Fundamental Rights: Part III (Articles 12-35) – UPSC Notes

Articles 12-35 (Part III) of the Indian Constitution deal with Fundamental Rights. Fundamental Rights are largely inspired by the Bill of Rights in the American Constitution.

Part 3 and Part 4 together form the conscience of the Constitution or intellectual component of the State. Fundamental Rights are essential for the healthy functioning of democracy therefore called a cornerstone of Indian Democracy.

These rights are the most indispensable assets of an individual to achieve his fullest physical, intellectual, and spiritual stretcher. They are also fundamental because the State can not take away these rights and any law which infringes upon them will be declared null and void. It is preventive the state from becoming arbitrary or authoritarian, they are fundamental for having the civilized society in place.

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory. Rights are of essential importance in such disciplines as law and ethics, especially theories of justice and deontology.

Natural rights are rights that are “natural” in the sense of “not artificial, not man-made”, as in rights deriving from human nature or from the edicts of a god. They are universal; that is, they apply to all people and do not derive from the laws of any specific society. They exist necessarily, inhere in every individual, and can’t be taken away.

For example, it has been argued that humans have a natural right to life. These are sometimes called moral rights or inalienable rights.

Legal rights, in contrast, are based on a society’s customs, laws, statutes or actions by legislatures. An example of a legal right is the right to vote of citizens. Citizenship, itself, is often considered as the basis for having legal rights and has been defined as the “right to have rights”. Legal rights are sometimes called civil rights or statutory rights and are culturally and politically relative since they depend on a specific societal context to have meaning.

Q. Right to vote and to be elected in India is a –

a) Fundamental Right
b) Natural Right
c) Constitutional Right
d) Legal Right

Fundamental Rights

Fundamental Rights are protected and guaranteed by the Constitution and they cannot be taken away by an ordinary law enacted by the legislature. If a legal right of a person is violated, he can move to an ordinary court, but if a fundamental right is violated the Constitution provides that the affected person may move to High court or Supreme Court.

Universal Declaration of Human Rights

The General Assembly, Proclaims the Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

In 1925 the Indian National Congress finalized the draft of the Common Wealth of India Bill adopting a ‘Declaration of Rights.’ The Madras Session of the Congress held in the year 1927 – demanded incorporation of a ‘Declaration of Fundamental Rights’ in any future constitutional framework.

The Karachi Session of the Congress in 1931 adopted a detailed program of fundamental rights. The Government of India Act, 1935 was passed without any bill of rights much to the disappointment of the Indian leaders.

It was the ‘Sapru Committee’ of 1945 that subsequently stressed the need for a written code of fundamental rights and the Constituent Assembly raised a forceful demand for the inclusion of human rights in the Constitution.

The framers of the Constitution derived inspiration from the Constitution of the USA (i.e., Bill of Rights) and adopted Fundamental Rights in Part III of the Constitution from Articles 12 to 35.

Part III of the Constitution (which contains FRs) is rightly described as the ‘Magna Carta of India’.

Fundamental Rights are justiciable allows persons to move the courts for their enforcement, if and when they are violated. The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land.

Fundamental Rights are guaranteed by the Constitution to all persons and legal entities without any discrimination. They uphold the equality of all individuals, the dignity of the individual, the larger public interest, and unity of the nation.

Establishing ‘A Government of Laws and Not Of Men’

The Constitution listed the rights that would be specially protected and called them ‘fundamental rights’.

These rights are so important that the Constitution has separately listed them and made special provisions for their protection. The Constitution itself ensures that they are not violated by the government.

They promote 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 check and balance the tyrannical power of the executive and arbitrary law of legislature. In short, they aim at establishing ‘a government of laws and not of men.

Ordinary Rights and Fundamental Rights:

  • Rights may be either statutory or constitutional. When a right is enacted in an ordinary law of the land it is a statutory right. And when the Constitution guarantees any right it assumes the status of a constitutional right.
  • Ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the Constitution of the country.
  • Ordinary rights may be changed by the legislature by the ordinary process of law-making, but a fundamental right may only be changed by amending the Constitution itself.
  • Judiciary has the powers and responsibility to protect fundamental rights from violations by actions of the government. Executive, as well as legislative actions, can be declared illegal by the judiciary if these violate the Fundamental rights or restrict them in an unreasonable manner.

Originally, the Constitution provided for seven Fundamental Rights viz,

  • Right to equality (Articles 14–18)
  • Right to freedom (Articles 19–22)
  • Right against exploitation (Articles 23–24)
  • Right to freedom of religion (Articles 25–28)
  • Cultural and educational rights (Articles 29–30)
  • Right to property (Article 31)
  • 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 present, there are only six Fundamental Rights.

Features of Fundamental Rights

  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. The state can impose restrictions on Fundamental rights. (They are not absolute but qualified).
  3. Except Fundamental rights guaranteed under Articles 20 and 21 remaining Fundamental rights can be suspended during the operation of a National Emergency.
  4. Article 19 can be suspended only when an emergency is declared on the grounds of war or external aggression and not on the grounds of armed rebellion.
  5. Most of the FRs are available against the arbitrary action of the State.
  6. Some of FRs are negative in character, they place limitations on the authority of the State
  7. Some other FRs are positive in nature, as they confer certain privileges on the persons.
  8. FRs 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 judgment of the high courts.
  9. FRs are not sacrosanct or permanent –> Meaning, 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.
  10. Their scope of operation is limited by Article 31A (saving of laws providing for the 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).
  11. Article 33 enables the parliament to restrict the application of FR to the members of armed forces, para-military forces, police forces, intelligence agencies, and analogous services.
  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).

