Laxmikanth Ch 7: Fundamental Rights (CAPF Digest)

The idea in one line

Part III (Articles 12 to 35) is the justiciable charter of rights, enforceable directly in the Supreme Court under Article 32; it is the single most heavily tested chapter for CAPF and the one with the deepest human-rights bearing for a policing service.

The six rights (after the 44th Amendment, 1978)

Originally there were seven Fundamental Rights. The Right to Property (Article 31) was removed by the 44th Amendment 1978 and made an ordinary legal right under Article 300A. The remaining six are:

1. Right to Equality (Articles 14 to 18): equality before the law and equal protection of the laws (14); no discrimination on grounds of religion, race, caste, sex or place of birth (15); equality of opportunity in public employment (16); abolition of untouchability (17); abolition of titles (18).
2. Right to Freedom (Articles 19 to 22): six freedoms under Article 19 (speech and expression, assembly, association, movement, residence, profession); protection in respect of conviction for offences (20); protection of life and personal liberty (21); right to education (21A); protection against arrest and detention (22).
3. Right against Exploitation (Articles 23 and 24): prohibition of traffic in human beings and forced labour (23); prohibition of employment of children below 14 in factories and hazardous work (24).
4. Right to Freedom of Religion (Articles 25 to 28): freedom of conscience and free profession, practice and propagation of religion (25); freedom to manage religious affairs (26); freedom from taxation for promotion of a religion (27); freedom from religious instruction in certain institutions (28).
5. Cultural and Educational Rights (Articles 29 and 30): protection of the interests of minorities (29); right of minorities to establish and administer educational institutions (30).
6. Right to Constitutional Remedies (Article 32): the right to move the Supreme Court for the enforcement of Fundamental Rights, which Ambedkar called the "heart and soul" of the Constitution.

The five writs (Articles 32 and 226)

• Habeas corpus: "to have the body"; a court orders the production of a detained person to test the legality of the detention.
• Mandamus: "we command"; directs a public authority to perform its duty.
• Prohibition: issued by a higher court to a lower court to stop it exceeding its jurisdiction (preventive, before judgment).
• Certiorari: to transfer a case to itself or to quash an order of a lower court (curative, after the order).
• Quo warranto: "by what authority"; questions a person's claim to a public office.

The Supreme Court can issue writs only for the enforcement of Fundamental Rights (Article 32). The High Courts can issue writs both for Fundamental Rights and for other legal rights (Article 226), so their writ jurisdiction is wider.

Article 21 jurisprudence (high-yield)

• Maneka Gandhi (1978): "procedure established by law" under Article 21 must be just, fair and reasonable, linking Articles 14, 19 and 21.
• Article 21 has been read to include the right to live with human dignity, livelihood, a clean environment, health, shelter, speedy trial, legal aid and privacy.
• K. S. Puttaswamy (2017): the right to privacy is a Fundamental Right under Article 21.
• Article 21A: the right to free and compulsory education for children aged 6 to 14, added by the 86th Amendment 2002.

Who is bound and what is "the State"

Article 12 defines the "State" widely (the Government and Parliament of India, State governments and legislatures, local authorities, and other authorities) so that rights bind the public apparatus. Article 13 declares void any law inconsistent with Fundamental Rights and is the textual basis of judicial review.

Reasonable restrictions and other limits

The freedoms are not absolute. Article 19 freedoms can be restricted on grounds such as the sovereignty and integrity of India, public order, decency, morality and security of the State. Article 33 lets Parliament restrict the rights of the armed forces, paramilitary forces and police to ensure discipline. Article 34 covers restrictions while martial law is in force. Article 35 vests in Parliament the power to make laws on certain Fundamental Rights matters.

CAPF angle: this chapter is the spine of the security and human-rights overlay. Article 22 gives an arrested person the right to be informed of grounds of arrest, to consult a lawyer, and to be produced before a magistrate within 24 hours, but those safeguards do not apply to enemy aliens or to preventive detention. Preventive-detention laws (the National Security Act 1980 and others) allow detention without trial subject to an Advisory Board and a maximum period, so they sit at the boundary of liberty and security that CAPF officers police. Article 33 directly authorises curtailing the rights of the forces in which CAPF officers serve. Article 17 (untouchability) and Article 23 (trafficking and bonded labour) are routinely tested as human-rights provisions.