PSIR Optional

Fundamental Rights

POLITY for Civil services
deepanalysis
Article 19 (1) – 
Salient Features – 
  • Art 19 (1) gives the following 6 freedoms –
    • To freedom of speech and expression (a).
    • To assemble peaceable without arms (b).
    • To form associations or unions for co-operatives (c).
    • To move freely throughout the territory of India (d).
    • To reside and settle in any part of India (e).
    • To practice any profession, or to carry on any occupation, trade or business.
  • These are rights which always come with reasonable restrictions these are collectively called as the democrat rights because without them there will be no govt by off, for people also India will become a police state.
  • Freedom of S & E is linked to art 21 both have been progressively interpreted and gives expanded/amplified meaning so that they have given the source of numerous inferred rights. SC in this regard has its fingers on pulse of nation, the constitution has emerged as a living, organic and evolving document and these 2 articles can take us towards an idea of welfare state.
  • Art 19 (1) (a) is considered to be as inalienable adjunct to art 21 because without it there is no dignified life. In fact the link between these two have grown with times so that RTI is inferred from both.
  • Art 19 (1) (a) is composite right with following limbs namely –
    • Right to access information.
    • To form informed choice.
    • Express freely one’s own view.
    • Express the views of others as above (freedom of press).
    • The voice of opposition right to dissent.
  • S & E may be reasonably restricted by legislation on one or more of these grounds.
  • Right to access information may be from available source as also the source that we seek under RTI act. Available sources may be internal, external ex – TOI, BBC. RTI is a FR, RTI act provides for a mechanism to access info. The recent amendment to RTI act is downgrading status of CIC, IC, SIC, also making their condition of service and tenure subject to central policy. Raising the ground of attack on their independence. Govt claims it is to streamline certain in consistencies also centre claims to invoke residuary powers.
  • The Right to form informed opinion is crucial in democratic elections and democratic market.
    • Every candidate contesting election must disclose his education qualification, asset, liabilities and criminal part to all voters so that they may make an informed choice (ADR Case).
    • Under 19 (1) (a) voters not only have rights to cast positive vote but also right to reject all candidates by negative vote hence NOTA is justified (PUCL Case).
    • In Public Interest foundation case SC has lamented that despite repeated request political parties are still fielding candidates with criminal past so in future they must self publicise the names with charges on their official website.
    • Commercial parts of commercial advertisements is not protected but information is protected, it is FR not not only of the consumer but also of manufacturer and service provider, this is crucial in a democratic market. The freedom to freely express means withour fear of favour from govt and by whichever mode means through sign, spoken, written, sports, dance, drama, paintings, culture, documentary, tiktok videos, motion pictures. Silence may be a form of expression with or without consequence. Hoisting fall in private place and private capacity.
    • Freedom of press is freedom to print without license subject consequence of law it has qualitative and quantitative aspects. “Press” includes print, electronic, digital media.
    • Voice of opposition can’t be crushed so we have multiparty opposition based accountable govt with zero hour, question hour, privilege motion in parliamentary proceedings.
Landmark Cases – 
  • In Subhramaniam case IPC 499, 500 are valid because they reasonably restrict 19 (1) (A) to promote 21, which includes reputation for dignified life (no chilling effect). They are inline with FR and required in digital world.
  • In Shreya Singhal case judgement enhancement of punishment was justified because digital medium is inexpensive, irregulated, wide weep and lightening speed.
    But Sec 66 A is invalid because it uses word not mentioned in 19 (1) (info that injures, insults, annoys etc) further the words are undefined prone to misuse by executive the choice of words show excessiveness and not reasonableness.
Sedition – 
  • Sec 124 (A) IPC – Causing disaffection or disloyalty against lawfully established govt in India, punishable with 3 yrs or life imprisonment. Those against this section have raised the ground that it cause dilution of executive accountability further that it intimidates us causing a chilling affect on 19 (1) (A) that these are British time laws using vague words and so should be repealed. Those in favour site terrorism, insurgency and Maoist movements in support of section. SC in Kedarnath Singh’s case has held that ill time language is in zone of debate, dissent or even advocacy of viewpoint opposite of govt it is not sedition but the movement it enters the zone of incitement to offence it may be sedition. If it adversely affects sovereignty and integrity of India, security of state, maintenance of public order and friendly relations with foreign states. Recently Mr Vaiko has been convicted under 124 (A) through controversially suggestion is that we must add the test laid down by SC. By the way under section itself.
