Rights - Types

Civil rights	Ex: Freedom of speech
Political rights	Ex: Right to vote
Social rights	Ex: Right to health
Economic rights	Ex: Right to property

Fundamental Rights FR

FR are not sacrosanct (they may be curtailed)
FR are not permanent (they are amenable)
They are not exclusive rights provided by constitution.

There are rights which are outside Part III in Constitution

Article 265 - No tax without Law

Article 300A - Property rights

Article 326 - Elections based on adult suffrage

Significance of FR

They check the absoluteness of the authority of Govt
Establishes rule of law
Strengthens secular fabric and protect the minorities against majoritarianism

Directive Principles of State Policy DPSP

Instrument of Instructions to Legislature and Executive (Not to Judiciary, but helps judiciary in determining the constitutional validity of any law)
Fundamental to governance of country
Strive for

Social, economic and political programme
Realise Justice, Liberty, Equality and Fraternity
Concept of welfare state
Moral obligation
Beacon lights to the courts
Amplify the preamble
Common Political Manifesto

FR and DPSP are soul/conscience of constitution

Fundamental rights provide civil and political rights to people while DPSP provides social and economic rights

Fundamental Duties FD

Both civic duties and moral duties

Tit-bits

(Remember the rights below, as they will be asked directly in Prelims)

Some Fundamental rights

Right to legal aid is a FR under Article 21

Right to internet is fundamental right under Arti cle 19

Freedom of speech and expression through the medium of internet - Art 19(1)(a)
Freedom of trade and commerce through internet - Art 19(1)(g)
FR under some restrictions; Doctrine of Proportionality
Jan 2020: SC ruled Right to Internet is fundamental right
Kerala HC also ruled that Right to internet is a FR under Right to Privacy which is under Art 21

Right to form political party is a fundamental right under Article 19(3)

Right to Privacy is Fundamental Right under Article 21 [Though not an absolute right; Pu tt Swamy Judgement]

Right to marriage is FR under article 21
Right to internet is FR under Article 19

Some constitutional rights

Right to contest an election is a constitutional right. Right to contest an election to Panchayat is a constitutional right
Right to vote is a Constitutional right [Official Answer Key of UPSC 2017][Article 326]
Right to property is a constitutional right under Article 300A (Official answer key of UPSC. )

Article 300A, which provides for Right to Property, required the state to follow due procedure and authority of law to deprive a person of his or her private property. Hence as provided in the constitution, it is called constitutional right

Not rights

Reservations is not a right. Provisions in the constitution relating to reservations are enabling provisions but not rights. SC in Feb 2020
Right to strike does not comes under Right to Freedom of Speech and Expression

No ex-post-facto law - only in case of criminal proceedings but not for civil laws or tax laws
No double jeopardy - only in case of judicial proceedings in court of law or a judicial tribunal but not for administrative and departmental proceedings since they are not of judicial nature
No Self-incrimination (no compelling to be self-witness) for criminal cases. May be compelled for non-criminal cases
Tribal people can reside anywhere in the country but outsiders cannot reside in tribal areas. Freedom of movement to any part of country is constrained
Preventive detention is in Concurrent List. However Parliament has exclusive authority of preventive detention laws on subjects like defence, foreign affairs and security of India
Prevention detention is applicable only to Criminal and Quasi Criminal Cases but not civil cases
Protection against arrest is applicable only to Criminal and Quasi Criminal Cases but not for civil cases

Implies that a pers on can be arrested and need not be produced in court even more than 24 hours for civil cases
Not applicable to enemy alien implies that he can be arrested whatsoever

Under Article 13 Definition of law, Constitutional Amendment Acts CAA are not included which implies that CAA are not challengeable in the court. However in the Kesavananda Bharti Case, CAA can be challenged if it amends basic structure of constitution in which FR is a part of it.

So when a Question comes whether the CAA are included in the Article 13. We should answer it is NOT

Constitutional amendment acts and judicial orders will not come under the definition of law under Article 13. However, they are subjected to judicial review
In India, Constitution is the source of individual rights
Right to move to SC/HC for constitutional remedies for enforcement of FR can be taken away/suspended during National Emergency or by the Parliamentary law under Article 33 martial courts or by the constitution as specified

Article 14 forbids class legislation but permits reasonable classification of persons, objects and transactions by law
Under Article 16, State cannot discriminate on the grounds of religion, race, caste, sex, place of birth, descent and residence (Under Article 15, descent and residence not mentioned)
Article 33

Restriction of FR w.r.t members of armed forces, para military, police, intelligence and analogous forces
Only parliament is empowered to legislate on this subject but not by State legislatures
Members of armed forces include barbers, carpenters, cooks, tailors who are non combatants

