FUNDAMENTAL RIGHTS IN INDIA

FUNDAMENTAL RIGHTS IN INDIA

Author:- Niranjan Biradar

Over the year’s humans have evolved to be the only species with intelligence to understand emotions, share ideas, and have mutual respect. In the future, we have learned to respect one’s life, views, propaganda, and many more things about any topic. As years passed, we could see the drastic changes in the lives of people trying to be superior and rule one’s life; this led to many problems, one of them being the unacceptability of one’s authority over the other. When a single person has control over many, the police must ensure no one is deprived of the rights he deserves.

These things led to bringing up a concept of human rights, which have been traced to natural law philosophers such as Locke and Rousseau. According to Locke, man is born “with a title to perfect freedom and uncontrolled enjoyment of all the rights and privileges of the law of nature”, and he has by nature a power “to preserve his property- i.e. his life, liberty, and estate, against the injuries and attempts of other men”.[1]

The concept of human rights protected individuals from injustice and ensured liberty of free society and served with all the rights they deserved. An argument with the Human rights to fundamental rights in such a way that they could not be violated, tampered with, or desecrated by the official powers of the authorities. These fundamental rights gave people immunity from the government organs.

The fundamental rights not only ensured justice to people through courts but also constricted the government from taking actions against people with which infringed fundamental rights.

The USA was the first nation to guarantee fundamental rights to its people in its constitution drafted in 1787 through this USA gave a concrete shape to the concept of human rights which were enforceable through the court of law. The nature of the fundamental rights in the USA has thus described as” the very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, Freedom of worship and assembly and other fundamental rights may be submitted to vote; they depend on the outcome of no elections”.[2] Following the model of the USA, many countries came up with the concept to protect the rights of their citizens. Countries, namely Britain, Australia, and Canada, had incorporated the idea of human rights, but these countries had made some changes according to their needs and convenience.

India is one of the countries in those countries, which followed the model of the USA. India, was under the rule of the British for over a century, deprived of the rights and was demanded Freedom. Especially in a country like India, which is home to many religions, cultural and linguistic groups, it was necessary to declare fundamental rights to ensure their life and confidence. Though India was a democratic country it was essential to bring fundamental rights as it was found to be protecting the social, economic, and political thoughts of people and also respect one’s views, beliefs, faith and ensure Equality of status for all individuals.

Apart from guaranteeing civil rights, the fundamental rights also put restrictions on the government from making any law that violates or abrogates any rights of its citizens.

FUNDAMENTAL RIGHTS IN PART III OF THE CONSTITUTION

Articles 12-35 states the fundamental rights of people. However, these rights have limitations accordingly. The fundamental rights in the Indian constitution have grouped under six heads follows[3]:

  1. Right to Equality (Article 14-18)
  2. Right to Freedom (Article 19-22)
  3. Right against Exploitation (Article 23&24)
  4. Right to Freedom of Religion (Article 25-28)
  5. Cultural and Educational Rights (Article 29&30)
  6. Right to Constitutional Remedies (Article 32-35) 

While Articles 12&13 speak about definition and inconsistency in the law with derogation of fundamental rights respectively.

RIGHT TO EQUALITY

Article 14: Equality before the law

Article 14 (from now on ‘Article’ refers to Articles of ‘The Constitution of India, 1950’) has the most expansive interpretation as it serves the basic rule of law. This article lays down the most basic concept of Equality. Every person born within the territory of India has the right to be treated. Equally, this article mainly emphasizes that all the people of India whether citizens or not, have equal rights irrespective of gender, power, position, etc. It guarantees Equality before the law to everyone.

Article14 is one of the pillars of the Indian constitution and hence could not be bound by a narrow and inflexible interpretation[4]. Equality, before the law is a dynamic concept having many facts, one of them being there, shall be no privileged person of class and name shall be above the state law[5]. The Supreme Court of India over the years has ensured. Equality is maintained, and justice has prevailed to its people when needed.

Article 15:Prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth.

India is home to religions and known for diversity within people; it was essential to making sure the beliefs and faith of individuals were recognized and respected. Article 15 is a facet of Article 14, but Article 15 is narrower and specific about the issue.

The subsections in this article ensure no prohibition made concerning the accessibility of shops, hotels, restaurants, or any public places based on one’s religion, race, caste, sex, or place of birth[6]. It also ensures the rights of women; children are protected[7], and equal opportunities given to the backward classes[8].