Art 19 (1) (B) – Freedom of Assembly and to form associations unions and cooperative societies – 
Salient Features – 
  • Assembly should be peaceful without arms and subject to it, it may be stationary (meeting), mobile (procession), demonstration or even picketing.
  • Associations should be lawful which is to say that the purpose of any social, economic, political associations should not be towards achieving towards a purpose prohibited by law.
  • The right to strike is not fundamental, but merely statutory under industrial disputes act 1947.
  • For a valid strike the following features must exist –
    • It should be after due notice has been given by union leaders to employers.
    • Essential services like ciil supplies, public transport, banks etc, should not get adversely affected.
    • Doctors however can go on relay strike, but will cat strikes called by workers is illegal.
    • Bundh is illegal and unconstitutional because –
      • There is always an element of force or threat involved against body and property of non-participant.
      • It is the form of general strike which completely paralyses the entire socio-economic, political fabric of nation. It also adversely affects essential services.
      • There can’t be a right to violate rights of others, bundh does not allow others to enjoy their freedom of movement or right to livelihood (CPM vs Bharat Kumar). 19 (1) (B) maybe reasonably restricted on the grounds of sovereignty, integrity and maintenance of public order.
Art 19 (1) (C) additionally on grounds of morality.
Common point or all FRs – 
  • Under art 33 parliament by law may reasonably restrict FR of those working in armed force etc, on the ground of maintenance duty and discipline.
Freedom of Movement, Residence and Settlement 19 (1) (D) and (E) – 
  1. Free means citizen decides where, when and how to go. 19 (1) (D) is limited to freedom of movement within territory of India while going abroad and returning covered by art 21.
  2. Residece refers to temporary stay and settlement to permanent stay.
  3. ILPS is a British time policy to designate any area as prohibited area because of dominant provide regulations. Post Independence power to implement ILP is with central govt as of now ILPS is in Arunachal, Nagaland, Mizoram.
  4. Meghalaya and Assam are demanding ILPS to counter the claims of illegal migrants that they are citizen from another states, however ILPS can’t be implemented in non tribal areas of state.
  5. Meitis from Manipur are demanding implementation of ILPS but Nagas and Kukis are opposed to it. The Meiti dominated legislature has legislated in favour of ILPS but central ovt has not authorised. This dispute has taken the colour of ethnic colour.
  6. Foreigners are not allowed in some strategically and ecologically sensitive areas designated as protected areas under the foreigners protected area order 1958.
  7. Restriction on residence and settlement may be seen in tribal area of Himachal, more in Nicobar, less in Andaman but no longer in J&K.
  8. Together (1) (D) & (E) promote unity and integrity of nation. (1) (E) is natural corollary too (1) (D) they may be reasonably restricted on the grounds of interest of general public and interest of ST.
Art 19 (1) (G) and Art 19 – 
  1. It gives us freedom to choose one’s own allocation, it includes the right to start as well as stop the business.
  2. General ground for restricting all of them is in interest of general public. Specifically profession may be restricted by prescribing eligibility criteria, which may be educational, physical, moral etc. Trade and business may be restricted by creating monopoly in favour of state. Ex – Arms and ammunitions, liquor, space, mineral, metal etc.
  3. While restriction is allowed prohibition is not so dance bars of Bombay could not be completely banned. The ban on butcher community regarding trade in beef was restriction not prohibition because they could trade in other types of flesh.
  4. 19 (1) (G) is complemented by art 301, reasonable restrictions on 301 may be imposed under 304 (A) and (B).
Art 20 – 
  1. This art gives protection under 3 condition –
    1. Ex-post facto criminal law.
    2. Double jeopardy.
    3. Self incriminating evidence.
  2. Criminal law can’t be retrospective in operation but must always be prospective i.e the recent amendment to rape laws, which was post Nirbhaya incident (enhanced punishment for double rape) could not be applied in Nirbhaya case. Similarly post Kathua amendment to rape laws (death sentence in case victim is minor) could not be applied in Kathua case.
  3. Civil law may be retrospective as was the 85th amendment w.r.e.f from 1915.
  4. Retrospectivity is not allowed criminal law because it will lead to political victimisation and also criminal law requires a guilty mind to punish.
  5. Both definition as well as quantum of punishment can’t be given effect from backdate.
  6. No person may be persecuted and punished for same offence more than once. There can’t be two sets of criminal punishment for one act of crime but there can be one civil and once criminal consequence for same act. Ex – for accepting bribe a civil servant may be jailed and also may be terminated from service.
  7. An accused can’t be forced to be an evidence against himself.
  8. However, statement given before judicial magistrate may become basis of conviction and is admissible as evidence (section 144 CRPC).