Article 12 provides the ‘Definition of the State’.

The “State” includes –

  • the Government and Parliament of India
  • the government and the state legislature
  • all local authorities (municipalities, Panchayati Raj, District boards. etc)
  • Other statutory and non-statutory authorities (LIC, ONGC, etc.).

The actions of the state (all the above said) can be challenged in the courts as a violation of 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.

Article 12 does not explicitly mention the judiciary. However, as the judiciary is the guardian of fundamental rights, an obvious question that can arise is ‘Can Courts be defined as ‘State’ under Article 12 of the Indian Constitution?’

The High Court of Bombay recently answered this question in the case of The National Federation of the Blind, Maharashtra & Anr v. The High Court of Judicature of Bombay, wherein it held that ‘Courts are included within the definition of “State” only on the administrative side while dealing with employees or while taking decisions in an administrative capacity and not on the judicial side’.

Article 13 – Laws inconsistent with or in derogation of the fundamental rights.

Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void.

It provides for the “doctrine of judicial review”.

Supreme Court (according to Article 32) and the high courts (according to Article 226) 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:

  1. Permanent laws enacted by the Parliament or the state legislatures;
  2. Temporary laws like ordinances issued by the president or the state governors;
  3. Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation, or notification; and
  4. Non-legislative sources of law, that is, custom or usage having the force of law

Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged (24th amendment act).

However, the Supreme Court held in the Kesavananda Bharati case (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.

Please note: The word “Judicial Review” is nowhere mentioned in the Constitution.

ARTICLE 14-18 RIGHT TO EQUALITY (14-18)

Article 14: Equality before law and equal protection of laws

Article 14 says that State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 14 aims to establish the “Equality of Status and Opportunity” as embodied in the Preamble of the Constitution.

Equality before law – no one is above the law of the land.

Equality before law: The absence of any special privileges in favor of any person. This concept ensures the following,

  1. The absence of any special privileges in favor of any person,
  2. The equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and
  3. No person (whether rich or poor, high or low, official or non-official) is above the law.

Note: Equality before law is taken from the British Constitution.

Equal Protection of Laws: The equality of treatment under equal circumstances.

  1. The equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws,
  2. The similar application of the same laws to all persons who are similarly situated, and
  3. The like should be treated alike without any discrimination.

Note: Equal Protection of Laws is taken from the American Constitution.

The concept of ‘equal protection of the laws’ requires the State to give special treatment to persons in different situations in order to establish equality amongst all. It is positive in character.

Therefore, the necessary corollary to this would be that equals would be treated equally, whilst un-equals would have to be treated unequally.

These provisions confer rights on all persons whether citizens or foreigners.

The word ‘person’ includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person.

The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.

Rule of Law

The guarantee of equality before the law is an aspect of what Dicey calls the Rule of Law in England. It means that no man is above the law and that every person whatever be his rank or condition is subject to the jurisdiction of ordinary courts.

Rule of law requires that no person shall be subjected to harsh, uncivilized, or discriminatory treatment even when the object is the securing of the paramount exigencies of law and order.

Professor Dicey gave three meanings of the Rule of Law –

1. Absence of arbitrary power or supremacy of the law

It means the absolute supremacy of law as opposed to the arbitrary power of the Government. In other words – a man may be punished for a breach of the law, but he can’t be punished for anything else.

2. Equality before the law

It means subjection of all classes to the ordinary law of land administrated by ordinary law courts. This means that no one is above the law all are equal in eyes of the law

3. Absence of individual liberty

There are various constitutions that provide individual liberty but not provide method It means that the source of the right of individuals is not the written constitution. The U.K. doesn’t have provisions for individual liberty.

Rule of Law in India

1. Supremacy of Law:

The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. It implies that a man may be punished for a breach of law but cannot be punished for anything else. No man can be punished except for a breach of law. An alleged offense is required to be proved before the ordinary courts in accordance with the ordinary procedure.

2. Equality before Law:

The Second meaning of the Rule of Law is that no man is above law. Every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Everybody under Article 14 is equal before the law and has equal protection.

3. Individual Liberty

A lot of individual liberty is mention like fundamental right in Article 21- protection of life and personal liberty, Article 19- Right to freedom, etc. and courts are there to protect individual liberty.

The first and second aspect applies to Indian system but the third aspect of the Dicey’s rule of law does not apply to Indian system as the source of right of individuals is the constitution of India.

The constitution is the supreme law of the land and all laws passed by the legislature must be consistent with provisions of the constitution.

The rule of law imposes a duty upon the state to take special measures to prevent and punish brutality by police methodology. The rule of law embodied in article 14 is the basic feature of the Indian constitution and hence it can’t be destroyed even by an amendment of the constitution under article 368 of the constitution.

Exceptions to Equality

The rule of equality before the law is not absolute and there are constitutional and other exceptions to it. These are mentioned below:

  • The President or Governor of the state is not answerable to a court of law for exercising their executive powers.
  • No criminal proceeding against the President or Governor of state can be instituted or continued during their tenure in office.
  • No civil proceeding in which there is a claim of compensation can be instituted against the President or Governor of the state except after the expiry of a 2-month notice issued against them.
  • Under international law, foreign diplomats who are on a visit to India or posted here, and leaders or heads of state on their official visit are not answerable in the local courts.

