Test: Polity- 8 - UPSC MCQ

The term ‘State’ has been used in different provisions concerning the fundamental rights. Hence, Article 12 has defined the term for the purposes of Part III. According to it, the State includes the following:

• Government and Parliament of India, that is, executive and legislative organs of the Union government.
• Government and legislature of states, that is, executive and legislative organs of state government.
• All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.
• All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

Thus, State has been defined in a wider sense so as to include all its agencies. It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.
According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.

• A nation-state is a mix of several ethnicities.
• A nation refers only to a socio-cultural entity, a union of people sharing who can identify culturally and linguistically. This concept does not necessarily consider formal political unions.
• A state refers to a legal/political entity that is comprised of the following: a) a permanent population; b) a defined territory; c) a government; and d) the capacity to enter into relations with other states.
• Combination of both is known as a nation-state.

Article 3 authorises the Parliament to:

• form a new state by separation of territory from any state or by uniting two or more states or
  parts of states or by uniting any territory to a part of any state,
• increase the area of any state,
• diminish the area of any state,
• alter the boundaries of any state, and
• alter the name of any state.

However, Article 3 lays down two conditions in this regard: one, a bill contemplating the above changes can be introduced in the Parliament only with the prior recommendation of the President;
Two, before recommending the bill, the President has to refer the same to the state legislature concerned for expressing its views within a specified period.
The President is not bound by the views of the state legislature and may either accept or reject them, even if the views are received in time. Further, it is not necessary to make a fresh reference to the state legislature every time an amendment to the bill is moved and accepted in Parliament.

• Under Article 9 of the Indian Constitution, a person who voluntarily acquires citizenship of any other country is no longer an Indian citizen.
• The OCI Cardholder (including a PIO Cardholder) is a foreign national holding passport of a foreign country and is not a citizen of India.

• The Constitution deals with the citizenship from Articles 5 to 11 under Part II. However, it contains neither any permanent nor any elaborate provisions in this regard. 
• It only identifies the persons who became citizens of India at its commencement (i.e., on January 26, 1950). It does not deal with the problem of acquisition or loss of citizenship subsequent to its commencement. It empowers the Parliament to enact a law to provide for such matters and any other matter relating to citizenship.
• A person who migrated to Pakistan from India after March 1, 1947, but later returned to India for resettlement could become an Indian citizen. For this, he had to be resident in India for six months preceding the date of his application for registration2 (Article 7).

The Fundamental Rights guaranteed by the Constitution are characterised by the following:

• They are not absolute but qualified. The state can impose reasonable restrictions on them. However, whether such restrictions are reasonable or not is to be decided by the courts.
• They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated.
• They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act.

These rights are not available to the foreigners (friendly aliens).

• Right against discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).
• Right to equality of opportunity in the matter of public employment (Article 16).
• Right to freedom of speech and expression, assembly, association, movement, residence and profession (Article 19).
• Cultural and educational rights (Articles 29 and 30).
• Right to vote in elections to the Lok Sabha and state legislative assembly.
• Right to contest for the membership of the Parliament and the state legislature.
• Eligibility to hold certain public offices, that is, President of India, Vice-President of India, judges of the Supreme Court and the high courts, governor of states, attorney general of India and advocate general of states.

• A13. Laws inconsistent with or in derogation of the fundamental rights, where the court can cut down a law that infringes on the right to education.
• A15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth that is important for inclusive education
• A28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions
• A30. Right of minorities to establish and administer educational institutions

Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once. This is called Doctrine of Double Jeopardy.

• Rights are reasonable claims of persons recognised by society and sanctioned by law. However, in most cases the claimed rights are directed towards the state. That is, through these rights people make demands upon the state.
• When I assert my right to education, I call upon the state to make provisions for my basic education.
• Different groups may open schools and fund scholarships so that children of all classes can get the benefit of education. But the primarily responsibility rests upon the state. It is the state that must initiate necessary steps to ensure that my right to education is fulfilled.
• If a right can be enjoyed only by an individual or a group of people, it is not a right, but a privilege. Your freedom to drive a car on the street conjoins the freedom of other to drive on the same street.
• Also, you cannot have a right that harms or hurts others. You cannot have a right to drive such a way that it hurts others on the street.
• My right to liberty as a person, for instance, suggests that the state cannot simply arrest me at its own will. If it wishes to put me behind bars it must defend that action; it must give reasons for curtailing my liberty before a judicial court. This is why the police are required to produce an arrest warrant before taking me away. My rights thus place certain constraints upon state actions.

