |
d |
Defend the country and render national services when called upon. |
e |
Spirit of common brotherhood. |
f |
Preserve composite culture. |
g |
Protect natural environment. |
h |
Develop scientific temper. |
i |
Safeguard public property. |
j |
Strive for excellence. |
k |
Duty of all parents and guardians to send their children in the age group of 6-14 years to school. |
Verma Committee on Fundamental Duties
In 1999, the Verma Committee on Fundamental Duties of the citizens identified and pointed out the legal provisions for the enforcement of certain Fundamental Duties. The following are some of them:
(a) The Prevention of Insults to National Honour Act (1971) prevents disrespect to the Constitution of India, the
National Flag and the National Anthem.
(b) The Indian Penal Code declares the imputations and assertion prejudicial to national integration as punishable offences.
(c) The Wildlife (protection) Act 1972 prohibits trade in rare and endangered species.
(d) The Representation of People Act (1951) has provided for the disqualification of members of the Parliament or a State Legislature for indulging in corrupt practice of soliciting votes on the ground of religion or promoting enmity between different sections of people on grounds of religion, caste, race and language, etc.
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