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

Article 15 prohibits the state from discriminating against any citizen on the ground of any religion, race, caste, sex, and place of birth, or any of them. It provides that there shall be no restriction on any person on any of the above bases to access and use the public places.

Exceptions:

  1. However, this Article does not prevent the State from making any special provisions for women or children.
    For example, reservation of seats for women in local bodies or the provision of free education for children.
  2. It also allows the State to extend special provisions for socially and educationally backward classes for their advancement. It applies to the Scheduled Castes (SC) and Scheduled Tribes (ST) as well.
    For example, reservation of seats or fee concessions in public educational institutions.
  3. 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 (93rd Amendment Act of 2005).

In order to give effect to this provision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs).

Think! about Creamy layer,

In order to bring about real equality, preference given to the socially and educationally disadvantaged group is justified.

Article 16: Equality of opportunity in the matter of public employment

Article 16 provides the guarantee of equality of opportunity in matters of public employment.

Article 16(1) and 16(2) have laid down a general rule that there shall be equal opportunity for all citizens and thus emphasizes on the universality of Indian Citizenship.

No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth, or residence.

Exceptions:

As per Article 16(3), residence qualifications may be made necessary in the case of appointments under the state for particular positions, thus making the domicile provisions stronger, however, the power is not vested in the states but in Parliament to prescribe the requirement as to residence in the state.

Article 16(4) empowers the state to make special provisions for the reservation of appointments or posts in favor of any “backward class of citizens” which in the opinion of the state are not adequately represented in the services of the state.

Equality, as guaranteed in our Constitution, not only conceives of providing formal equality but also to provide for real and absolute equality. Articles 14 and 15(1) enable and contemplate classification to achieve the Constitutional Objective of real equality. Articles 15(4) and 16(4) flows out of Articles 15(1) and 16(1) respectively and can never be considered as exceptions to Article 15(1) and Article 16(1).

103rd Constitutional Amendment Act: Changes in Article 15 and 16

The Constitutional (103rd Amendment) Act got the assent of the President of India on 13th January 2018. It provides reservation of jobs in central government jobs as well as government educational institutions. It is also applicable to admissions to private higher educational institutions.

It applies to citizens belonging to the economically weaker sections from the upper castes.

This reservation is “in addition to the existing reservations and subject to a maximum of ten percent of the total seats in each category”.

The Statement of Objects and Reasons of the Bill states that people from economically weaker sections of the society have largely remained excluded from attending higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.

The bill states that it is drafted with a will to mandate Article 46 of the Constitution of India, a Directive Principle that urges the government to protect the educational and economic interests of the weaker sections of society. While socially disadvantaged sections have enjoyed participation in the employment in the services of the state, no such benefit was provided to the economically weaker sections.

  • Article 15 (6) is added to provide reservations to economically weaker sections for admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. The amendment aims to provide reservations to those who do not fall in 15 (5) and 15(4) (effectively, SCs, STs, and OBCs).
  • Article 16 (6) is added to provide reservations to people from economically weaker sections in government posts.
  • An explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

Equal pay for equal work:

The principle of equal pay for equal work has not been specifically declared to be a Fundamental Right under the Indian Constitution. But it certainly is a constitutional goal. The principle of equal pay for equal work would be an abstract doctrine not attracting Article 1 4 if sought to be applied to them.

But equality clause will have some substance if equal work means equal pay and such right is deducible from Article 14 and 16 in the light of Preamble to the Constitution and Article 39(d) of the Directive Principles of the Constitution.

There cannot be any unequal scale of pay on the basis of no classification or irrational classification when they do identical work under the same employer. Thus, the court makes liberal use of the equality clause to make the directive of equal pay for equal work more authentically constitutional than what it is.

Article 17: Abolition of Untouchability

Article 17 abolishes untouchability and its practice in any form is made punishable under the law.

This was the article which was adopted with the cries of “Mahatma Gandhi ki Jai”.

Note: The term ‘untouchability’ has not been defined either in the Constitution or in the Act.

Accordingly, the Parliament passed Untouchability (Offences) Act, 1955.

In the year 1976, this act is renamed as Civil Rights Act, 1955.

Under the Protection of Civil Rights Act (1955), the offenses committed on the ground of untouchability are punishable either by imprisonment up to six months or by fine up to Rs500 or both.

The act defines a civil right as any right accruing to a person by reason of the abolition of
untouchability by Article 17 of the Constitution.

A person convicted of the offense of ‘untouchability’ is disqualified for election to the Parliament or state legislature.

The Supreme Court held that the right under Article 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.

Think! – How Article 17 is related and debated in the recent case of Sabarimala Temple entry w.r.t Women?

Article 18 – Abolition of titles except military and academic

Article 18 prevents the state from confirming any title except military and academic distinction.

Article 18 prohibits the Indian citizens from receiving titles from any foreign state.

Article 18 abolishes titles and makes four provisions in that regard:

  • a) It prohibits the state from conferring any title (except military or academic distinction) on anybody, whether a citizen or a foreigner.
  • b) It prohibits a citizen of India from accepting any title from any foreign state.
  • c) A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
  • d) No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.

Note the Supreme Court upheld the constitutional validity of the National Awards—Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Sri. It ruled that these awards do not amount to ‘titles’.

ARTICLE 19-22: RIGHT TO FREEDOM

Article 19 — Protection of certain rights regarding freedom of speech, etc.

1. Right to freedom of speech and expression.

Why to protect freedom of speech?