Article 14 has two parts: equality before law and equal protection of laws.

• The first concept basically means law is for everyone whoever it might be.
• The second concept means law will apply equally to equally situated people. For e.g. if an adult receives a punishment of 3 years imprisonment, another adult for the same crime and same circumstances should also get 3 years of imprisonment.

The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.
The term ‘untouchability’ has not been defined in the Constitution.

The freedom of speech and expression, in this context, includes:

• Right to propagate one’s views as well as views of others.
• Freedom of the press.
• Freedom of commercial advertisements.
• Right against tapping of telephonic conversation.
• Right to telecast, that is, government has no monopoly on electronic media.
• Right against bandh called by a political party or organisation.
• Right to know about government activities.
• Freedom of silence.
• Right against imposition of pre-censorship on a newspaper.
• Right to demonstration or picketing but not right to strike.

• Right to freedom of movement entitles every citizen to move freely throughout the territory of the country. The grounds of imposing reasonable restrictions on this freedom are two, namely, the interests of general public and the protection of interests of any scheduled tribe. The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.
• All citizens are given the right to practise any profession or to carry on any occupation, trade or business. This right is very wide as it covers all the means of earning one’s livelihood.

The Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.
(a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:
(i) Right to be informed of the grounds of arrest.
(ii) Right to consult and be defended by a legal practitioner.
(iii) Right to be produced before a magistrate within 24 hours, excluding the journey time.
(iv) Right to be released after 24 hours unless the magistrate authorises further detention.
These safeguards are not available to an alien or a person arrested or detained under a preventive detention law.

• Fundamental Rights are not absolute and subject to reasonable restrictions. Further, they are not sacrosanct and can be curtailed or repealed by the Parliament through a constitutional amendment act.
• They promote the idea of political democracy. DPSP promote the idea of social and economic democracy.
• Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained (Article 35).
   

Both the statements are correct.

The Fundamental Rights operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. They are justiciable in nature, that is, they are enforceable by the courts for their violation. The aggrieved person can directly go to the Supreme Court which can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto for the restoration of his rights.

• Statement 1 – The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution.
• Statement 2 – Only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights and so on.
• Statement 3 – In case of the enforcement of Fundamental Rights, the jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226.
• Statement 4 – Article 32 cannot be invoked simply to determine the constitutionality of an executive order or a legislation unless it directly infringes any of the fundamental rights.

Part III of the Constitution is rightly described as the Magna Carta of India. It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights. In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA.
The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land.

Dr B R Ambedkar had said ‘the Directive Principles are like the instrument of instructions, which were issued to the Governor-General and to the Governors of the colonies of India by the British Government under the Government of India Act of 1935.’
What is called Directive Principles is merely another name for the instrument of instructions.
The only difference is that they are instructions to the legislature and the executive.

Acts like Maternity Benefit Act or its amendment have been enacted in the spirit of the DPSP (Article 42).
Statement 2: These are socialist principles which draw their moorings from the history of economic thought in India. India upholds an economic system based on the principles of equity, fairness and justice, and therefore, such rights (provisions) are crucial to ensure labour welfare.

The 42nd Amendment Act of 1976 added four new Directive Principles to the original list. They require the State:
(i) To secure opportunities for healthy development of children (Article 39).
(ii) To promote equal justice and to provide free legal aid to the poor (Article 39 A).
(iii) To take steps to secure the participation of workers in the management of industries (Article 43 A).
(iv) To protect and improve the environment and to safeguard forests and wild life (Article 48 A)

• If they are violated one cannot approach the court and seek their enforcement. Therefore, the government (Central, state and local) cannot be compelled to implement them.
• The Directive Principles, though non-justiciable in nature, help the courts in examining and determining the constitutional validity of a law.
• The Supreme Court has ruled many a times that in determining the constitutionality of any law, if a court finds that the law in question seeks to give effect to a Directive Principle, it may consider such law to be ‘reasonable’ in relation to Article 14 (equality before law) or Article 19 (six freedoms) and thus save such law from unconstitutionality.

The directive principles are meant for promoting the ideal of social and economic democracy. They seek to establish a ‘welfare state’ in India.
However, unlike the Fundamental Rights, the directives are non-justiciable in nature, that is, they are not enforceable by the courts for their violation. Yet, the Constitution itself declares that ‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’.