Indian fundamental rights

THE SIX FUNDAMENTAL RIGHTS

 

The original Constitution (1950) had seven Fundamental Rights. But after thei passage of the 44 Amendment in 1978, there are now six Fundamental Rights. i This Amendment deleted the seventh fundamental right, viz., right to property (Art. 31) from the list of Fundamental Rights. In sub-sections below, you will i read about the six Fundamental Rights:

1.Right to Equality

Articles 4 to 18 deal with different aspects of right to equality. Article 14 states i that the state shall not deny to any person equality before the law and equal protection of law within the terrtory of India. It, thus, provides equality before to every person without discriminating on grounds of religion, race, caste, sex or i place of birth. Articles 15, 16, 17 and 18 relate to socio-economic equality. i Article 15 prohibits state from discriminating against any person on grounds only of religion, race, caste, sex. place of birth or any of them. However, the state can make special policies of protective discrimination for welfare of women, i children, socially and educationally backward classes, and SCs and STs. It also prohibits discrimination or restriction to any person from access to shops, public restaurant, hotels and places of public entertainment, or use of wells, tanks, bathing ghats, roads and places of public restaurant which are maintained wholly or partly out of state funds or which are dedicated to the use of general public. Article 16 guarantees equality of opportunity for all citizens in public employment i and prohibits ineligibility of or discrimination against, a citizen in respect of employment or office under the state on grounds of religion, race, caste, descent, place of birth, residence or any of them. However, the state may reserve officeswhich relate to religious or denominated institutions for members professing the concerned religions or denominated institutions. Article l7 abolishes untouchability and prohibits its practice in any form. The enforcement of any disability arising out of untouchabilty 1s punishable by law. Accordng to Article 18, no tile other than miltary and academic distinction shall be conferred by.the state. No citizen of India shall accept any title from a foreign state. No person holding an office of profit or trust under the state shall accept a gift or present or emolument or office of any kind from or under a foreign state.

2. Right to Freedom

Right to freedom are given in Articles 19 to 22. The right to freedom is not an absolute right. It is subject to reasonable restrictions" that may be imposed by law. The Article 19 guarantees the following rights:

i) Ereedom ofspcech and expression: its main concern is the interests of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality or in the relation of contempt of court. defamation or incitement to an offence;

to assemble peacefiully and without arms: it is qualified by the interests of security and integrity of India or public order,

ii) to form associations and unions: it is qualified by the interests of sovereignty

and integrity of India, or public or morality. It also includes "cooperative societies" that was added by 97Amendment in 2012;

to move freely throughout the terrtory of India: general interests of the public or the protection of interests of the scheduled tribes; to reside and settle in any part of the territory.ofIndia: and to practise any protession.or to carry on any occupation, trade or business: it is qualified by professionals' qualification needed for practising them and the power of the state or a corporation owned or controlled by the state to the total or partial exclusion of citizen.

The Articles 20, 2l and 22 assure personal freedom of persons. Central to them, indeed central to all the Fundamental Rights, is the right to life and personal liberty. In 2002. judiciary interpreted this right in a creative way. Right to life is now seen as a right to life of dignity and fulfilment. Moreover, the 86Amendment i 2002 further added Article 21 A to the constitution that authorises the state to provide free and compulsory education to children between the ages of six and fourteen in such manner that the state may determine. Earlier it was present in the ricle 45 of the directive principles of state policy. Article. 20.provides a fair tnal and freedom from arbitrary conviction by-the state. No person can be convicted except for the violation of an ofience under the law prevalent at the time of the commission of tie act charged as an offence, Aticle 22 and its different clauses provide protection against Arrest and Detention in certain cases

3. Right against Exploitation

The Indian constitution guaranteed right against exploitation in Articles 23 and 24. Article 23 prohibits traffic in human beings and beggar (unpaid labour) and other similar forms of forced labour. According to Article 24, no child below the age of fourteen shall be employed in the factory, mine or hazardous occupations.

