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Fundamental rights and Fundamental Duties of India notes – CSEET

Fundamental rights and Fundamental Duties of India notes – CSEET

Fundamental rights and Duties of India:

ICSI CSEET: The Council of the ICSI has released a notice regarding CSEET on the day of the inauguration of ICSI Golden Jubilee Celebrations on 4th Oct 2017.

The Gazette Notification on the Company Secretaries (Amendment) Regulations, 2020 has been published on 3rd February 2020 in the Official Gazette of India and the same shall be applicable from the said date of publication.

Now ICSI Published a notice regarding CSEET Test which going to start from 2020 May.

We are now going to discuss the details of CSEET Paper-2 Legal Aptitude and Logical Reasoning – Fundamental rights and Fundamental Duties of India notes

Fundamental rights and Duties of India

Fundamental rights and Duties of India

Fundamental rights :The basic human rights and duties of all Indian citizens are mandatory to be known by every citizen of India,which explained in detail within this article

Fundamental rights of India

The Constitution seeks to secure to the people “liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and fraternity assuring the dignity of the individual”. With this object, the fundamental rights are envisaged in Part III of the Constitution.

Fundamental rights

Fundamental rights

Part III of the Indian Constitution guarantees six categories of fundamental rights. These are:

— Right to Equality—Articles 14 to 18;

—    Right to Freedom — Articles 19 to 22;

—    Right against Exploitation — Articles 23 and 24;

—    Right to Freedom of Religion — Articles 25 to 28;

—    Cultural and Educational Rights — Articles 29 and 30;

—    Right to Constitutional Remedies — Articles 32.

Previously the right to property under Article 31 was also guaranteed as a Fundamental Right which has been removed by the 44th Constitutional Amendment Act, 1978. Now right to property is not a fundamental right, it is now only a legal right.

Apart from this, Articles 12 and 13 deal with definition of ‘State’ and ‘Law’ respectively. Articles 33 to 35 deal with the general provisions relating to Fundamental Rights.

No fundamental right in India is absolute and reasonable restrictions can be imposed in the interest of the state by valid legislation and in such case the Court normally would respect the legislative policy behind the same.( People’s Union for Civil Liberties v. Union of India, (2004) 2 SCC 476).

From the point of view of persons to whom the rights are available, the fundamental rights may be classified as follows:

(a)   Articles 15, 16, 19 and 30 are guaranteed only to citizens.

(b)   Articles 14, 20, 21,22, 23, 25, 27 and 28 are available to any person on the soil of India—citizen or foreigner.

(c)   The rights guaranteed by Articles 15, 17, 18, 20, 24 are absolute limitations upon the legislative power.

Fundamental rights-State

With a few exceptions, all the fundamental rights are available against the State. Under Article 12, unless the context otherwise requires, “the State” includes—

(a)   the Government and Parliament of India;

(b)   the Government and the Legislature of each of the States; and

(c)   all local or other authorities:

(i)    within the territory of India; or

(ii)   under the control of the Government of India.

The expression ‘local authorities’ refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trusts, Port Trusts and Mining Settlement Boards. In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 481, the Supreme Court has enunciated the following test for determining whether an entity is an instrumentality or agency of the State:

(1)   If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government.

(2)   Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character.

(3)   Whether the corporation enjoys a monopoly status which is conferred or protected by the State.

(4)   Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or an instrumentality.

(5)   If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in classifying a corporation as an instrumentality or agency of government.

(6)   If a department of government is transferred to a corporation, it would be a strong factor supporting an inference of the corporation being an instrumentality or agency of government.

Justifiability of Fundamental Rights

Article 13 gives teeth to the fundamental rights. It lays down the rules of interpretation in regard to laws inconsistent with or in derogation of the Fundamental Rights.

Existing Laws : Article 13(1) relates to the laws already existing in force, i.e. laws which were in force before the commencement of the Constitution. A declaration by the Court of their invalidity, however, will be necessary before they can be disregarded and declares that pre-constitution laws are void to the extent to which they are inconsistent with the fundamental rights.

Future Laws : Article 13(2) relates to future laws, i.e., laws made after the commencement of the Constitution. After the Constitution comes into force the State shall not make any law which takes away or abridges the rights conferred by Part III and if such a law is made, it shall be void to the extent to which it curtails any such right.

The word ‘law’ according to the definition given in Article 13 itself includes—

“… any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India, the force of law.”

By the Constitution (Twenty-Fourth Amendment) Act, 1971 a new clause has been added to Article

13 which provides that—

“Nothing in this Article shall apply to any amendment of this Constitution made under Article 368”

Article 13 came up for judicial review in a number of cases and the Courts have evolved doctrines like doctrine of eclipse, severability, prospective overruling, acquiescence etc. for interpreting the provisions of Article 13.

Right of equality

Articles 14 to 18 of the Constitution deal with equality and its various facets. The general principle finds expression in Article 14. Particular applications of this right are dealt with in Articles 15 and 16. Still more specialised applications of equality are found in Articles 17 and 18.