Freedom of speech offers a human being to express his feelings to others, but this is not the only reason; purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech –

  • For the discovery of truth by open discussion – According to it, if restrictions on speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinions. That is to say, it assists in the discovery of truth.
  • Free speech as an aspect of self- fulfillment, and development – freedom of speech is an integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on what we are allowed to say and write or to hear and read will hamper our personality and its growth. It helps an individual to attain self-fulfillment.
  • For expressing belief and political attitudes – freedom of speech provides an opportunity to express one’s belief and show political attitudes. It ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
  • For active participation in democracy – democracy is the most important feature of today’s world. Freedom of speech is there to protect the right of all citizens to understand political issues so that they can participate in the smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in participating in decision-making.

It is apparent that the right to information was not spelled out as a separate right under Article 19. However, it is now well-settled in a catena of cases that the right to freedom of speech and expression enshrined in Article 19(1)(a) includes the right to information.

In-State of U.P. v. Raj Narain, (1975) 4 SCC 428, it was observed that the right to know is derived from the concept of freedom of speech.

This was further confirmed in S.P. Gupta v. Union of India, 1981 Supp SCC 87, where it was held that:

“The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands.”

The law in this regard has been developed over the years, in Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 and in PUCL v. Union of India, (2003) 4 SCC 399.

In consonance with its duty, Parliament enacted the Right to Information Act in 2005.

2. Right to assemble peaceably and without arms.

The right is however subject to the following restrictions:-

  • The assembly must be peaceful and harmonious;
  • It must be unarmed and not threatening the safety of the people;
  • Reasonable restrictions can be imposed under clause 3 of article 19.

The right to assembly embodies the very idea of a democratic government. Article 19(1)(b) thus includes the right to hold meetings and to take out processions. However, this right is not absolute but restrictive in nature. The assembly must be non-violent and must not breach public peace.

Think! Can the state restrict a citizen’s right to protest?

3. Right to form associations or unions or co-operative societies.

The right to form associations or unions has a very wide and varied scope including all sorts of associations viz., political parties, clubs, societies, companies, organizations, entrepreneurship, trade unions, etc.

It was held in Kulkarni’s case that the right of association pre-supposes organization. It is an organization or permanent relationship between its members in matters of common concern. It thus includes the right to form companies, societies, partnerships, and trade unions.

The right to form trade unions should not lead to the conclusion that trade unions have a guaranteed right to effective collective bargaining or to strike as a part of collective bargaining or otherwise. The right to strike or to declare a lock-out may be controlled or restricted by various industrial legislations such as the Industrial Dispute Act or Trade Unions Act.

Right to form association does not carry the right to recognition
Right to form association does not carry the right to strike
Right to form association does not carry the right to inform rival union

4. Right to move freely throughout the territory of India.

Article 19(1)(d) of The Indian Constitution guarantees to all citizens of India the Right “to move freely throughout the territory of India.” This Right is, however subject to reasonable restrictions mentioned under Article 19(5). Clause (5) of Article 19 empowers the State to impose reasonable restrictions in the interest of the general public or for the protection of the interest of any Scheduled Tribe.

According to clause (5) of Article 19 of the Indian Constitution State may impose reasonable restrictions on the Freedom of movement on two grounds:

  • In the Interest of General Public
  • For the Protection of Scheduled Tribes

5. Right to reside and settle in any part of the territory of India.

Article 19(1)(e) of the Indian Constitution guarantees to every citizen of India, the right “to reside and settle in any part of the territory of India”. This right is subjected to reasonable restrictions which may be imposed by the State, a by-law under clause (5) of Article 19, in the interest of the general public or for the protection of the interest of any Scheduled Tribe.

Article 19(1)(d) and Article 19(1)(e) are Complementary

It is to be noted that the right to reside [under Article 19(1)(e)] and right to move [under Article 19(1)(d)] freely throughout the Country are complementary and often go together. Most of the Cases considered under Article 19(1)(d) are relevant to Article 19(1)(e) also. The two rights, therefore, discussed together.

The Freedom of Movement and Residence apply only to citizens of India and not the Foreigners. A foreigner cannot claim the right to reside and settle in the country as guaranteed by Article 19(1)(e). The Government of India has the power to expel foreigners from India.

6. Right to practice any profession or to carry on any occupation, trade or business.

All citizens are given the right to practice 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 State can impose reasonable restrictions on the exercise of this right in the interest of the general public.

The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in Article 19 itself and not on any other grounds.

Article 20: Protection in respect of conviction for offences.

Article 20 of the Constitution is with respect to protection in respect of conviction of an offense. It imposes limitations on the powers of the State, which it otherwise possesses under Article 21, to enact and enforce criminal laws.

Article 20(2) is aimed at protecting an individual from being subjected to prosecution and conviction for the same offense more than once.

Article 20(3), which protects an individual against self-incrimination, has been termed a ‘humane’ Article. It gives protection to a person accused of an offense against compulsion to be a witness against himself. This is in consonance with the expression ‘according to the procedure established by law’, enshrined in Article 21, within the ambit of which just and fair trials lie.

Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or a legal person like a company or a corporation.

  • No ex-post-facto Legislation
  • No Double Jeopardy
  • No Self-incrimination

Article 21: Protection of Life and Personal Liberty.

Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and noncitizens.

Article 21 secures two rights:

  • Right to life
  • Right to personal liberty

The expression “Procedure established by law” is a more definite phrase and this phrase finds the place in the Japanese Constitution of 1946. It implies that the life and personal liberty of a person cannot be encroached upon arbitrarily without the proper sanction and provision of law.