Fundamental rights w.r.t National Emergency

Article 20, 21 can never be suspended in any case
In case of National emergency, only Article 19 is automatically suspended only in case of war or external aggression. Article 19 is not automatically suspended in case of armed rebellion
In case of National emergency, beside the automatic suspension of Article 19 in case of war or external aggression, President can declare the specific suspension of FR under Article 35 except 20,21 (those rights will be mentioned in the Presidential Order for suspension )
Even article 32 can be suspended manually during emergency

	under	War/External aggression	Armed rebellion
Article 20, 21	-	No suspension	No Suspension
Article 19	Article 358	Auto suspension	President Manual Suspension of enforcement (parliament approval)
Other FRs	Article 359	President Manual Suspension of enforcement (parliament approval)	President Manual Suspension of enforcement (parliament approval)

President Manual Suspension of enforcement means

the rights are present as such but their enforcement is not guaranteed i.e. remedies does not exist
Specific rights and for specific/ all period and specific area/across country

Only laws/executive action which are related to emergency are protected from being challenged

Fundamental Rights w.r.t Foreigners

Except the Fundamental Rights under the articles 15, 16, 19, 29 and 30 all the Fundamental Rights are available to both citizens and foreign nationals

15 - Can discriminate for example in voting rights

16 - Can give more opportunities for citizens

19- freedom of speech

29 -Protection of interests of minorities.

30 - Right of minorities to establish and administer educational institutions.

Note:

Article 22 - Protection against arrest and detention is not available to enemy aliens.
Cultural and Educational rights not available to foreigners while Religious freedom available

	Protection against State/Private	Beneficiaries- Foreign/Citizen
14 Equality before law and equal protection under law.	State	Both Foreigners and Citizens (legal persons also)
15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.	Provision A- State Provision B- State & P Individual	Can discriminate foreigners
16 Equality of opportunity in matters of public employment.	State	Can discriminate foreigners
17 Abolition of Untouchability.	Both State and Private Individual	Both Foreigners and Citizens
18 Abolition of titles.	Private Individual	Both Foreigners and Citizens
19 Protection of certain rights regarding freedom of speech & expression, associate, assemble, movement, residence and profession	State	Citizens and shareholders But not to foreigners, other legal persons
20 Protection in respect of conviction for offences.	State	Both citizens, foreigners, legal persons
21 Protection of life and personal liberty.	State	Both Foreigners and Citizens
21A Right to Elementary Education	State	Both Foreigners and Citizens
22 Protection against arrest and detention in certain cases.	State (protection only against criminal and quasi criminal cases)	Ordinary law- Not available to enemy alien Preventive detention law- Both citizens and foreigners
23 Prohibition of traffic in human beings and forced labour.	State and private individual	Both Foreigners and Citizens
24 Prohibition of employment of children in factories, etc.	State and private individual	Both Foreigners and Citizens
25 Freedom of conscience and free profession, practice and propagation of religion.	State and private individual	Both Foreigners and Citizens
26 Freedom to manage religious affairs.	State	Both Foreigners and Citizens
27 Freedom as to payment of taxes for promotion of any particular religion.	State	Both Foreigners and Citizens
28 Freedom as to attendance at religious instruction or religious worship in certain educational institutions.	State	Both Foreigners and Citizens
29 Protection of interests of minorities. (religious as well as linguistic)	State [Applicable to minorities and majority as well]	Not Applicable to Foreigners
30 Right of minorities to establish and administer educational institutions. (religious as well as linguistic)	State	Not Applicable to Foreigners
32 Remedies for enforcement of rights conferred by this Part.	State	Both Foreigners and Citizens

Fundamental rights and exceptions to it

Right

Exception grounds

14 Equality before law and equal protection under law.

Refer below

15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Doctrine of reasonableness, proportionality, reasonable classification

Women and Children 15(3)

OR Any socially and educationally backward classes of citizens
OR Scheduled Castes
OR Scheduled Tribes
OR Economically Weaker Sections
In some cases, giving effect to DPSP

16 Equality of opportunity in matters of public employment.

Doctrine of reasonableness, proportionality
Residence as a condition for employment- 16(3)
OR Backward classes if not adequately represented - 16(4)
OR Religious person to religious denominations - 16(5)
OR Economically Weaker Sections - 16(6)
In some cases, giving effect to DPSP

17 Abolition of Untouchability.

-

18 Abolition of titles.

military or academic distinction

19 Protection of certain rights regarding

freedom of speech & expression,

associate,

assemble,

movement,

residence and

profession

freedom of speech & expression,	Reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
assemble	sovereignty and integrity of India or public order, reasonable restrictions
associate	sovereignty and integrity of India or public order or morality, reasonable restrictions
movement	reasonable restrictions in the interests of the general public or for the protection of the interests of any Scheduled Tribe
residence	reasonable restrictions in the interests of the general public or for the protection of the interests of any Scheduled Tribe
Profession	Professional or technical qualification State owned entities Reasonable restrictions

20 Protection in respect of conviction for offences.

Ex-post facto law	Civil cases, tax laws; Criminal offence trails
Double jeopardy	Administrative/Departmental proceedings
Self incrimination	Civil cases