  9. Police by force can collect fingerprint, blood and tissue sample because this is not incrimination but investigation.
  10. Also if based on such statement some recovery is made than the statement becomes admissible.
  11. Under PMLA statement before police is admissible.
  12. The deletion detection tests like polygraph, narco analysis and brain map whether may be used in investigation or not SC in Selvi case held that no one can be forced to undergo these tasks, statement recorded under these can’t become basis of conviction but if recovery is made then statement becomes admissible (permission is must).
Article 21 – 
  1. Absence of word state means this art is addressed both to state and individual neither state not individual can deprive other person of his life and liberty except according to due process of law.
  2. Absence of word alien means this right is available to citizens as well as non-citizens.
  3. Use of word life which has been given amplified meaning has become source of numerous FR.
  4. From DPSP – RTE, Pollution free environment, Legal assistance etc.
  5. Social and Economic Rights – Right to food, water, shelter, privacy, livelihood.
  6. Undertrials and convicted criminals – Speedy trials, no hand cuffing, no solitary confinement, undertrial not to be kept with convicts, condemned person to execution to without undue delay.
  7. A.K Gopalan case judgement was overruled by Maneka Gandhi case to hold that personal liberty is same as liberty and is not limited to physical protection against torture, amputation, organ harvesting etc. Further held that rules of fairness, non arbitrariness and reasonableness should be read implicitly under art 21 i.e principles of natural justice should be read along with procedure established by law thus emerged the concept of due process of law in India.
  8. Procedure established vs Due process –
    1. In a system with procedure established any arrest or dentition would be examined under 3 questions –
      1. Whether a law exists which allows for deprivation of life and liberty.
      2. Whether that law was made by a constitutionally competent legislature.
      3. While legislation whether legislature had followed the prescribed procedure.
    2. In a country with due process the courts over and above these questions will also ask whether the law is fair reasonable, non-arbitrary, non-oppressive, only then it will validate arrest and detention.
    3. Due process is America’s concept which protects both against legislature and executive excessiveness, it makes the judiciary more peaceful.
    4. Procedure established is British concept which relies more on legislative goodness and also public opinion.
  • Right to Privacy – Salient Features – 
    • Puttaswamy (9JB) held that Maneka Gandhi’s case and overruled.
    • To hold that RTP is a FR.
    • RT Liberty and personal liberty may be inferred from various art of part 3. Similarly RTP can be derived from various art of part 3 and not just art 21, thus these FR have been broad based made more powerful with more interpretative values.
    • RTP is functional along the following aspects –
      • It makes possible dignity in India because privacy is at the core dignity.
      • It makes possible liberal democracy in India, where citizens are entitled to certain rights and also enjoyment of those rights.
      • It protects those eternal values which are the very basis of life and liberty.
      • It protects our intimate zone which is body, life, family, marriage, sexual orientation and procedure.
      • It protects the redesigning of our intimated zone both in personal and public space thus it protects our composite culture.
      • RTP has both negative and positive aspects, state must not violate it, state must take positive steps to protect it (Shri Krishna Committee report on data protection).
      • RTP is not absolute and may be reasonably restricted by a legislation with legitimate purpose to promote it must pass test of proportionality.
  • Aadhar Judgement – 4:1
    • Aadhar is not mandatory but if anyone wants to avail benefits of any scheme for which money comes from CFI then Aadhar is required.
    • Aadhar is not mandatory for school admission but if any student wants to avail benefits of scheme for which money comes from CFI then with parental permission Aadhar member may be generated (right to withdraw from Aadhar or reaching adulthood and also non-deprivation in its absence).
    • Aadhar act is not establishing a surveillance state because –
      • Minimal data collected can create identity but not a profile.
      • Info stored in info silos can not be collated for meta data.
      • Authentication is purpose blind.
      • Tech architecture review bond and security comm
      • Aadhar act is not violating RTP, because it passes triple test.
      • Aadhar act is justified as a money bill because there is substantial nexus between Aadhar act and CFI.
      • Following provisions were dilution –
        • Identity disclosure.
        • Data archiving 6 months only.
        • Private parties not to use Aadhar.
  • Navtej Johar – 
    • It has discriminated sec 37 IPC w.r.t consensual acts of homosexuality, but not for non consensual acts and unnatural offences.
    • The reason being violating of art 21 i.e dignified life, intimate zone, sexual orientation further violation of art 19 (1) (A) and of consensual morality.
    • The judgement has also laid down the principle of progressive realisation of rights.