Though the phraseology of Article 21 starts with a negative word but the word No has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to the procedure established by law.

It clearly means that this fundamental right has been provided against the state only. If, an act of private individual amounts to encroachment upon the personal liberty or deprivation of life of another person, such violation would not fall under the parameters set for Article 21.

In such a case the remedy for the aggrieved person would be either under Article 226 of the constitution or under general law. But, where an act of private individual supported by the state infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21. Article 21 of the Constitution deals with the prevention of encroachment upon personal liberty or deprivation of life of a person.

The Supreme Court has reaffirmed its judgment in the Menaka case in subsequent cases. It has declared the following rights as part of Article 21:

(a) Right to live with human dignity.
(b) Right to the decent environment including pollution-free water and air and protection
against hazardous industries.
(c) Right to livelihood.
(d) Right to privacy.
(e) Right to shelter.
(f) Right to health.
(g) Right to free education up to 14 years of age.
(h) Right to free legal aid.
(i) Right against solitary confinement.
(j) Right to speedy trial.
(k) Right against handcuffing.
(l) Right against inhuman treatment.
(m) Right against delayed execution.
(n) Right to travel abroad.
(o) Right against bonded labor.
(p) Right against custodial harassment.
(q) Right to emergency medical aid.
(r) Right to timely medical treatment in the government hospital.
(s) Right not to be driven out of a state.
(t) Right to fair trial.
(u) Right of prisoner to have necessities of life.
(v) Right of women to be treated with decency and dignity.
(w) Right against public hanging.
(x) Right to hearing.
(y) Right to information.
(z) Right to reputation.

Article 21 A — Right to Education

Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine.

Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education.

This provision was added by the 86th Constitutional Amendment Act of 2002. This amendment is a major milestone in the country’s aim to achieve “Education for All”.

Even before this amendment, the Constitution contained a provision for free and compulsory education for children under Article 45 in Part IV. However, being a directive principle, it was not enforceable by the courts. Now, there is scope for judicial intervention in this regard.

The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full-time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

The RTE Act provides for the:

Right of children to free and compulsory education till completion of elementary education in a neighborhood school.

It clarifies that ‘compulsory education’ means the obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance, and completion of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.

It makes provisions for a non-admitted child to be admitted to an age appropriate class.

It specifies the duties and responsibilities of appropriate Governments, local authority, and parents in providing free and compulsory education and sharing of financial and other responsibilities between the Central and State Governments.

It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours.

It provides for rational deployment of teachers by ensuring that the specified pupil-teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings.

It also provides for prohibition of deployment of teachers for non-educational work, other
than decennial census, elections to the local authority, state legislatures, and parliament, and
disaster relief.

It provides for the appointment of appropriately trained teachers, i.e. teachers with the requisite entry and academic qualifications.

It prohibits –
(a) physical punishment and mental harassment;
(b) screening procedures for admission of children;
(c) capitation fee;
(d) private tuition by teachers and
(e) running of schools without recognition,

It provides for the development of curriculum in consonance with the values enshrined in the Constitution, and which would ensure the all-round development of the child, building on the child’s knowledge, potentiality, and talent and making the child free of fear, trauma, and anxiety through a system of child-friendly and child-centered learning.

Article 22: Preventive Detention

Article 22 is also a very important Article which has given rise to so many controversial legislations.

The issue related to this Article is the “issue of preventive detention’. Our purpose is to get the basic idea of “preventive Detention” and related contemporary issues. Article 22 of the constitution of India provides that:

  • A person cannot be arrested and detained without being informed about the grounds of such arrests.
  • This means that before a person is arrested, he/ she must be informed that he is being arrested and the reason why he/she is being arrested.
  • A person who is arrested cannot be denied to be defended by a legal practitioner of his choice.
  • This means that the arrested person has the right to hire a legal practitioner to defend himself/ herself.
  • Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
  • The custody of the detained person cannot be beyond the said period by the authority of the magistrate.
  • Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above safeguards are not available to the following:
    • If the person is at the time being an enemy alien.
    • If the person is arrested under certain law made for the purpose of “Preventive Detention”

The first condition above is justified, because when India is in war, the citizen of the enemy country may be arrested.

The reasons for the introduction of such a clause were explained by Ambedkar thus:

“It has to be recognized that in the present circumstances of the country, it may be necessary for the executive to detain a person who is tampering either with public order or with the Defence Services of the country. In such a case, I do not think that the exigency of the liberty of the individual shall be placed above the interests of the State.”

Ambedkar, however, pointed out the safeguards provided in the Constitution to mitigate the rigors of an apparently absolute power of preventive detention permitted under Article 22 (3).

  1. First, every case of preventive detention must be authorized by law. It cannot be at the will of the executive.
  2. Secondly, no law of preventive detention shall normally authorize the detention of a person for a longer period than three months.
  3. Thirdly, every case of preventive detention for a period longer than three months must be placed before an Advisory Board composed of persons qualified for appointment as Judges of a High Court. Such cases must be placed before the Board within the three months period.
  4. Fourthly, no person who is detained under any preventive detention law can be detained indefinitely. There shall always be a maximum period of detention in which Parliament is required to prescribe by law.
  5. Fifthly, in cases that are required to be placed before the Advisory Board, the procedure to be followed by the Board shall be laid down by Parliament.
  6. Sixthly, when a person is detained under a law of preventive detention, the detaining authority shall communicate to him the grounds on which the order has been made. It should also afford him the earliest opportunity of making a representation against the order.