 Many NGOs across the country have been fighting for the rights of women, children, and people of backward classes.

Article 16:Equality of Opportunity in matters of public employment.

Alike article 15, article 16 also ensures that there is no infringement in the rights of people, and Equality maintained concerning employment. This article specifies that there shall be no discrimination made based on religion, race, caste, sex, descent, place of birth, etc. with regards to giving employment.[9]

However, this article gives power to Parliament to make any law prescribing regarding a class or classes of employment or appointment to an office[10]. The state has the power to make provisions for the reservation of appointments or posts in favour of any backward class of citizens[11]and economically weaker sections of citizens in addition to the existing reservation.[12]

Article 17: Abolition of Untouchability

Untouchability was one of the bad practices that practised in India for centuries. It was essential to overcome some cultures which affected a class of people from getting their fundamental rights and who have excluded from society in the name of caste.   

Article 17 brought in to abolish and forbid the practice of Untouchability in any form. It also specified that any form of Untouchability should be a punishable offence by law. Parliament also enacted the Untouchability Offenses Act, 1955 that prescribes the punishment for practices of Untouchability in any form.

The Supreme Court has stated that whenever a private individual violates any fundamental right like Article 17, it is the constitutional obligation of the state to take the necessary steps to interdict such violation and ensure observance of the fundamental right by a private individual who is transgressing the same.[13]

Article 18: Abolition of Titles

The state prohibits from conferring any title except a military or academic distinction. It prohibits citizens of India from accepting any title from a foreign government. The article also specifies any non-citizen of India while having an office of profit under the state shall not take any title from other countries without the consent of the President.[14]

In the case of Balaji Raghavan v. UOI,[15] it held that National Awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan are not “titles” within the meaning of Article 18.

RIGHT TO FREEDOM

Article 19:Protection of certain rights regarding Freedom of Speech.

Any citizen of India has the right to express his views, and it is bound to be respected by others. Freedom of choice in the matter of speech and expression is necessary for an individual his personality in his way[16]provided when there are any violent reactions in the public domain it becomes a punishable offence under the law.[17]

Under this article, it specifies all citizens shall have the right to Freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; to practice any profession or carry on any occupation, trade or business[18].

Contradictory to the above provisions there are certain limitations, such as provisions shall not affect any operation of any existing law like the security of the state, friendly relationship between foreign state, decency or morality or about contempt of court or defamation and also shall not affect the state from making any law imposing, in the interest of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause either in the interests of the general public or for the protection of the interest of any scheduled tribe.[19]

Article 20:Protection and Respect of Conviction for Offenses.

At any instance, no person shall convict of an offence except the violation of law in force at the time nor be subjected to greater than what must be inflicted at the commission of the offences.[20]Besides, no person shall be prosecuted and punished for the same crime more than once[21]and compelled to be a witness against himself.[22]

Article 20(2) protects the rights of a convict when there exists any double jeopardy.  

Article 21:Protection of Life and Personal Liberty.

Article 21 ensures shall deprive no person of his life or personal liberty except according to the procedure established by law. The object of this article is to prevent encroachment upon individual liberty in any manner.[23]

 In the landmark case of A.K. Gopalan v. The State of Madras,[24], denied the petitioner under a preventive detention law. He had argued that violated his right to personal liberty. It held that the word used in Article 21 just meant procedural due process, and since the preventive detention, the law under which detained Gopalan was a good law. It also held that Articles 19, 21,22 were mutually exclusive and independent of each other, and Article 19 was not to apply to a law affecting personal liberty to which Article 21 would apply.

Maneka Gandhi vs UOI[25] gave Article 21 a more extensive and broader interpretation and overruled the Gopalan case. In this case, Maneka’s passport was impounded by the passport authority under Section10(3)(c) of the passport act as it deemed necessary in the interest of national sovereignty and integrity. Justice Krishna Iyer J had held that “the spirit of man is at the root of Article 21” “Personal liberty makes for the worth of the human person”. Article 21 now means that the procedure must satisfy specific requisites in the sense of being fair and reasonable. The system cannot be “arbitrary, unfair or unreasonable”. The court had reached this conclusion by holding that Article 21, 19, and 14 are not mutually exclusive, but are interlinked”.

After Maneka’s case, they observed many changes in Article 21. Article 21 assumed as “highly activist magnitude”. The term “life” has given a very expansive meaning. The name ‘personal liberty’ has given vast amplitude covering a variety of rights, which go to constitute the personal liberty of citizens. Its deprivation shall only be as per the relevant procedure prescribed in the applicable law, but the product has to be fair, just, and reasonable.

