JMFC Civil Judge Exam Gujarat -Day-8- Quick Summary of Fundamental Rights – Indian Constitution.

ByVakil Saheb

Jan 28, 2021 #civil judge exam gujarat, #Constitution

Part-III of the Indian constitution from article 12 to 32, contains fundamental rights.
Part-III of the Indian constitution is called corner stone of the constitution and together with part-4 (directive principles and state policy) constitutes the conscience of the Constitution. This chapter of the Constitution has been described as the Magna Carta of India.
Fundamental Rights are individual rights are enforced against the arbitrary invasion by the state except, in the case of Art. 15 (2), Article 17, Article 18(3-4), Article 23 and Article 24 where these can be enforced against private individuals also.
FRs are not absolute rights and parliament could put reasonable restriction. The grounds for the restriction may be the advancement of SCs, STs, OBCs, women and children; general public order; decency, mortality, sovereignty & integrity of India; security of the state, friendly relations with foreign states, etc.
According to Article 12, ‘the state’ includes the
1. Government and Parliament of India.
2. Government and Legislature of States.
3. All local or state authorities such as municipalities, panchayats, district boards, improvement trusts, etc . within the territory of India or under the control of Government of India.
  1. Right to equality (Article 14-18)
  2. Right to freedom (Article 19-22)
  3. Right against exploitation (Article 23-24)
  4. Right to freedom of religion (Articles 25-28)
  5. Cultural & educational rights (Articles 29-30)
  6. Right to Property (Article 31)
  7. Right to constitutional remedies (Article 32).
  But, Right to property was removed from the list of the Fundamental Rights by the 44^thConstitution Amendment Act, 1978 and after amendment, it was made legal right under Article 300-A in part-12 of the constitution.
(Equality before law):
- Article 14 says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
- Art. 14 is available to any person including legal persons viz. statutory corporation, companies, etc.
- Art. 14 is taken from the concept of equal protection of laws has been taken from the constitution of USA.
- The concept of the rule of law is a negative concept while the concept of equal protection of laws is a positive concept.
- The concept of equality before the law is equivalent to the second element of the concept of the ‘rule of law’ propounded by A.D. dicey, the British jurist. But certain exceptions to it are, the president of India, state governors, Public servants, Judges, Foreign diplomats, etc., who enjoy immunities, protections, and special privileges.
(Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth):
- Article 15 says that the state shall not discriminate against only of religion, race, sex, place of birth or any of them.
- Under Article 15 (3) & (4), the government can make special provisions for women & children and for a group of citizens who are economically and socially backward.
(Equality of opportunities in matters of public employment)
- Article 16 says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
(Abolition of Untouchability)Article 17 says that Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offense punishable by law.
(Abolition of titles)
- Article 18 says that no title, not being a military or academic distinction, shall be conferred by the State. No citizen of India shall accept any title from any foreign state.
- The awards, Bharat Ratna, Padma Vibhuhan, Padma Bhusan and Padma Shri, called as The National Awards would not amount to title within the meaning of Article 18(i)
.
(Protection of certain rights regarding freedom of speech, etc.)Article 19 says that all citizens shall have the right
1. to freedom of speech and expression.
2. To assemble peacefully and without arms.
3. To form associations or unions.
4. To move freely throughout the territory of India.
5. To practice any profession or to carry on any occupation, trade or business.
(Protection in respect of conviction for offenses)Article 20 says that state can impose reasonable restrictions on the groups of security of the state, friendly relations with foreign states, public order, decency, morality, contempt of court, defamation, etc..
deals with Protection of life and personal liberty.
states that that state shall provide free and compulsory education to all children of the age of 6-14 years..
deals with protection against arrest and detention in certain cases..
deals with the prohibition of traffic in human beings and forced labour..
deals with prohibition of employment of children in factories, etc..
deals with freedom of conscience and free profession, practice, and propagation of religion..
deals with the protection of language, script, and culture of minorities..
deals with the right to move to the supreme court for the enforcement of Fundamental Rights including the Writs of (i) Habeas corpus, (ii) Mandamus, (iii) Prohibition, (iv) Certiorari and (iv) Quo warranto..

1. Habeas Corpus:

A writ of habeas corpus is in the nature of an order calling upon the person who has detained another, to produce the latter before the Court in order to let the Court know on what ground she/ he has been confined and to set him/her free if there is no legal justification for the imprisonment.

2. Mandamus:

Mandamus literally means ‘we command.’ It commands the person, to whom it is addressed to perform some public or quasi-public legal duty which she/he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy.

3. Prohibition:

The writ of prohibition is a writ issued by the Supreme Court or a High Court to an inferior court forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which, it is legally not vested.

4. Certiorari:

The literal meaning of the word ‘certiorari’ is “to be more fully informed of”. Though prohibition and certiorari are both issued against Courts or tribunals exercising judicial or quasi-judicial powers, certiorari is issued to quash the order or decision of the tribunal while prohibition is issued to prohibit the tribunal from an ultra vires order or decision.

5. Quo Warranto:

Quo warranto is a proceeding whereby the court enquires into the legality of the claim which a party asserts to a public office, and to oust him/her from its enjoyment if the claim is found to be fake or invalid.

The conditions necessary for the issue of a writ of quo warranto are as follows:

(i) The office must be public and it must be created by statute or by the Constitution itself;

(ii) The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.

(iii) There has been a contravention of the Constitution or a statute or statutory instrument, in appointing such a person to that office.

The fundamental basis of the proceeding of quo warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. It is, however, a discretionary remedy that the court may grant or refuse according to the facts, and circumstances in each case. Quo warranto is thus a very powerful instrument for safeguarding against the usurpation of public offices.