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pursuance
of the
provisions
contained in
the relevant
Acts.
(viii) State Governments
should ensure that
the OCI Cardholder
registration booklets
of OCI Cardholders
are treated as their
identification for any
services rendered to
them. In case proof
of residence is
required, Overseas
Citizens of India
Cardholder may give
an affidavit stating
that a particular/
specific address
may be treated as
their place of
residence in India.
8. Does No Yes Can visit India without
he/she visa for life long.
require visa
for visiting
India ?
9. Is he/she No Yes if the No
required to period of
register stay is for
authorities
in India ?
10. What All Activities Activity as All activities except
activities per the research work for which
can be type of visa special permission is
undertaken obtained required from the Indian
in India ? Mission/Post/ FRRO
concerned.
11. How can He/she is As per the As per the Citizenship
one acquire an Indian Citizenship Act,1955, a person
Indian citizen Act, 1955, registered as an OCI
citizenship? he/she has cardholder for 5 years
to be and who is ordinarily
ordinarily resident in India for
resident in twelve months before
India for a making an application
period of 7 for registration is eligible
years for grant of Indian
before citizenship.
making an
application
for
registration.
Table 6.2 Articles Related to Citizenship at a Glance
Article No. Subject Matter
5. Citizenship at the commencement of the Constitution
6. Rights of citizenship of certain persons who have
migrated to India from Pakistan
7. Rights of citizenship of certain migrants to Pakistan
8. Rights of citizenship of certain persons of Indian origin
residing outside India
9. Persons voluntarily acquiring citizenship of a foreign
State not to be citizens
NOTES AND REFERENCES
1. On this date, the permit system for such migration was
introduced.
2. This provision refers to migration after 1 March, 1947 but before
26 January, 1950. The question of citizenship of persons who
migrated after 26 January, 1950, has to be decided under the
provisions of the Citizenship Act, 1955.
2a. The form of the oath is as follows:
I, A/B................... do solemnly affirm (or swear) that I will bear
true faith and allegiance to the Constitution of India as by law
established, and that I will faithfully observe the laws of India
and fulfill my duties as a citizen of India.
3. The 8th Schedule of the Constitution recognises presently 22
(originally 14) languages.
4. This will not apply if he is a student abroad, or is in the service
of a government in India or an international organisation of
which India is a member, or has registered annually at an Indian
consulate his intention to retain his Indian citizenship.
5. By virtue of Article 371-D inserted by the 32nd Constitutional
Amendment Act, 1973.
5a. Article 371D has been extended to the State of Telangana by
the Andhra Pradesh Reorganisation Act, 2014.
6. Further, the Jammu and Kashmir Reorganisation Act, 2019,
bifurcated the erstwhile State of Jammu and Kashmir into two
separate Union territories, namely, the Union territory of Jammu
& Kashmir and the Union territory of Ladakh.
7. Annual Report 2015–16, Ministry of Home Affairs, Government
of India, p. 262.
8. This Table is downloaded from the website of Ministry of Home
Affairs, Government of India.
7 Fundamental Rights
T
he Fundamental Rights are enshrined in Part III of the
Constitution from Articles 12 to 35. In this regard, the framers of
the Constitution derived inspiration from the Constitution of
USA (i.e., Bill of Rights).
Part III of the Constitution is rightly described as the Magna Carta
of India.1 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 guaranteed by the Constitution to all
persons without any discrimination. They uphold the equality of all
individuals, the dignity of the individual, the larger public interest and
unity of the nation.
The Fundamental Rights are meant for promoting the ideal of
political democracy. They prevent the establishment of an
authoritarian and despotic rule in the country, and protect the liberties
and freedoms of the people against the invasion by the State. They
operate as limitations on the tyranny of the executive and arbitrary
laws of the legislature. In short, they aim at establishing ‘a government
of laws and not of men’.
The Fundamental Rights are named so because they are
guaranteed and protected by the Constitution, which is the
fundamental law of the land. They are ‘fundamental’ also in the sense
that they are most essential for the all-round development (material,
intellectual, moral and spiritual) of the individuals.
Originally, the Constitution provided for seven Fundamental Rights
viz,
1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32)
However, the right to property was deleted from the list of
Fundamental Rights by the 44th Amendment Act, 1978. It is made a
legal right under Article 300-A in Part XII of the Constitution. So at
FEATURES OF FUNDAMENTAL RIGHTS
The Fundamental Rights guaranteed by the Constitution are
characterised by the following:
1. Some of them are available only to the citizens while others are
available to all persons whether citizens, foreigners or legal
persons like corporations or companies.
2. 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.
Thus, they strike a balance between the rights of the individual
and those of the society as a whole, between individual liberty
and social control.
3. All of them are available against the arbitrary action of the state.
However, some of them are also available against the action of
private individuals.
4. Some of them are negative in character, that is, place limitations
on the authority of the State, while others are positive in nature,
conferring certain privileges on the persons.