Article 21-A: Right to Education

Education plays an essential role in one’s life and teaches the necessary human skills to lead a life. So, the constitution in its 86th amendment, 2002 had made free and compulsory education to all children from six to fourteen years in such manner as the state may, by law, determine.

This article had greater importance as every child had the right to have an education, and with this article, it was possible to make tuition-free and accessible to all.

Article 22: Protection against Arrest and Detention in Certain.

Article 22 guarantees the minimum rights, which any person who is arrested will enjoy.

Clauses (1) and (2) of Article 22 ensures that a person arrested is not to be detained in custody without being informed, as soon as, of the grounds of his arrest and has a right to be defended by a legal practitioner of his choice. A person who arrested is to produced before the nearest magistrate court within twenty-four hours of his arrest and shall detain no person in custody after that period.

Article 22(3) and 22(4) speaks about any such exception when the arrested person is an enemy alien or detained under a law providing for preventive detention. However, the arrested person has the right to know the reason for such detention and shall afford him the earliest opportunity to represent against such order.[26]

RIGHT AGAINST EXPLOITATION

Article 23: Prohibition of inHuman Traffic Beings and Forced Labor

This article specifies exploitation against people, especially the labour class. Traffic in human beings, beggar, and other similar forms of forced labour are prohibited, and any contravention of this provision shall be a punishable offence following the law.[27]

However, it gives power to the state in imposing any compulsory service for public purposes provided the state shall not discriminate between people.[28]

Article 24: Prohibition of Employment of Children in Factories

Child labour was a problem for a long time, it took away childhoods also their educational opportunities, to prevent such inhumane acts the constitution had some restrictions that no child below the age of fourteen years shall be employed to work in any factory or mine engaged in any other hazardous employment.

To support children’s education, the constitution, through its 86th amendment, had implemented free compulsory education for all the students until fourteen years.

RIGHT TO FREEDOM OF RELIGION

Article 25: Freedom of Conscience and Free Profession, Practice, and Propagation of Religion.

India being a secular country, does not discriminate with regards to religion. Every person has the right to practice and propagate his religion with subject to public order, health, morality, and other provisions relating to fundamental rights.[29]

However, the power lies with the state to make any law regulating or restricting economic, financial, political or other secular activities associated with religious practices[30]; or any law providing for social welfare and reform, or throwing open of Hindu religious institutions of a public character to all classes and sections of the Hindus.[31]

Article 26: Freedom to manage Religious Affairs.

Article 26 lays down that every religious denomination or a section thereof has the right to establish and maintain institutions for religious and charitable purposes; to manage its affairs in the matters of religions; to won and acquire movable and immovable property; to administer such property following the law with subject to public order, morality, and health.

Article 27 & 28 speaks about Freedom as to payment of taxes for promotion of any particular religion and the right of Freedom as to attendance at religious instruction or religious worship in certain educational institutions respectively.

CULTURAL AND EDUCATIONAL RIGHTS

Article 29: Protection of Interest of Minorities

Minorities of the country have been oppressed and deprived of their rights; under this article, it ensures that minorities are provided with all rights.

 Any section of the citizens residing in any part of India having a distinct language, script, or culture of its own has the right “to conserve the same”.[32]The article also makes sure 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.[33]

Article 30: Rights of Minorities to Establish and Administer Educational Institutions.

Under this article it is specified that all minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice[34] and the state shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the rights guaranteed under that clause (1)[35]  and also state grant aid to educational institutions without any discrimination whether based on religion or language[36].

Article 31 speaks about the compulsory acquisition of property which repealed the Constitution 44th Amendment Act, 1978.     

RIGHT TO CONSTITUTIONAL REMEDIES

Article 32: Remedies for enforcement of rights conferred this Part

Article 32(1) guarantees the right to move the Supreme Court, by appropriate proceedings, for the enforcement of the fundamental rights enumerated in the constitution.

Article32(2) empowers the supreme court to issue appropriate orders or directions, or writs including writs like habeas corpus, mandamus, prohibition, quo warranty, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

Article 32(3) empowers ParliamentParliament by law to authorise any other court to exercise within the limits of its territorial jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). 

Under Article 32(4), shall not suspend the right guaranteed by this article except as otherwise provided for by this constitution.