Fundamental rights : Right to equality

Fundamental rights : Right to equality

Equality before the law and equal protection of the laws

Article 14 of the Constitution says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

As is evident, Article 14 guarantees to every person the right to equality before the law or the equal protection of the laws. The expression ‘equality before the law’ which is barrowed from English Common Law is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. Every person, whatever be his rank or position is subject to the jurisdiction of the ordinary courts.

The second expression “the equal protection of the laws” which is based on the last clause of the first section of the Fourteenth Amendment to the American Constitution directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination.

Article 14 applies to all persons and is not limited to citizens. A corporation, which is a juristic person, is also entitled to the benefit of this Article (Chiranjit Lal Chowdhurary v. Union of India, AIR 1951 SC 41). The right to equality is also recognised as one of the basic features of the Constitution (Indra Sawhney v. Union of India, AIR 2000 SC 498).

Prohibition of discrimination on grounds of religion etc.

Article 15(1) prohibits the State from discriminating against any citizen on grounds only of:

(a)   Religion

(b)   Race

(c)   Caste

(d)   Sex

(e)   Place of birth or

(f)    Any of them

Article 15 (2) lays down that no citizen shall be subjected to any disability, restriction or condition with regard to—

(a)   Access to shops, public restaurants, hotels and places of public entertainment; or

(b)   The use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partially out of State funds or dedicated to the use of the general public.

Article 15(3) and 15(4) and 15(5) and 15(6) create certain exceptions to the right guaranteed by

Article 15(1) and 15(2). Under Article 15(3) the State can make special provision for women and children. It is under this provision that courts have upheld the validity of legislation or executive orders discriminating in favour of women (Union of India v. Prabhakaran, (1997) 2 SCC 633).

Article 15(4) permits the State to make special provision for the advancement of—

(a)   Socially and educationally backward classes of citizens;

(b)   Scheduled casts; and

(c)   Scheduled tribes.

Article 15(5) inserted in the Constitution of India by the Constitution (Ninety-third Amendment) Act, 2005, permits the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

Further, Article 15(6) inserted in the Constitution of India by the Constitution (One Hundred and Third Amendment) Act, 2019, provides that nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

(a)   any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b)   any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority

educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Explanation.—For the purposes of Article 15 and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

Equality of opportunity in matters of public employment

Article 16(1) guarantees to all citizens’ equality of opportunity in matters relating to employment or appointment of office under the State.

Article 16(2) prohibits discrimination against a citizen on the grounds of religion, race, caste, sex descent, place of birth or residence.

However, there are certain exceptions provided in Article 16(3), 16(4) and 16(5). These are as under:

(1)   Parliament can make a law that in regard to a class or classes of employment or appointment to an office under the Government of a State or a Union Territory, under any local or other authority within the State or Union Territory, residence within that State or Union Territory prior to such employment or appointment shall be an essential qualification. [Article 16(3)]

(2)   A provision can be made for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. [Article 16(4)]

(3)   Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. [Article 16(4A)]

(4)   Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. [Article 16(4B)]

(5)   A law shall not be invalid if it provides that the incumbent of an office in connection with the affair of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. [Article 16(5)]

(6)   Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category. [Article 16(6)]

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 offence punishable in accordance with law.

Untouchability does not include an instigation to social boycott (Davarajiah v. Padamanna, AIR 1961 Mad. 35, 39). Punishment for violation of Article 17 is to be provided by Parliament under Article 35(a)

Abolition of titles

Article 18 is more a prohibition rather than a fundamental right. British Government used to confer

titles upon persons who showed special allegiance to them. Many persons were made Sir, Raj Bahadur, Rai Saheb, Knight, etc. These titles had the effect of creating a class of certain persons which was regarded superior to others and thus had the effect of perpetuating inequality. To do away with that practice, Article 18 provides as under:

(i)    No title, not being a military or academic distinction, shall be conferred by the State.

(ii)   No citizen of India shall accept any title from any foreign State.

(iii)   No person, who is not a citizen of India shall, while he holds any office or trust under the State, accept without the consent of the President, any title from any foreign State.

(iv)  No person, holding any office of profit or trust under State shall without the consent of the President, accept any present, emolument or office of any kind from or under a foreign State.

Rights Relating to Freedom

The Six Freedoms of Citizens

The Six Freedoms of Citizens

Articles 19-22 guarantee certain fundamental freedoms.

The Six Freedoms of Citizens

Article 19(1), of the Constitution, guarantees to the citizens of India six freedoms, namely:

(a)   Freedom of speech and expression;

(b)   Assemble peaceably and without arms;

(c)   Form associations or unions

(d)   Move freely, throughout the territory of India;

(e)   Reside and settle in any part of the territory of India;

(f)    Practice any profession, or to carry on any occupation, trade or business.

These freedoms are those great and basic rights which are recognized as the natural rights inherent in the status of a citizen. At the same time, none of these freedoms is absolute but subject to reasonable restrictions specified under clauses (2) to (6) of the Article 19. The Constitution under Articles 19(2) to 19(6) permits the imposition of restrictions on these freedoms subject to the following conditions:

(a)   The restriction can be imposed by law and not by a purely executive order issued under a statute;

(b)   The restriction must be reasonable;

(c)   The restriction must be imposed for achieving one or more of the objects specified in the respective clauses of Article 19.