5. They are justiciable, allowing persons to move the courts for
their enforcement, if and when they are violated.
6. They are defended and guaranteed by the Supreme Court.
Hence, the aggrieved person can directly go to the Supreme
Court, not necessarily by way of appeal against the judgement of
the high courts.
7. 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. Moreover, this can be done without
affecting the ‘basic structure’ of the Constitution. (The
amenability of fundamental rights is explained in detail in
Chapter 11).
8. They can be suspended during the operation of a National
Emergency except the rights guaranteed by Articles 20 and 21.
Further, the six rights guaranteed by Article 19 can be
suspended only when emergency is declared on the grounds of
war or external aggression (i.e., external emergency) and not on
the ground of armed rebellion (i.e., internal emergency). (The
9. Their scope of operation is limited by Article 31A (saving of laws
providing for acquisition of estates, etc.), Article 31B (validation
of certain acts and regulations included in the 9th Schedule) and
Article 31C (saving of laws giving effect to certain directive
principles).
10. Their application to the members of armed forces, para-military
forces, police forces, intelligence agencies and analogous
services can be restricted or abrogated by the Parliament (Article
33).
11. Their application can be restricted while martial law is in force in
any area. Martial law means ‘military rule’ imposed under
abnormal circumstances to restore order (Article 34). It is
different from the imposition of national emergency.
12. 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).
DEFINITION OF STATE
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:
(a) Government and Parliament of India, that is, executive and
legislative organs of the Union government.
(b) Government and legislature of states, that is, executive and
legislative organs of state government.
(c) All local authorities, that is, municipalities, panchayats, district
boards, improvement trusts, etc.
(d) 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.
LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS
Article 13 declares that all laws that are inconsistent with or in
derogation of any of the fundamental rights shall be void. In other
words, it expressively provides for the doctrine of judicial review. This
power has been conferred on the Supreme Court (Article 32) and the
high courts (Article 226) that can declare a law unconstitutional and
invalid on the ground of contravention of any of the Fundamental
Rights.
The term ‘law’ in Article 13 has been given a wide connotation so
as to include the following:
(a) Permanent laws enacted by the Parliament or the state
legislatures;
(b) Temporary laws like ordinances issued by the president or the
state governors;
(c) Statutory instruments in the nature of delegated legislation
(executive legislation) like order, bye-law, rule, regulation or
notification; and
(d) Non-legislative sources of law, that is, custom or usage having
the force of law.
Thus, not only a legislation but any of the above can be challenged
in the courts as violating a Fundamental Right and hence, can be
declared as void.
Further, Article 13 declares that a constitutional amendment is not a
law and hence cannot be challenged. However, the Supreme Court
held in the Kesavananda Bharati case2 (1973) that a Constitutional
amendment can be challenged on the ground that it violates a
fundamental right that forms a part of the ‘basic structure’ of the
Constitution and hence, can be declared as void.
Table 7.1 Fundamental Rights at a Glance
Category Consists of
1. Right to equality (Articles (a) Equality before law and equal
14–18) protection of laws (Article 14).
(b) Prohibition of discrimination on
grounds of religion, race, caste,
sex or place of birth (Article
15).
(c) Equality of opportunity in
matters of public employment
(Article 16).
(d) Abolition of untouchability and
prohibition of its practice
(Article 17).
(e) Abolition of titles except military
and academic (Article 18).
2. Right to freedom (Articles (a) Protection of six rights
19–22) regarding freedom of: (i)
speech and expression, (ii)
assembly, (iii) association, (iv)
movement, (v) residence, and
(vi) profession (Article 19).
(b) Protection in respect of
conviction for offences (Article
20).
(c) Protection of life and personal
liberty (Article 21).
(d) Right to elementary education
(Article 21A).
(e) Protection against arrest and
detention in certain cases
(Article 22).
3. Right against exploitation (a) Prohibition of traffic in human
(Articles 23–24) beings and forced labour
(Article 23).
(b) Prohibition of employment of
children in factories, etc.
(Article 24).
4. Right to freedom of (a) Freedom of conscience and
religion (Article 25–28) free profession, practice and
propagation of religion (Article
25).
(b) Freedom to manage religious
affairs (Article 26).
(c) Freedom from payment of
taxes for promotion of any
religion (Article 27).
religious instruction or worship
in certain educational
institutions (Article 28).
5. Cultural and educational (a) Protection of language, script
rights (Articles 29–30) and culture of minorities (Article
29).
(b) Right of minorities to establish
and administer educational
institutions (Article 30).
6. Right to constitutional Right to move the Supreme Court
remedies (Article 32) for the enforcement of
fundamental rights including the
writs of (i) habeas corpus, (ii)
mandamus, (iii) prohibition, (iv)
certiorari, and (v) quo war-rento
(Article 32).
Table 7.2 Fundamental Rights (FR) of Foreigners
FR available only to citizens FR available to both citizens