Indian Polity Notes - Directive Principles & Fundamental Duties

Indian Polity - Fundamental Rights

Article 27 & 28: Freedom Regarding Religion

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

• This provision only prohibits the collection of taxes.
• However, the government may collect fees from the public for providing special services on a religious basis.

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

• Religious instruction shall not be provided in educational institutions wholly maintained out of State funds.
• This also applies to educational institutions recognized by the State or receiving aid from State funds.

5. Cultural and Educational Rights (Articles 29 to 30)

Article 29: Protection of interests of minorities.

• 29(1): Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
• 29(2): No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30: Right of minorities to establish and administer educational institutions.

• According to this provision, all minorities shall have the right to establish and administer educational institutions of their choice.

Minority groups are not defined in the Constitution. But legally, minorities are of two types:

1. Religious Minorities
2. Linguistic Minorities

Religious minorities are identified by considering the entire country as a unit, while linguistic minorities are identified by considering the state as a unit.

Except for Hindus, all other religious communities are minorities. Linguistic minorities vary from state to state.

Minorities can establish educational institutions. In matters of administration, i.e., admissions, appointments, etc., the government should not interfere. The Supreme Court gave verdicts in All Saints High School vs. Government of Andhra Pradesh (1980) and St. Xavier's College vs. Gujarat Government (1974) cases.

Article 31 & Amendments

Article 31, related to the Right to Property, has been repealed.

Article 31 (A)

• Laws made by governments in the name of land reforms cannot be challenged in any court on the grounds of violating rights.

Article 31 (B)

• This article added the 9th Schedule.
• Implementation of matters in the 9th Schedule cannot be challenged in any court on the grounds of violating rights.

Note: Articles 31(A) and 31(B) were added to the Constitution through the First Constitutional Amendment, 1951.

Article 31 (C)

• Laws made by governments inspired by the Directive Principles in Part IV, specifically Article 39(b) and 39(c), cannot be challenged in any court on the grounds of violating rights.

Note: Article 31(C) was added to the Constitution through the 25th Constitutional Amendment in 1971.

These provisions were created to limit the Right to Property among Fundamental Rights.

Note: The Right to Property (Article 31) was removed from the list of Fundamental Rights through the 44th Constitutional Amendment in 1978 and changed to a legal right under Article 300(A) in Part XII.

* Currently, in which Article and Part of the Indian Constitution is the Right to Property enshrined? (APSI-2018)

1) 300A, PART - XII 2) 200A, PART - XII 3) 300 A, PART - XVIII 4) 200A, PART - XVIII

* Which writ is issued to release a person who is illegally detained? (AP Constables-2018)

1) Habeas Corpus 2) Mandamus 3) Quo Warranto 4) Certiorari

6. Right to Constitutional Remedies - Article 32

Article 32 is described as the soul and heart of the Indian Constitution by Dr. B.R. Ambedkar.

• When Fundamental Rights are violated, one can approach the court through the Right to Constitutional Remedies.
• The Constitution has entrusted the responsibility of protecting Fundamental Rights to the Supreme Court and High Courts.
• When Fundamental Rights are violated, the Supreme Court issues writs under Article 32.
• Similarly, the High Court issues writs under Article 226.

Writs

The term 'Writ' means an order or direction.

• The system of courts issuing writs is adopted from the British Constitution.
• The Supreme Court is called the protector of Fundamental Rights.
• 'Writ' is a Latin word.
• Writs are of 5 types:

1. Habeas Corpus:

This is the oldest writ.

• Habeas means 'Have', Corpus means 'Body'.
• Meaning 'To have the body'.
• This writ is issued when personal liberty is violated.
• It is a writ to inform that the arrested person should be produced in the nearest court within 24 hours.
• It is described as a liberal writ and a protector of personal liberty.
• This writ can be issued to government institutions and private individuals.
• This writ cannot be issued to the President, Governor, and foreign ambassadors.

2. Mandamus:

• Linguistically, Mandamus means command.
• 'We command' means "We are commanding".
• This writ can be described as the highest command issued by the Supreme Court (or) High Court.
• An order issued by courts to a government official to perform their duty properly.
• This writ is issued only against government employees and institutions.
• This writ cannot be issued to the President, Governor, foreign ambassadors, and private individuals.

3. Prohibition:

• Linguistically, Prohibition means to forbid.
• If any lower court or tribunal is trying cases by exceeding its jurisdiction, the court orders to stop the trial until further orders.
• The main purpose of this writ is to prevent lower courts from exceeding their jurisdiction.
• Prohibition applies only to judicial bodies.
• It does not apply to administrative bodies and statutory bodies.

4. Quo Warranto:

• Linguistically, it is called 'By What Warrant'.
• Meaning "By what authority?".
• If someone illegally enters public office or misuses public office, the courts question the authority of the person holding the office to continue in that position.
• If there is no legality, they order to immediately vacate the office.
• The main purpose of this writ is to prevent misuse of public office.

5. Certiorari (Supervisory Jurisdiction of Higher Court):

• Certiorari means 'To be certified'.
• When a lower court exceeds its jurisdiction and delivers a verdict, it is an order to quash the verdict and transfer the case to a higher court.
• The purpose of this writ is also to prevent lower courts from exceeding their jurisdiction.
• Injunction: An injunction is an order issued by a court to do or refrain from doing something. It is issued in civil disputes to maintain the status quo. It is not mentioned in the Constitution.