Article 19(2) specifies the limits upto which the freedom of speech and expression may be restricted. It enables the Legislature to impose by law reasonable restrictions on the freedom of speech and expression under the following heads:

Permissible Restrictions

Permissible Restrictions

Permissible Restrictions

(1)   Sovereignty and integrity of India

(2)   Security of the State

(3)   Friendly relations with foreign States

(4)   Public Order

(5)   Decency or morality

(6)   Contempt of court

(7)   Defamation

(8)   Incitement to an offence

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by the executive action (Express News Papers Pvt. Ltd. v. Union of India, (1986) 1 SCC 133).

Protection of Life and Personal Liberty

Article 21 confers on every person the fundamental right to life and personal liberty. It says that,

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The right to life includes those things which make life meaningful. The right to life enshrined in Article 21 guarantees right to live with human dignity. Right to live in freedom from noise pollution is a fundamental right protected by Article 21 and noise pollution beyond permissible limits is an inroad into that right. (Noise Pollution (v), in re, (2005) 5 SCC 733).

In Satwant Singh Sawhney v. A.P.O., New Delhi, AIR 1967 S.C. 1836, it was held that right to travel is included within the expression ‘personal liberty’ and, therefore, no person can be deprived of his right to travel, except according to the procedure established by law. Since a passport is essential for the enjoyment of that right, the denial of a passport amounts to deprivation of personal liberty. In the absence of any procedure pescribed by the law of land sustaining the refusal of a passport to a person, it’s refusal amounts to an unauthorised deprivation of personal liberty guaranteed by Article 21.

Procedure established by law : The expression ‘procedure established by law’ means procedure laid down by statute or procedure prescribed by the law of the State. Accordingly, first, there must be a law justifying interference with the person’s life or personal liberty, and secondly, the law should be a valid law, and thirdly, the procedure laid down by the law should have been strictly followed.The procedure must be fair, just and reasonable. It must not be arbitrary, fanciful or oppressive.

Right to Education

According to Article 21A of the Constitution of India, the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

Right against Exploitation

Right against Exploitation

According to, Article 23 of Constitution of India traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of Article 23 shall be an offence punishable in accordance with law. Further, as per Article 24 of Constitution of India, no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

 

 

Right to Freedom of Religion

Articles 25, 26, 27 and 28 of Constitution of India deals with right to Freedom of Religion.

Right to Freedom of Religion

Right to Freedom of Religion

Right to Constitutional Remedies

Article 32 guarantees the enforcement of Fundamental Rights. It is remedial and not substantive in nature. The rest of the Articles 33 to 35 relate to supplementary matters and do not create or guarantee any right. Therefore, we shall discuss Article 32 first and then rest of the Articles i.e. 33-35 briefly.

Remedies for Enforcement of Fundamental Rights

It is a cardinal principle of jurisprudence that where there is a right there is a remedy (ubi jus ibi remedium) and if rights are given without there being a remedy for their enforcement, they are of no use. While remedies are available in the Constitution and under the ordinary laws, Article 32 makes it a fundamental right that a person whose fundamental right is violated has the right to move the Supreme Court by appropriate proceedings for the enforcement of his fundamental right. It is really a far reaching provision in the sense that a person need not first exhaust the other remedies and then go to the Supreme Court. On the other hand, he can directly raise the matter before highest Court of the land and the Supreme Court is empowered to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of the right, the violation of which has been alleged. This power of the Supreme Court to issue directions, etc., may also be assigned to other Courts by Parliament without affecting the powers of the Supreme Court.

The right to move the Supreme Court is itself a guarantee right and the significance of this has been assessed by Gajendragadkar, J. in the following words:

“The fundamental right to move this Court can therefore be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of Patanjali Sastri, J., regard itself ‘as the protector and guarantor of fundamental rights’, and should declare that “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights. In discharging the duties assigned to it, this Court has to play the role of ‘sentinel on the qui vive’ (State of Madras v. V.G. Row, AIR 1952 SC 196) and it must always regard it as its solemn duty to protect the said fundamental rights ‘zealously and vigilantly’ (Daryao v. State of U.P., AIR 1961 SC 1457).

 

Fundamental Duties of India

Article 51A imposes the fundamental duties on every citizen of India. These Fundamental Duties are:

(a)   to abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b)   To cherish and follow the noble ideals which inspired our national struggle for freedom;

(c)   to uphold and protect the sovereignty, unity and integrity of India;

(d)   to defend the country and render national service when called upon to do so;

(e)   to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f)    to value and preserve the rich heritage of our composite culture;

(g)   to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h)   to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i)    to safeguard public property and to abjure violene;

(j)    to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

Since the duties are imposed upon the citizens and not upon the States, legislation is necessary for their implementation. Fundamental duties can’t be enforced by writs (Surya Narain v. Union of India, AIR 1982 Raj 1).

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