4. Right to Freedom of Religion

Article 25 entitles all persons equally to freedom of conscience and nght to freel profess, practice and propagate religon. But the freedoms are subject to pubic order, morality and health, and to other provisions of part Ill of the constitution

Nothing in this article shall aflect the operation of any existing law or prevent ssuh fanlthe state from making a law

regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

b) providing for social welfare and reform or throwing of Hindu relgious

institutions of a public character to all classes and sections of the Hindus. Freedom of conscicnce is strengthened by two articles, i.e. Articles 27 and 28 Article 27 provides that no person shall be compelled to pay any taxcs, the proceeds of which are specifically appropnated in payment of expenses for the promotion or maintenance of any particular religion or religious domination. Article 28 prohibits religious instructions in any educational institution wholly maintained by state funds unless such an institution, even though administrated by state, has been setup under and endowment or trust which requires that religious instructions be imparted in them

5. Cultural and Educational Rights

Articles 29 and 30 are about cultural and educational rights. Article 29 grants any section of the citizens residing in the territory of India or any part of it. possessing a distinct language, script or culture of its own, right to conserve it No citizen shall be denied admission into an educational institution maintained by the state or receiving aid out of sate funds on the basis of religion, race, caste. language or any of them, According to the Article 30, all minorities, whether based on religion or language. haye the right to establish and administer educational institutions of their choice.

6. Right to Constitutional Remedies i3-30)

According to Article 32. the Indian Constitution has certain provisions which give powers to the courts to enforce Fundamental Rights. The devices through which the courts protect Eundamental Rights are known as writs or judicial processes. These writs or judicial process are: habeas corpus, mandamus, i pmhibinion, qo warranto and certiorar. The Supreme Court may issue directions or orders or writs to enforce Fundamental Rights. The meanings of the writs are mentioned below:

Habeas corpus: It means "to have the body". Lhis write protects therigh to life and personal liberty (Article 2). Iican be issued by the courts to any. authority which has detained a person without trial to produce him to the court for trnal. It challenges the executive itit has detained anyone against the authonty of law Jt can also challenge a law under which the detention has been made if that law is unconstitutional. The court can free a persons if shehe is detained illegaly. Disobedience to this writ is met with punishment for contempt Mandams is not granted against the President, Governor of the state, the high court or supreme court judges. It is not issued againsta-private-individual or body.

Prohibition: It is a writ issued by a higher court— the Supreme Court or a high court to an inferior court. It prohibits the latter from continuing proceedings to hear a case which is beyond the jurisdiction.

Certiorari: By this writ the Supreme Court, and the High Courts may call for the record of a case from a lower court or semi-judicial body on an allegation of an excess of jurisdiction.

uo Warranto: by-this-writ-the court asks a person-or body of persons under i which authority it is in a public office created by the constitution or a statute. 

THE BASIC STRUCTURE DOCTORINE

 According to the Basic Structure Doctrine, the Parliament can not change through amendments the basic features of the constitution, which include Fundamental Rights along with judicial review, secularism and parliamentary democracy. This doctrine emerged from the Supreme Court judgement in March 1973 about Kesavanad Bharati ws. State of Kerala case. In this case, His Holiness Kesavanand Bharati Spripadagalvanu, leader of a math in Kerala challenged in the Supreme Court the decision of Kerala government about taking over the private land as part of land reforms programme. In its judgement about this case, the Suprreme Court pronounced that basic structure of the constitution, i.e., Fundamental Rights can not be changed. However, the court also held that right to property did not i constitute basic structure of the Constitution. The 44th Amendment, 1978 removed the right to property as Fundamental Rights. As Fundamental Rights are enforceable, the courts have a special responsibility to protect them. The courts protect Fundamental Rights by issuing writs. Prior to Kesavanad Bharati case, i the Supreme Court protected Fundamental Rights in Golakhnath vs. Sate of Punjab case (1967). In this case, the court restricted Parliament from curtailing any Fundamental Right. In Indira Gandh vs. Raj Narayan case in 1975, the Supreme Court used Basic Structure doctrine to strike down the 39h Constitutional Amendment made, which sought to place elections of President, Vice-President, i Prime Minister and Speaker of Lok Sabha beyond the purview of judicial review

 REASONABLE RESTRICTIONS ON FUNDAMENTAL RIGHTS

Indian constitution has provided a safety net to all sections and groups through various articles especially regarding Fundamental Rights of the citizens and the persons. However, the Eundamental Rights are not absolute. There are subject to reasonable restriction. The state can put restrictions on right to freedom forl protection of sovereignty and security of the country; for maintenance of publici order by imposing curfew. and morality: and for maintaining friendly relations with other countries. The state can also put reasonable restrinction of right to equality by devsing welfare policies for marginalised sections of society such as women, children, socially and educationally backward classes, Scheduled Castes and Scheduled Tribes.

Article 33 empowers Parliament the power to restrict or abrogate the application of Fundamental rights in relation to armed forces or the forces, police, etc. p article is meant to instil discipline among the forces whose duties are related to maintenance of public order and sensitive subjects. According to Article 32, a person has fundamental right to approach the Supreme court but not the hign court to seek constitutional remedies for enforcement of Fundamental Rights. i High Court may decline to hear a petition seeking constitutional remedies.