FUNDAMENTAL RIGHTS IN INDIA

INTRODUCTION:

Fundamental Rights are the essential human rights enshrined within the constitution of India which are assured to all citizens barring any type of discrimination. They are enforceable by courts and in case of violation, a person can approach a court of law. They are covered in Part Third (Articles 12 to 35) of the Constitution of India.

SIX FUNDAMENTAL RIGHTS IN INDIAN CONSTITUTION:

1.RIGHT TO EQUALITY

Article 14 of the Indian Constitution provides that the State shall not deny to someone equality before the law and also the equal protection of the laws within the territory of India

Equality before the law implies that among equals the law must be equal. It means the absence of any special privileges in favor of somebody and equal subjection of all classes to the standard law. Thus law should be equal and equally administered.

Equal protection of the laws intends to give equal treatment in similar situations both in privileges bestowed and in liabilities inflicted by law.

The right to equality is offered to both citizens and non-citizens. It focuses on establishing rule of law in India.

Article 15 prohibits the State from making any kind of discrimination on the grounds of religion, caste, race, place of birth, sex, or any of them against any citizen of India.

The State may however make special provisions for ladies, children, and the development of any socially and educationally backward classes of citizens or the Scheduled Castes and Scheduled Tribes. Such provisions are connected to their admission to educational institutions, including private educational institutions, whether aided by the State or not.

Article 16 provides equality of opportunity for all citizens about employment or appointment to any office under the State.

No discrimination shall be made on the grounds of religion, caste, race, sex, place of birth, residence, or any of them concerning any employment or office under the State. However, the State can make provisions for reservation of any backward class of citizens, scheduled caste, and scheduled tribes which are not adequately represented in the services under the State. The offices connected with religious or denominational institutions may be reserved for members professing any particular religion or belonging to a particular denomination.

Article 17 forbids the implementation of Untouchability in any form. This expression refers to the social disabilities imposed on certain classes of persons because of their birth in certain castes. Any person who tries to enforce any kind of disability emerging out of untouchability will be considered guilty of an offence. In 1955, the Parliament passed the Untouchability (Offences) Act, which was consequently renamed the Protection of Civil Rights Act.

Article 18 abolishes the conferring of any kind of Titles. Even non-citizens, who hold any office of profit or trust under the state, cannot accept any title from any foreign State, without the consent of the President. Titles are abolished as they tend to create unnecessary distinctions among people who are not in line with the idea of social, economic, and political justice.

2.   RIGHT TO FREEDOM

Article 19 provides the following liberties:

  • Freedom of speech and expression– It provides freedom of speech and expression subject to reasonable restriction. Courts have the authority to determine whether a particular restriction is reasonable or not. The courts have held that this freedom includes freedom of press and circulation.
  • Freedom of assembly – It confers the freedom to assemble peacefully and without arms. This right includes carrying out meetings and to take out processions. Republic government authorizes citizens to come together peacefully for consultation in respect to public affairs.
  • Freedom to form associations and unions– This freedom encompasses both an individual’s right to join or leave groups voluntarily and the right to an association to accept or decline membership.
  • Freedom of movement- It confers the right to freely move throughout the territory of India. It provides the right of moving from a part of Indian territory to a different part with no discriminatory barriers.
  • Freedom of residence and settlement- It confers the freedom to the citizens of India reside and settles any-where in India. This right is subject to restrictions imposed by the State in the interest of the general public or protection of any scheduled tribe.
  • Freedom of profession– It bestows the freedom to carry on any profession, occupation, business, or trade. However, some reasonable restrictions are imposed on this freedom for protecting the interests of the general public.

These rights are provided only to citizens and not to persons. These rights are subject to reasonable restrictions imposed by the State in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, incitement to an offence, the people in general or of any scheduled tribe.

Article 20 provides for no conviction apart from violation of law in effect. A law that imposes any kind of penalty cannot be changed to be prejudicial to any person supposed to be guilty with retrospective effect. Article 20 also bars prosecution and punishment after an earlier punishment for the same offence.

Article 21 of the Constitution guarantees that the life or personal liberty of any person shall not be taken from him except as per the process made by the law. This right is available to every person whether citizen or not. The right to life is undoubtedly the most fundamental of all rights. Article 21 provides that life is a neither mere act of breathing nor mere animal existence. It has a far wider meaning that includes the right to exist with human dignity, right to livelihood, right to health, right to pollution-free air, etc.

Article 22 provides for protection from arrest and detention in certain cases like an arrested person shall be produced before the nearest magistrate within twenty-four hours of being arrested, shall be told the grounds for the arrest as soon as possible, shall not be detained beyond twenty-four hours of arrest without the authority of the court, shall have the right to consult and be represented by a lawyer of his choice, shall have certain rights in the case of persons detained in pursuance of a law providing for preventive detention.