Article 32 provides a guaranteed, quick, and summary remedy for enforcing the fundamental rights because a person can go straight to the Supreme Court without any dilatory process from the lower court to a higher court.

Alike Article 32, In the matter of enforcement of fundamental rights, can approach the high courts under Article 226. However, the person can directly go to the Supreme Court in the case of infringement of fundamental rights without having to go to the high court in the first place.[37]

The constitutional validity of state laws not to be considered in proceedings under article 32[38] inserted in the constitutional 43rd amendment, 1977

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

Article 33 empowers ParliamentParliament to determine, by the law, to what extent any of the fundamental rights shall in its application to the members of the armed forces; or member of the forces charged with the maintenance of public order; or person employed in any bureau or other organization established by the state for purposes of intelligence or counterintelligence; or person employed in, or in connection with telecommunication system set up for any forces, bureau or organization referred to in clauses (a),(b)and (c).

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

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

Article 35(a)(i) confers on ParliamentParliament and not the state legislatures, power to make laws concerning any matter which is under items 16(3),32(3),33 and 34 may provide for any law made by ParliamentParliament.

Article 35(a)(ii) confers on ParliamentParliament, and not the state legislature, power to make laws for prescribing punishments for those acts which are declared offences under fundamental rights.

Article 35(b) lays down any law on the date of the commencement of the constitution and dealing with any of the matters mentioned in 35(a) as mentioned above, is to remain in force until altered, repealed, or abrogated by ParliamentParliament.

Note: Before all the fundamental rights are above given to the people; there exists a provision in the constitution which gives the power to suspend all the fundamental rights in case of emergency; Article 358 speaks about the suspension of provisions of article 19 during emergencies and Article 359 speaks about the suspension of the enforcement of the rights conferred by PART III during emergencies.

CONCLUSION

India which was suppressed from the rule of the British for over a century were keen to live a free life to achieve that; the constituent assembly had drafted a firm constitution to protect the rights of the citizens; for the same reason, the fundamental rights were introduced in the country to safeguard the citizen’s dignity, liberty, and propagandas. Fundamental rights played a significant role, as they were the essential features to attain moral and spiritual aspects of an individual.

Supreme Court and other lower courts of India over the years have been prevailing justice to the people when there is any violation of the rights of citizens.

Along with protecting the people’s rights, it also restricts the government from making any law violating the basic rights of people.

In the landmark cases like Kesavananda Bharati v. the State of Kerala, Maneka Gandhi v. Union of India, Indira Gandhi v. Raj Narnia, MC Mehta v. Union of India,1986, etc. The Supreme Court of India has held its decision in favour of the rights of citizens.

Along with the Supreme Court, many NGOs across the country have been successful in fighting for the rights of people, especially women and children. 

  [1]M.P. Jain, Indian Constitutional Law (8ed, Justice Jasti Chelameswar and Justice Dama Seshadri Naidu, 2018)

[2]Ibid

[3]PART III of Indian Constitution.

[4]  

E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555

[5] Sri Srinivasa Theatre v. Government of Tamil Nadu, AIR1992 SC, at 1004

[6] Article 15(1) 

[7] Article 15(3)

[8] Article 15(4)

[9] Article 16(2)

[10] Article 16(3)

[11] Article 16(4)

[12] Article 16(5)

[13] Jain, supra 1

[14] Article 18

[15] AIR 1996 SC 770

[16] The state of Karnataka vs Associated management of English Medium Primary and secondary schools, AIR 2014 SC 2094 

[17] Bimal Gurung v. Union of India

[18]Article 19(1)

[19] Article 19(2), (3), (4) & (5)

[20] Article 20(1)

[21] Article 20(2)

[22] Article 20(3)

[23] 

Siddharam Satlingappa Mhetre vs State of Maharashtra AIR 2011 SC 312

[24] A.K. Gopalan v. State of Madras, AIR 1950 SC 27

[25]Maneka Gandhi v. Union of India AIR 1978 SC 597

[26] Article 22(5)

[27] Article 23(1)

[28] Article 23(2)

[29] Article 25(1)

[30] Article 25(2)(a)

[31] Article 25(2)(b)

[32] Article 29(1)

[33] Article 29(2)

[34] Article 30(1)

[35] Article 30(1-A)

[36] Article 30(2)

[37] Romesh Thappar v. State of Madras, AIR 1950 SC 124

[38]Article 32-A

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