21 Protection of life and personal liberty.

21A Right to Elementary Education

22 Protection against arrest and detention in certain cases.

Enemy alien
Preventive detention

23 Prohibition of traffic in human beings and forced labour.

Compulsory service for public purpose

24 Prohibition of employment of children in factories, etc.

-

25 Freedom of conscience and free profession, practice and propagation of religion.

public order, morality and health
regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
providing for social welfare and reform

26 Freedom to manage religious affairs.

public order, morality and health

27 Freedom as to payment of taxes for promotion of any particular religion.

Fee

28 Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

29 Protection of interests of minorities/any citizen. (religious as well as linguistic)

-

30 Right of minorities to establish and administer educational institutions. (religious as well as linguistic)

-

32 Remedies for enforcement of rights conferred by this Part.

National emergency/Martial law

Right to Equality violation

Provisions 14-18

14 Equality before law and equal protection of law

15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

16 Equality of opportunity in matters of public employment.

17 Abolition of Untouchability.

18 Abolition of titles.

However, there are exceptions to right to equal ity and reasonable classification (intelligible differentia) can be made by law.

(class legislation is prohibited)

Provisions giving effect to DPSP

FR enjoys supremacy over DPSP. However for implementation of DPSP, FR can be amended without altering the basic structure of constitution. [Specific DPSP 39b and 39c supreme over FR 14,19 still valid].

Reservations for SC, ST, socially and educationally backward classes and economically weaker sections

These excepts are valid and are included in the constitution itself

Doctrine of Reasonableness (Reasonable classification)

Classification must be based on intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of group and the differentia must have a rational nexus to the objects sought to be achieved by the executive or legislative action under challenge

Doctrine of Proportionality (proportionate equality) and substantive equality

State restrictions vs Fundamental rights

Ex: Banning internet in Kashmir after revocation of Article 370 is against Right to Freedom

Freedom of speech vs Law & order

Article 15 says not to discriminate in general and educational institutions . However Article 15(3), 15(4 & 5) , 15(6) are exception which means that State can discriminate/make special provisions for advancement of

Women and Children
OR Any socially and educationally backward classes of citizens
OR Scheduled Castes
OR Scheduled Tribes
OR Economically Weaker Sections

Article 16 says not to discriminate in matters of public employment . However there are exception which means that State can discriminate/make special provisions

Residence as a condition for employment- 16(3)
OR Backward classes if not adequately represented - 16(4)
OR Religious person to religious denominations - 16(5)
OR Economically Weaker Sections - 16(6)

Conflicts b/w Fundamental Rights FR and DPSP

Fundamental Rights FR

Directive Principles of State Policy DPSP

Constitutional Amendment Acts CAA

One of the conflict case was right to property

Original Constitution	No conflict foreseen
1951 Champakam Dorairajan Case	SC ruled that incase of any conflict b/w FR and DPSP, FR would prevail DPSP should conform and act as subsidiary to FR To resolve conflicts, FR could be amended by CAA f or implementing DPSP
Accordingly Parliament	Accordingly, 1st CAA 1951, 4rth CAA 1955 , 7th CAA 1964 enacted to implement some DPSP
1967 Golaknath case	Parliament cannot abridge or taken away the FR which are sacrosanct FR cannot be amended for implementation of DPSP
Parliament counter	24rth CAA 1971 Parliament has power to amend FR by CAA's 25th CAA 1971 - Inserted Article 31C Provision 1- No law which seeks to implement DPSP 39b and 39c shall be void on the ground of FR 14,19,31 Provision 2 -No law related to this cannot be questioned in any court Summary: Specific DPSP supremacy over specific FR and made Judiciary unreviewable
1973 Kesavananda Bharati Case	Judicial review basic structure of Constitution. Hence Provision 2 of 31C invalid Provision 1 of 31 C is valid and constitutional
1976 42nd CAA	All DPSP supremacy over specific FR 14,19,31
1978 44rth CAA	FR 31 is repealed
1980 Minerva Mills case	Specific DPSP 39b and 39c supreme over FR 14,19 Stated that DPSP and FR are two wheels of a chariot and both are equally important and needs balance Harmony and Balance b/w FR and DPSP is essential feature of basic structure of constitution DPSP should be implemented without abrogation of means of FR
Now	FR enjoys supremacy over DPSP. However for implementation of DPSP, FR can be amended without altering the basic structure of constitution. [Specific DPSP 39b and 39c supreme over FR 14,19 still valid]. Order of preference - FR except 14 and 19. -> DPSP 39(b) and 39(c). -> FR 14 and 19. -> DPSP except 39(b) and 39(c).

What is Article 39(b)?

The State shall, in particular, direct its policy towards securing: that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.

What is Article 39(c)?

The State shall, in particular, direct its policy towards securing: that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment

31C - Saving of laws giving effect to certain DPSP

International Covenant on Civil and Political Rights ICCPR

Multilateral treaty by UN. India is a member to it
The covenant commits its parties t o respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.
Parties of this covenant should Legally protect persons against “arbitrary interference” with one’s privacy, family, home, correspondenc honour and reputation.

Part 3,4,4A - FR DPSP FD