Article 23 and 24: Right against Exploitation

  • Article 23 Prohibition of traffic in human beings and forced labor
  • Article 23 prohibits traffic in human beings and forced labor such as beggar.

This includes the slave trade where humans were sold for the purposes of sexual exploitation, prostitution, or forced labor. It is more commonly known as the modern form of slavery as compared to the olden times when it only meant having the slaves attend to various household problems.

The term ‘begar’ has been used in this clause. It is a word in Indian English which means forced labor with no compensation. When the British ruled our country, the begar system was in effect. British officials and Zamindars used people with poor backgrounds to carry their personal belonging from one place to another.

The Zamindars, through cunning tricks, deceived generations of a family into working on their farms for free. These activities come under forced labor and were rendered illegal through our constitution. As per the provisions enshrined in the constitution, the government passed “The Immoral Traffic (Prevention) Act 1956” and “The Bonded Labor System (Abolition) Act 1976”.

The important points are:

In case of disasters or any such emergency situation where the government needs additional help from the civilian workforce, even then it can’t have them work without paying any remuneration. It still has to pay those workers the minimum wage set at that time.

We all know that the prisoners get paid for the work they do in jail. There are two cases here. It is not a violation of Article 23 if the prisoners who are sentenced to rigorous punishment are not paid for their work. However, any person who is under preventive detention, normal sentence, or those under trials must be paid reasonable wages if they want to work.

Now, let’s understand another related term, Bonded Labour.

It is also called forced labor. As clear as the name is, it doesn’t simply mean forced manual work, but also the work done due to economical compulsions. For example, if a person is forced to take up work that pays less than the predefined minimum wage, it is also a violation.

Article 24: Prevention of child labour

Article 24 mandates that – ‘No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment’.

The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing speedy trial of offenses against children or of violation of child rights.

In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops, factories, resorts, spas, tea-shops, and so on. It warned that anyone employing children below 14 years of age would be liable for prosecution and penal action.

The Indian government had promulgated a legislation Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (“CL Act”) to regulate child labor practices in India.

The central legislature has made substantial changes in the provisions of the CL Act in the year 2016 and the said amendments have been made effective from July 30, 2016.

Pursuant to the said amendment the name of the CL Act has been changed to ‘Child and Adolescent Labour’ (Prohibition and Regulation) Act, 1986′. A complete prohibition has been imposed on the employment of child labor (i.e. a person below the age of 14 years) in any establishment whether hazardous or not.

Features

  • A child is permitted to work only to help family, in a family enterprise, or as a child artist after school hours or during vacations.
  • The amendment has introduced the concept of adolescent labor for the first time.
  • An adolescent has been defined as a person between the ages of 14-18 years.
  • The amendment permits the employment of adolescent labor except in hazardous processes or occupation.
  • The offenses under the Act have now been made compoundable and cognizable notwithstanding the provisions of the Criminal Procedure Code.
  • The CL Act provides for the rehabilitation of children and adolescents who have been victims under the provisions of the CL Act.
  • It provides for setting up of the Child and Adolescent Labour Rehabilitation Fund in which all the amounts of penalty have to be realized.
  • Liability has been affixed upon the parents and guardian of the affected child/children separately from the employers.
  • The Act provides for increased penalty and imprisonment which shall not be less than 6 months and may extend up to 2 years and fine which may vary between Rs. 20, 000 to Rs. 50,000.
  • Previously, the violations under the CL Act were punishable with imprisonment of not less than three months which could extend to one year or/and with a fine of ten thousand rupees which could extend to twenty thousand rupees.

Critical Assessment

The new amendments put a complete prohibition on the employment of children, but at the same time, it allows them to be employed in family enterprises/businesses.

Considering that majority of child labor activities happen in the economically weaker section of the society which is highly unregulated, no proper mechanism has been provided to keep the same in check with the new amendments.

According to UNICEF India, permitting children to work in their family enterprises would lead to more children working in unregulated conditions. Section 3 which has this provision does not even specify the hours of work. It simply states that children can help after school hours or during vacations. It may restrict the children especially the poor children belonging to low caste to traditional caste-based occupations for generations. Also, it may be difficult to determine whether an enterprise is owned by a family or some person has employed the whole family to run the enterprise.

Further, the list of hazardous industries has been drastically decreased, this may allow the employers in industries like chemical mixing units, cotton farms, battery recycling units, and brick kilns, etc. (which are actually hazardous) to employ adolescent labor, which they may even get at a much cheaper price.

It is therefore more important now for the government to keep a check on the working conditions for adolescent labour as well as the working conditions for children in family-run businesses. This would require more personnel deployment which currently is in shortage.

ARTICLE 25 – 28: RIGHT TO RELIGIOUS FREEDOM

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

Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion. The implications of these are:

Freedom of conscience: Inner freedom of an individual to mold his relation with God or Creatures in whatever way he desires.

Right to profess: Declaration of one’s religious beliefs and faith openly and freely.

Right to Practice: the Performance of religious worship, rituals, ceremonies, and exhibition of beliefs and ideas.

Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. But, it does not include a right to convert another person to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to all the persons alike.

Article 25 covers not only Religious beliefs (doctrines) but also religious practices (rituals).

These Rights are available to all person— citizens as well as non-citizens.