  1. Right to Die – 
    1. Gyaan Kaur judgement overruled Ratinam judgement held that Right to Die does not exist because it goes against basic human value which is towards protecting life and also is prone to misuse thus sec 306 and 309 are constitutionally valid.
    2. Aruna Shawhney ase has suggested leniency towards mentally depressed people who attempt suicide, mental healthcare act has created exception in their favour.
    3. Aruna case held that active and physician assisted Euthanasia are illegal but passive euthanasia may be justified by HC order on recommendation of committee of does.
    4. Common cause judgement has recognised right to dignified death under art 21 and also right to living will.
    5. Living will only by person with legal capacity by free will, signed by 2 independent witness counter signed by CJoHC.
    6. Rajasthan HC in Nikhil Soni case held Santhara to be violative of art 21 SC has issued stay order those in favour of Santhara distinguish it from suicide and derive support from art 25 and 29.
  2. Article 21 A – 
    1. 86th CAA 2002 has introduced art 21 A, 51(A)(K) and amended art 45.
    2. State shall provide free and compulsory education to all children of age grp of 6-14 yrs in the manner provided by legislation by state.
    3. Primary education of equitable and satisfactory quality, on full-time.
    4. A.K Gopalan case judgment was overruled by Maenka Gandhi case to hold that personal liberty is same as liberty is not limited to physical protection against torture amputation, organ harvesting etc. Further held that rules of fairness, non arbitrariness and reasonableness should be read implicitly under art 21 i.e principles of natural justice should be read along with procedure estd by law thus emerged the concept of due process of law in India.
    5. Procedure established by due process –
      1. In a system with procedure established any arrest or detention would be examined under 3 questions –
        1. Whether a law exists which allows for deprivation of life and liberty.
        2. Whether that law was made by a constitutionally competent legislature.
        3. While legislation whether legislature had followed the prescribed procedure.
      2. In a country with due process the courts over and above these questions will also ask whether the law is fair reasonable, non-arbitrary, non-oppressive, only then it will validate arrest and detention.
      3. Due process is American concept which protects both against legislative and executive excessiveness, it makes the judiciary more powerful.
      4. Procedure established is British concept which relief more on legislative goods and also public opinion.
  3. Right to Privacy – 
    1. Puttuswamy 9 judges bench held Maenka Gandhi’s case and overruled.
    2. To held that RTP is a FR.
    3. RTL and personal liberty may be inferred from various articles of part 3 and not just article 21, thus these FRs have been broad based made more powerful with more interpretative value.
    4. RTP is functional along the following aspects –
      1. It makes possible dignity in India became privacy is at the core of dignity.
      2. It makes possible liberal democracy in India, where citizens are entitled to certain rights and also enjoyment of these rights.
      3. It protects those eternal value which are the very basis of life and liberty.
      4. It protects our intimate zone which is body, life, family, marriage, sexual orientation and procreation.
      5. It protects the redesigning of our intimated zone both in personal and public space thus it protects our composite culture.
      6. RTP has both negative and positive aspects, state must not violate it, state must take positive steps to protect it (Shri Krishna Committee report on Data protection).
      7. RTP is not absolute and may be reasonably restricted by a legislation with legitimate purpose to promote it must pass test of proportionality (triple test).
    5. Aadhar Judgement – 4:1
      1. Aadhar is not mandatory but if any one wants to avail benefits of any scheme for which money comes from CFI them Aadhar is required
      2. Aadhar is not mandatory for school admission but if any student wants to avail benefit of scheme for which money comes from CFI then with parental permission Aadhar number may be guaranteed (right o withdraw from Aadhar on absence adulthood and also non-deprivation in its absence).
      3. Aadhar act is not establishing a surveillance state because –
        1. Minimal data collected can create ID but not a profile.
        2. Info stored in info silos can not be collated for meta data.
        3. Authentication is purpose blind.
        4. Tech architecture review bond and security…
        5. Aadhar act is not violating Right to Privacy, because it passes triple test.
        6. Aadhar act is justified as a money bill because there is substantial nexus between Aadhar act and CFI.
        7. Following provisions were diluted –
          1. Identity disclosure
          2. Data archiving 6 months only.
          3. Private properties not to use Aadhar.
    6. Navtej Johar – 
      1. It has decriminalised section 377 IPC w.r.t consensual acts of homosexuality, but not for non consensual acts and unnatural offences.
      2. The reason being violation of art 21 i.e dignified life, intimate zone, sexual orientation further violation of art 19 (1) (A) and of constitutional morality.