* Who has the power to impose restrictions on Fundamental Rights? (2) (AP Constable Prelims-2016)

1) Supreme Court 2) Parliament 3) President 4) No provision to impose restrictions

Article 33, 34 & 35

Article 33: Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.

• Parliament has the power to deny Fundamental Rights to the armed forces.
• For those working in central forces, forces deployed for maintaining law and order, those working in intelligence agencies, and those working in communication related to defense, Parliament has the power to restrict Fundamental Rights.

Article 34: Restriction on rights conferred by this Part while martial law is in force in any area.

• In areas where Martial Law is in force, the extent to which Fundamental Rights apply is decided by the Indian Parliament.
• The concept of Martial Law in India is adopted from English Common Law.
• However, "Martial Law" is nowhere defined in the Constitution.
• Generally, it is called 'Military Rule'.

Article 35: Legislation to give effect to the provisions of this Part.

• Parliament has the power to legislate regarding Fundamental Rights.

Important Cases related to Fundamental Rights - Supreme Court Judgments

1. A.K. Gopalan vs. State of Madras - 1950:

• In 1950, Section 4 of the Preventive Detention Act was held to be against judicial review and therefore invalid by the Supreme Court.

2. Shankari Prasad vs. Union of India - 1951:

• The Supreme Court examined the matter related to the First Constitutional Amendment in this dispute.
• It ruled that the amendment was constitutional.
• In this case, the Supreme Court used the power of judicial review for the first time.

3. Bela Banerjee vs. State of West Bengal - 1954:

• This dispute relates to the Right to Property.
• The court ruled that when the government acquires people's property, it must pay compensation equal to the market value.

4. Sajjan Singh vs. State of Rajasthan - 1964:

• This case relates to the power of constitutional amendment.
• The 17th Constitutional Amendment related to the Right to Property was declared constitutional.

5. Golaknath vs. State of Punjab - 1967:

• The Supreme Court questioned the land reform law enacted by the Punjab government in this case.
• The Supreme Court ruled that Parliament does not have the power to amend Fundamental Rights.
• In this case, the Supreme Court declared that a 'Special Constitutional Assembly' should be constituted to amend Fundamental Rights.

6. Kesavananda Bharati vs. State of Kerala - 1973:

• The 24th and 25th Constitutional Amendments intended to amend Fundamental Rights were questioned in the Supreme Court.
• Contrary to the judgment in the Golaknath case, the Supreme Court ruled that Parliament has the power to amend Fundamental Rights, but cannot change the basic structure.
• The term Basic Structure was first used by the Supreme Court in this case.

7. Minerva Mills vs. Union of India – 1980:

• The 42nd Constitutional Amendment was questioned in the Supreme Court in this case.
• The Supreme Court declared that "Fundamental Rights are part of the basic structure of the Constitution, and reducing or abolishing them is unconstitutional."

8. Indira Sawhney vs. Union of India - 1992:

• The Supreme Court upheld the 27% reservation for backward classes.

9. Unnikrishnan vs. State of Andhra Pradesh Case - 1992 and Mohini Jain vs. State of Karnataka - 1992:

• In both these cases, the Supreme Court ruled that if the right to education is not a Fundamental Right, then the right to life and personal dignity is meaningless, and primary education should be recognized as a Fundamental Right.

10. Maneka Gandhi vs. Union of India (1978):

• In this case, the Supreme Court explained 'Due Process of Law' (related to liberty).

11. St. Stephen's College vs. University of Delhi:

• The Supreme Court ruled in 1991 that institutions can admit students with lower marks than the standard marks.

12. National Legal Services Authority vs. Union of India (2014):

• In the case between (2014), the Supreme Court ruled that not being able to express their gender and not recognizing their rights means denying their equality.

6. Directive Principles of State Policy

(DIRECTIVE PRINCIPLES OF STATE POLICY)

• Directive Principles are in Part IV of the Indian Constitution, from Article 36 to 51.
• These are also called Directive Rules or Welfare Principles.
• The goal of Directive Principles is to establish a Welfare State.
• These are also called non-justiciable rights.
• Directive Principles are adopted from the Irish Constitution.

* Directive Principles are taken from which Constitution? (4) (AP Constable-2019)

1) America 2) Britain 3) France 4) Ireland

Spain is the first country in the world to print Directive Principles.

• These are of favorable nature. They increase the duties of the government.
• Dr. B.R. Ambedkar compared Directive Principles to the 'Instrument of Instructions' in the Government of India Act, 1935.
• M.C. Setalvad described Directive Principles as a guiding light for the legislative system.
• Prof. K.T. Shah described them as a check payable on demand, like a worthless cheque.
• "Directive Principles are like New Year resolutions, which are broken on January 2nd," commented Nasiruddin Shah.
• In governance and law-making, central and state governments take Directive Principles into consideration.
• Directive Principles are not enforceable by courts. If the government fails to implement them, there is no right to go to court.
• Their aim is to establish a welfare state, and achieve social and economic justice.
• Directive Principles can be compared to the Preamble of the Constitution.
• The implementation of Directive Principles depends on the availability of financial resources.
• T.T. Krishnamachari described them as a dustbin of diverse sentiments.
• "Social revolutionary ideas are clearly seen in Directive Principles," commented Granville Austin.
• "If Directive Principles are fully implemented, India will become heaven on earth," said M.C. Chagla.
• "Directive Principles are moral precepts. Officials and government should respect them," commented B.N. Rau.
• "No cabinet responsible to the people can afford to ignore Directive Principles," said Alladi Krishnaswamy Iyer.