Further, the state can impose reasonable restrictions on these Rights on the following grounds:

  • Public Order
  • Morality
  • Health
  • Other provisions relating to Fundamental Rights

Further Article 25 also permits the State to:

  1. Regulate or restrict any economic, financial, political, or other secular activity associated with religious practice; (It means the state will not interfere in religious matters but it can interfere with the economic, financial, political, and other matters of any religion or religious practice)
  2. Provide for social welfare and reform or throw open Hindu religious institutions of a public character to all classes and sections of Hindus. ( In Hindu Religion there are a caste system and a lot of discrimination on the grounds of Castes, so article 25 authorizes the state to open the Hindu Religious Institutions for all Hindus).

Article 25 also contains two explanations:

  • Wearing and carrying of kirpans is to include in the profession of the Sikh religion
  • the Hindus, in this context, include Sikhs, Jains, and Buddhists.

Article 26: Freedom to Manage Religious Affairs

According to Article 26, every religious denomination or any of its section shall have the following rights:

  • Right to establish and maintain institutions for religious and charitable purposes;
  • Right to manage its own affairs in matters of religion;
  • Right to own and acquire movable and immovable property; and
  • Right to administer such property in accordance with the law.

Religious Denomination: Meaning and Scope

It has now been established through various judgments that three conditions must be satisfied in order to qualify as a religious denomination under Article 26. These are:

  • It must be a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being, i.e., common Faith
  • Common Organisation
  • Designated by a distinctive name

Therefore, members belonging to different religions, satisfying the three tests, would be a denomination within the meaning of Article 26. The expression ‘denomination’ can also be used for members forming sects or sub-sects of a religion designated by a distinctive name.

It is pertinent to note that, unlike Article 30, the benefit of Article 26 is not confined to ‘minority’ groups only. Sikhs, not in minority in Punjab, constitute a ‘religious denomination’13 and can thus, claim the benefit of Article 26.

Article 27: Freedom from Taxation for Promotion of a Religion

Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.

In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion.

This provision prohibits the State from favoring, patronizing, and supporting one religion over the other.

This means that the taxes can be used for the promotion or maintenance of all religions.

The provision prohibits only the levy of a tax, not a fee. This is because the purpose of a fee is to control the secular administration of religious institutions and not to promote or maintain the religion. Thus, a fee can be levied on pilgrims to provide them some special service or safety measures. Similarly, a fee can be levied on religious endowments for meeting the regulation expenditure.

Article 28: Freedom from Attending Religious Instruction

Under Article 28, no religious instruction shall be provided in any educational institution wholly maintained out of State funds.

However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting religious instruction in such institution.

According to Article 28 (2), the above provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institutions.

According to Article 28 (3), No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to attend any religious instruction or worship in that institution without his consent. In the case of a minor, the consent of his guardian is needed.

Thus, article 28 distinguishes between four types of educational institutions:

  1. Institutions wholly maintained by the State
  2. Institutions administered by the State but establish under any endowment or trust.
  3. Institutions recognized by the State.
  4. Institutions receiving aid from the State.

In (type-1 institutions) the Institutions wholly maintained by the State, religious instructions is completely prohibited.

In (type-2 institutions) the Institutions administered by the State but established under any endowment or trust, religious instructions are permitted.

In (type-3 and 4 institutions) Institutions recognized by the State and receiving aid from the State, religious instruction is permitted on a voluntary basis.

ARTICLE 29 AND 30: CULTURAL AND EDUCATIONAL RIGHTS

Article 29: Protection of interests of minorities

Article 29 protects the interests of the minorities by making a provision that any citizen/section of citizens having a distinct language, script, or culture have the right to conserve the same.

Article 29 mandates that no discrimination would be done on the ground of religion, race, caste, language, or any of them.

Principles of Article 29

The Bombay High Court held that it embodied two important principles under Article 29:

“One is the right of the citizen to select any educational institution maintained by the State and receiving aid out of State funds. The State cannot tell a citizen, ‘you shall go to this school which I maintain and not to the other’. Here we find reproduced the right of the parent to control the education of the child.”

To come up for detailed interpretation before the Supreme Court in two cases, both of which were appeals from decisions of the Madras High Court, relating to admission to educational institutions maintained by the State. After analysing the facts in detail the Court said:

Features of clauses under Article 29

It protects the language, script or culture of sections of the citizens.

It guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned.

It is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens.

On the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right.”

But the Court rejected this argument on the ground that this was a Directive Principle a nonjusticiable right and it could not override a Fundamental Right which was justiciable. It was the duty of the Court to enforce a Fundamental Right.

With the passing of the Forty-Second Amendment of the Constitution, this argument of the Court has lost much of its force. According to the Amendment where there is a conflict between a Fundamental Right and Directive Principle, Parliament may by law give precedence to the Directive Principle.

Article 29, enunciates the Fundamental Right of any section of citizens residing anywhere in India to conserve its distinct language, script, or culture. No citizen can be denied admission to any educational institution maintained or aided by the state on grounds of language or religion.

Article 30: Right of minorities to establish and administer educational institutions

Article 30 mandates that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Article 30 is called a Charter of Education Rights.

Madarasa are administrated by the Article 30.

Article 30 provides an absolute right to the minorities that they can establish their own linguistic and religious institutions and at the same time can also claim for grant-in-aid without any discrimination.

The term ‘minority’ has not been defined anywhere in the Constitution.

The right under Article 30 also includes the right of a minority to impart education to its children in its own language.

Minority educational institutions are of three types:

  • institutions that seek recognition as well as aid from the State;
  • institutions that seek only recognition from the State and not aid; and
  • institutions that neither seek recognition nor aid from the State.