      3. The judgement has also laid down the principle of progressive realisation of rights.
  4. Right to Die – 
    1. Gyaan kaur judgement overruled Ratinam judgment held that right to die does not exist because it goes against basic human value which is towards protecting life and also is prone to misuse this section 306 and 309 constitutionally valid.
    2. Aruna Shanbaug case has suggested leniency towards mentally depressed people who attempt suicide, mental healthcare act has created exception in their favour.
    3. Aruna case held that active physician assisted euthanasia are illegal but passive euthanasia may be justified by HC order on recommendation of committee of doctors.
    4. Common cause judgement has recognised right to dignified death under art 21 and also right to living will.
    5. Living will only by person with legal capacity by free will, signed by 2 independent witness counter signed by CJM.
    6. Rajasthan HC in Nikhil Soni case held Santhara to be violative of art 21 SC has issued sty order those in favour of Santhara distinguish it from suicide and derive support from art 25 and 29.
  5. Article 21 A – 
    1. 86th CAA 2002 has introduced art 21 A, 51 A K and amended art 45.
    2. State shall provide free and compulsory education to all children of age group of 6-14 years in the manner provided by legislation by state.
    3. Primary education of equitable and satisfactory quality on full-time.
  6. Article 22- Punitive Detention, Primitive Detention.
    1. Protection from arrest and detention in certain cases these rights are available to all persons including citizens and non-citizens. Four safeguards are provided against punitive detention by art 22 (1) (2).
    2. The right to be informed of ground of arrest and detention as sons as may be SC in DK Basu guidelines has shown concern regarding the authenticity and authorisation of police personnel undertaking arrest and also whereabouts of arrested persons, further certain documents like arrest memo, police diary and medico-legal inspection reports are to be generated at the time of arrest, based on these magistrate will review the validity of arrest. The ground of arrest should be conveyed to friend or relative of arrested person, name of friend or relative should be mentioned in diary, along with the name of police personnel in whose custody the person is kept. During interrogation arrested person may meet his lawyer off and on.
    3. Post Maneka Gandhi SC has interpreted that the right to be represented by a council of one’s choice is a guaranteed right under art 21 read with 32. Court is duty bound to ask the arrested person whether he wants a lawyer. This fulfils the duty of court and rights of arrested person (Husaainara Khatoon Vs State of Bihar).
    4. To be produced before nearest magistrate within 24 hrs of arrest. Magistrate means judicial magistrate, 24 hrs doesn’t include travel time, this right ensures speedy trials.
    5. No further detention beyond 24 hrs unless authorised by magistrate depending upon requirement either judicial custody, police custody or bail may be granted.
    6. Two categories of person are not given these safeguards namely those under preventive detention and those of enemy alien [Art 22 (3)].
    7. Preventive detention means detaining a person on mere apprehension that he may commit a socio-economic crime like Hindu-Muslim riots, drugs, smuggling, human trafficking etc.
    8. The important laws in India are –
      1. UAPA
      2. COFEPOSA
      3. PITNDPSA
    9. These laws are justified because of union list item 9 and concurrent list item 3, also because these laws are to prevent the abuse of freedom by anti social and subversive element which may imperil national interest of infant republic.
    10. Three safeguards provided under art 22 (4) (5).
    11. No detention beyond 3 months without consulting an advisory board, the board shall consist of persons who are presently judge of HC or retired or fit to be judge of HC.
    12. The board will answer the question on detention beyond 3 months then detaining authority decides on actual period of detention which can’t be beyond the max prescribed under law.
    13. To be informed of ground as soon as may be but in public interest detaining authority may withhold some information. Entire documentary basis of detention should be provided.
    14. Earliest opportunity of representation before appropriate authority namely advisory board and later appropriate government detaining authority must inform the detained person about both these rights.
    15. Under art 22 (7) (a) detention may be beyond 3 months without consulting advisory board by a parliamentary law.
    16. Janta party by 44th amendment had amended art 22 but these were not notified.
    17. UAPA –
      1. Dreaded because anticipatory bill not allowed, bail not easy to get and no need for chargesheet for 180 days.
      2. Recent amendment allows designating individuals as terrorists allowing seizure of goods without consulting state and allowing inspector level police personnel to undertake investigation.
      3. Govt justifies by citing lone-wolf incidents, sensitive nature of UAPA cases handle by NIA and resource crunch in NIA.
      4. Criticism on ground that it takes away voice of opposition, violates reputation, dilutes the state’s policing power.
      5. In future judiciary will have to be alert to any misuse and also let there be a review committee while designating individual as terrorists.

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