3. RIGHT AGAINST EXPLOITATION:

Article 23 forbids any person from trafficking in human beings and it also forbids beggar or any similar type of forced labor. Article 23 prohibits human trafficking of any kind. This article forbids sexual exploitation, prostitution, and forced labor. The term ‘beggar’ has also been used in the second clause. The word beggar may be defined as labor or service enacted by the government or a person in power without giving remuneration for it. It is forced labor for which no payment is given.

Article 24 forbids child labor. Employment of children under the age of fourteen years in dangerous factories which may result in physical and mental harm is strictly prohibited.

4. RIGHT TO FREEDOM OF RELIGION:

Article 25 states that the Constitution guarantees to every person the right to freedom of conscience and the right to freely profess, practice, and propagate religion, subject to public order, morality, and health.

Article 26 states that every religious group has a right to set up and maintain institutions for religious and charitable purposes, manage its affairs and properties as per law. It also provides the right to own and acquire movable and immovable property and administer the same following the law.

Article 27 gives freedom to paying taxes for doing advertising or promoting any specific religion.

Article 28 gives freedom for attending or being present at any religious instruction or any kind of religious worship in certain educational institutions.

5. CULTURAL AND EDUCATIONAL RIGHTS:

Article 29 protects the interests of minorities. It gives the right to any group of citizens residing in India to conserve their definite language, script, or culture. It also states that admission into any educational organization shall not be denied on the basis of religion, race, caste, or mother tongue.

Article 30 states that all minorities could set up and administer educational organizations and the State might not discriminate against any educational institution while granting aid only because it is managed by minorities.

6.   RIGHT TO CONSTITUTIONAL REMEDIES:

Article 32 guarantees the right to approach the Supreme Court for the enforcement of fundamental rights. The Supreme Court may issue directions, order, or writs for the enforcement. The right under article 32 may not be suspended except as provided by the constitution.

Types of writs:

  1. HABEAS CORPUS: Habeas Corpus is an order made to a detaining authority by the Court for producing the arrested person before it to check whether the person is detained lawfully or not. If the Court is satisfied that the person is not legally detained, it can furnish orders for releasing him.
  2. MANDAMUS: Mandamus is an order issued by a court in the form of a command to an authority directing it to perform a public duty as per law.
  3. QUO WARRANTOThe writ of quo warranto is employed to have judicially control on executive action for making appointments to public offices. The writ is additionally accustomed to protect a citizen from the holder of a post to which he has no right. The writ calls upon the holder of a government office to exhibit the Court under what power he is holding the said office. If the Court finds out that the said person is not entitled to the office then the Court may restrain him from acting within the office and should also declare the office to be vacant.
  4. CERTIORARI: A writ of certiorari can only be issued by the Supreme Court under Art. 32 and a High court under Article 226 for instructing the inferior courts, all kinds of tribunals or authorities to dispatch to the Court the record of all the proceedings going on, disposed of or pending therein for scrutiny. If the Court finds it necessary, it may be quashing the same
  5. PROHIBITION: A writ of prohibition is generally issued when an inferior court or tribunal starts acting without jurisdiction or more than the jurisdiction or proceeds to act in violation of rules of ordinary justice or proceeds to act under an unconstitutional law or proceeds to act in contradiction to fundamental rights.

Article 33 maintains that parliament has the power to modify the application of the fundamental rights to the members of armed forces and Police forces. This is needed for the right discharge of their duty.

Article 34 states that the Parliament may by law compensate any person serving the Union or of the State or some other person for the upkeep or restoration of order in any area within India where material law was in effect or validate any sentence passed, punishments imposed, forfeiture ordered or other act done under material law in such region.

Article 35 provides that the Parliament has the authority to make laws wherever the Constitution prescribes that a law should be made for giving effect to any fundamental right or where a law is to be made to make any action interferes with fundamental rights punishable.

LANDMARK JUDGMENTS ON FUNDAMENTAL RIGHTS:

  • KESHVANAND BHARTI VS STATE OF KERELA – This case is a milestone judgment on the Constitution by the Supreme Court of India. The court ruled that although there is no indirect restriction on the Parliament’s power to amend any provision of the Constitution but the Parliament cannot pass any law which may violate the basic structure of the Constitution. Moreover, the Supreme Court also upheld its right to review thereby demonstrating its predominance on constitutional matters. The court recommended some basic structures of the Constitution like Free & Fair Elections, Supremacy of Constitution, Independence of the judiciary, Secularism, Federal nature of Constitution, Separation of Power, Republican and Democratic model of Government, etc.
  • MANEKA GANDHI VS UNION OF INDIA– Maneka Gandhi was issued a passport under the old Passport Act 1967. After three days of getting the passport, she received a letter from the Passport Officer informing the decision of the Union government to impound her passport for protecting the interest of the general public and instructing her for surrendering her passport within one week from the date of receiving the letter. Maneka Gandhi wrote a letter to the Regional Passport Officer to explain the reason for sending her the order under the act. However, the Union Government refused to do so. Thus, Maneka Gandhi filed this Writ Petition to challenge the impounding of her passport and also refusing to state reasons for doing the identical. In its milestone judgment the Court held that though the maxim employed in Article 21 is “procedure established by law” instead of “due process of law” nevertheless, the procedure mentioned therein must necessarily be at liberty from the wickedness of irrationality and arbitrariness. The Constitution makers stated that the Constitution was drafted for the protection of the “people of India” and a wrongful interpretation of Article 21 will be unsuccessful. The court declared that the scope of the concept of “personal liberty” is not to be construed in a very narrower or stricter sense. It directed that the concept needs to be understood broadly and liberally in the future by the Courts.
  • MINERVA MILLS VS UNION OF INDIA – In the instant case it was held that although the Constitution had granted a limited amending power on the Parliament to amend the Constitution, Parliament cannot while using that limited power extend it to absolute power. Indeed, this limited amending power of Parliament is one of the fundamental features of our Constitution and thus, the restrictions on that power cannot be destroyed. The Parliament cannot repeal or revoke the Constitution under the shield of its power to amend the Constitution given in Article 368 thereby destroying the basic structure or essential features of the Constitution. Thus, Articles 14, 19, and 21 of the Constitution gives protection from the exercise of unrestrained power. Article 31C assures that the promises made by the preamble of the Constitution shall be fulfilled by establishing an equal, fair, free, and democratic era through fundamental rights.

  • MC MEHTA V.UNION OF INDIA-A Public Limited Company known as ‘Delhi Cloth Mill Ltd’ was running an undertaking called ‘Shriram Foods and Fertilizers Industries’. This undertaking had some chemical manufacturing units. A major leakage of oleum gas occurred from one of the units of this undertaking which affected a large number of people. An advocate named M.C. Mehta filed a writ petition through Public Interest Litigation for the closure of the unit from where the gas leaked. An immediate order was passed by Delhi Administration instructing the company to stop the manufacture of hazardous chemicals and gases. The Supreme Court awarded payment of compensation to the victims of the oleum gas leak. It held that when an enterprise is engaged in a hazardous or dangerous activity it is strictly and liable to compensate all the people adversely affected and such liability is not subject to any exceptions. It also observed that the amount of compensation should be up to the proportion of the harm caused to the people and should also correspond to the ability of the company to have a deterrent effect. The Court also instructed the company to comply with all the recommendations of the Committees formed to help the victims and prevent the occurrence of any such disaster in the future and issued a stern notification that failure to comply will result in the immediate closure of the plant. The scope of Art 21 was made much wider to include the right to health, the right to a healthy environment, the right to have pollution-free water and air. The right to have a clean environment was also included as a Right under Art 21 of The Constitution of India.
  • VISHAKA VS STATE OF RAJASTHAN– This writ petition was filed by some social workers and women groups against the State of Rajasthan because of the brutal gang rape of a woman social worker in a village of Rajasthan. This petition was filed for the enforcement of fundamental rights of working women guaranteed under Article 14, 19, 21 of the Constitution of India. The Supreme Court laid down certain mandatory guidelines and rules to be followed in all workplaces to preserve and enforce gender equality. The guidelines imposed the duty on the employer to prevent or deter the commission of sexual harassment acts and their prosecution. If such acts amount to offence then the employer shall take legal action by filing a complaint to the legal authority. If such acts amount to misconduct then the employer should take appropriate disciplinary action. A workplace should have a complaints committee headed by a woman to redress the complaint of sexual violence made by the victim. Awareness of the rights of working women should be spread. The Central Government and the State Government were asked to make laws to enforce the guidelines laid down.
  • DK. BASU VS STATE OF WEST BENGAL – DK Basu, the Chairman of Bengal’s Legal Aid Services cell wrote a letter to the Chief Justice of India asking him to take notice of some news articles published regarding the deaths in police lock-ups and custody. He appealed to the official in power to treat the letter as a Writ Petition within the “Public Interest Litigation” class. Considering the importance of the problems mentioned in the letter the Court made an order for issuing notices to the State Governments and a notification was also issued to the Law Commission of India requesting suitable suggestions within two months. The court decided to execute an effective mechanism for recording and notification of all the detention and arrest cases. The Court issued some guidelines to protect the detenus and prisoners such as the arrested person can meet up with his lawyer, he should be medically examined every 48 hours, he has to be presented before the magistrate within 24 hours of his arrest, his relatives must be informed not only of the arrest but also about place and time of arrest, a memo should be made at the time of arrest and it should be sent to the magistrate, etc.

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