Article 31: Repealed

Article 32: Right to Constitutional Remedies

Article 32 was called “the very soul of the constitution and the very heart of it” by Dr. B R Ambedkar.

Mere declaration of the fundamental right is meaningless until and unless there is an effective machinery for enforcement of the fundamental rights.

So, a right without a remedy is a worthless declaration. The framers of our constitution adopted the special provisions in article 32 which provide remedies to the violated fundamental rights of a citizen.

Article 32 (1) says: The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

Article 32 (2) says: The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

Why Dr. Ambedkar considered the right to constitutional remedies as “heart and soul of the constitution”?

Because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation.

The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.

What are the writs issued by the court?

The courts can issue various special orders known as writs.

Habeas corpus: This means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.

Mandamus: Issued when the court finds that a particular officeholder is not doing legal duty and thereby is infringing on the right of an individual.

Prohibition: Issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.

Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an officeholder.

Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.

ARMED FORCES AND FUNDAMENTAL RIGHTS

Article 33 & 34 empower the Parliament to restrict, modify or abrogate the fundamental rights to the members of armed forces, para-military forces, police forces, members of intelligence agencies or similar services.

This is required to make the proper discharge of their duties which are sensitive and urgent in nature. This power is available only with parliament and not state legislatures. Further, such an act cannot be challenged in a court on ground of its being violative of fundamental rights.

Further, court-martial (tribunals under the military law) have been exempted from the writ jurisdiction of the Supreme Court and the high courts under Article 33.

Using these powers, the parliament enacted various laws such as Army Act (1950), Navy Act (1950), Air Force Act (1950), Police Forces (Restriction of Rights) Act, 1966 etc.

Parliament has also the power to indemnify any person or the acts done by such person in the service of the State if such acts are done by him during the enforcement of martial law in any area within the territory of India.

Martial Law and Fundamental Rights

Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India.

It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force.

The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.

The expression ‘martial law’ has not been defined anywhere in the Constitution.

The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

EFFECTING CERTAIN FUNDAMENTAL RIGHTS

Article 35 lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures.

This provision ensures that there is uniformity throughout India with regard to the nature of those fundamental rights and punishment for their infringement.

The FRs enshrined in Part III of the Constitution have met with a wide range and varied criticism.

Excessive Limitations

They are subjected to innumerable exceptions, restrictions, qualifications, and explanations. Hence, the critics remarked that the Constitution grants Fundamental Rights with one hand and takes them away with the other.

No Social and Economic Rights

The list is not comprehensive as it mainly consists of political rights. It makes no provision for important social and economic rights like the right to social security, right to work, right to employment, right to rest and leisure, and so on.

No Clarity

It is alleged that the Constitution was made by the lawyers for the lawyers. Sir Ivor Jennings called the Constitution of India a ‘paradise for lawyers’. The various phrases and words used in the chapter like ‘public order’, ‘minorities’, ‘reasonable restriction’, ‘public interest’, and so on are not clearly defined.

No Permanency

They are not sacrosanct or immutable as the Parliament can curtail or abolish them, as for example, the abolition of the fundamental right to property in 1978. Hence, they can become a play tool in the hands of politicians having majority support in the Parliament.

The judicially innovated ‘doctrine of basic structure’ is the only limitation on the authority of Parliament to curtail or abolish the fundamental right.

Suspension during Emergency

The suspension of their enforcement during the operation of National Emergency (except Articles 20 and 21) is another blot on the efficacy of these rights.

Expensive Remedy

The judicial process is too expensive and hinders the common man from getting his rights enforced through the courts. Hence, the critics say that the rights benefit mainly from the rich section of the Indian Society.

Preventive Detention

No democratic country in the world has made preventive detention an integral part of their Constitution as has been made in India. It confers arbitrary powers on the State and negates individual liberty.

No Consistent Philosophy

Sir Ivor Jennings expressed this view when he said that the Fundamental Rights proclaimed by the Indian Constitution are based on no consistent philosophy.25 The critics say that this creates difficulty for the Supreme Court and the high courts in interpreting the fundamental rights.

SIGNIFICANCE OF FUNDAMENTAL RIGHTS

In spite of the above criticism and shortcomings, the Fundamental Rights are significant in the following respects:

  1. They constitute the bedrock of the democratic system in the country.
  2. They provide necessary conditions for the material and moral protection of man.
  3. They serve as a formidable bulwark of individual liberty.
  4. They facilitate the establishment of rule of law in the country.
  5. They protect the interests of minorities and weaker sections of society.
  6. They strengthen the secular fabric of the Indian State.
  7. They check the absoluteness of the authority of the government.
  8. They lay down the foundation stone of social equality and social justice.
  9. They ensure the dignity and respect of individuals.
  10. They facilitate the participation of people in the political and administrative process.

Questions

Q. What do you understand by the concept of “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss. (2014)

Q. Does the right to a clean environment entail legal regulations on burning crackers during Diwali? Discuss in the light of Article 21 of the Indian Constitution and Judgment(s) of the Apex Court in this regard. (2013)

Q. Examine the scope of Fundamental Rights in the light of the latest judgment of the Supreme Court on the Right to Privacy. (2017)

Q. Consider the following statement regarding Fundamental Rights.

  1. Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA.
  2. Fundamental Rights are named so because they are guaranteed and protected by the Parliament, the supreme law-making body in India.

Which of the above statements is/are correct?

a) 1 only
b) 2 only
c) Both 1 and 2
d) Neither 1 nor 2

Solution: a)

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.

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