Fundamental Rights in Indian constitution
Fundamental Rights in Indian constitution
- We often talk about rights, but do you know what does the term ‘rights’ mean?
- Rights are rules of interaction between people.
- They place constraints and obligations upon the actions of the state and individuals or groups.
- For example, if one has a right to life, this means that others do not have the liberty to kill him or her.
- Rights are defined as claims of an individual that are essential for the development of his or her own self and that are recognized by society or State.
- These are legal, social, or ethical principles of freedom or entitlement and are the fundamental normative rules about what is allowed to people or owed to people, according to some legal system, social convention, or ethical theory.
- Rights are often considered fundamental to civilization, being regarded as established pillars of society and culture.
- so we can say that fundamental rights are main pillar of any society .
Fundamental Rights in Indian constitution -Part III of Indian constitution
- Part three of indian constitution contain a long list of Fundamental Rights
- The most striking difference between Government of india act -1935 and present constitution is Fundamental rights.
- this part of indian constitution is described as the Magna carta.
- Part III of indian constitution is called as the cornerstone of indian constitution .
- Right to Equality Art-14-18
- Right to Freedom Art-19 -22
- Right Against Exploitation ( Art 23 and Art 24)
- Right to Freedom of Religion Art -25 -28
- Cultural and Educational Rights Art- 29 & 30
- Right to constitutional Remedies Art 32
- In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
Article 13 – Laws inconsistent with or in derogation of the fundamental rights.-
- (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]
Article -14-Right to Equality
- The state shall not deny to any person equality before law or equal protection of the laws within the territory of india.
- this concept is borrowed from Irish Constitution.
- Equality before law is a Negative concept.
- Means no person is above the law no matter what is his/her social status, every person is subject to jurisdiction of courts.
- Equal protection of law is a positive concept ,this concept is borrowed from USA
- it means all persons who are in same condition or circumstances should be treated alike.
- according to this article there can be discrimination between groups but not within group.
- because india is a welfare state and if state want then it can discriminate and can give some privileges to those who are less privileged.
Article -15-Prohibition of Discrimination on Grounds of Religion ,Race,Caste ,sex or Place of Birth
- article 15 provides Prohibition of Discrimination on Grounds of Religion ,Race,Caste ,sex or Place of Birth etc.
- The Guarantee under article 15 are available only to citizens not like article 14 in which guarantee available to citizen and non citizens.
- The third clause empowers the state to make some special provision to protect women and childrens.
- The fourth clause added after amendment of indian constitution enable state to make some important provisions to protection of backward class interest.
Article -16. Equality of opportunity in Matters of Public Employment
- Equality of opportunity in matter of Public employment
- No citizen shall on grounds only on religion race ,caste ,sex,descent,place of birth or residence be ineligible for or discriminated against in respect any employment or office under the state.
- but state can specify the qualification for any job .there is no other ground for non-eligibility.
- religion can be a ground for discrimination in special cases.There are some religious institution taken over by state so the religious posts are reserved for the people of same religious denomination.
- special favours can be given to backward classes which are not adequately represented.
Article -17-Abolition of untouchability
- Untouchability is abolished and its practice in any form is forbidden.
- constitution not defined any punishment for untouchability offence.
- the parliament enacted the Untouchability offences act,1955,which prescribe punishment for practicing Untouchability
- This act was amended in 1976 to make this law more stringent
Article-18-Abolition of Titles
- no title not being a Military or academic distinction shall be conferred by the state
- No citizen of india shall accept any title from any foreign country
- it also prohibits any foreign nationals to accept any title from any foreign country without the consent of President
- article 18 does not prescribe any punishment for offence
- parliament is free to make any law for punishment.
- No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.
Right to freedom Articles from (19 to 22)
- Personal liberty is most important part of Fundamental Rights
- Articles from 19 to 22 are Backbone of indian constitution .
Article -19-Protection of certain rights regarding freedom of speech, etc.
- Article 19 of indian constitution gives guarantee to indian citizens for SIx Freedoms
- Six Freedoms are-
- 1- Freedom of speech and expressions
- 2-to assemble peacefully and without arms
- 3-to form associations or unions
- 4-to move freely throughout the indian territory
- 5-to reside and settle any part of india
- 6-to practise any profession
- The six freedoms prescribe in indian constitution article 19 are not absolute
- Right to property was earlier a fundamental Right but after 44th Amendment in 1978 it was transferred to article 300A
- The right to form any association or union does not give right to strike
Article -20 -protection in respect of conviction for offences
- No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
- No person shall be prosecuted and punished for the same offence more than once.
- No person accused of any offence shall be compelled to be a witness against himself.
- the cardinal principle of criminal law is an accused should be presumed to be innocent till the contrary is proved
- it is the duty of the prosecution to prove the offence
Article -21-Protection of life and personal Liberty
- No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Article 21 has become foundation stone of part III of indian constitution
- some of the Inferred Rights are –
- Right to health of the worker
- Right to shelter
- Right Against cruel punishment
- Right to live with Dignity
- Right to Privacy
- Right to speedy trial
- This article not only stand for Right to life and liberty but also for the right to dignity and all other attributes of human personality that are essential for the full development of a persons.
- Right to primary Education is a fundamental right under Article 21.
- Article 21 includes the Principle of Natural justice
- supreme court declared that even non-citizens are entitled for right to life.
- Under article 21 use of third degree is a violative method.
Article -22- Protection against arrest and detention in certain cases
- Protection against arrest and detention in certain cases
- the authority cannot arrest or detain a person without properly informing him/her of the grounds for such arrest and detention.
- detained or arrest person must be produced before the nearest magistrate within 24 hours of arrest.
- the period of detention can not extended beyond what is authorised by the Magistrate
Article -23 and 24 -Right against Exploitation
Article 23- Prohibition of Traffic in human Beings and forced labour
- Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
- Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
- one shall not be forced for labour without his/her willing if someone found it will be punitive offence
- if remuneration is less than minimum wages it amounts to be forced labour under article 23.
Article-24-Prohibition of employment of children in factories etc
- No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
- in M C Mehta vs State of tamilnadu case the supreme court held that the state authorities should protect economic ,social ,and humanitarian rights of children ,working illegally in public and private sector
Article 25 to 28 -Right to Freedom of religion
Article -25-Freedom of conscience and free profession, practice and propagation of religion.
- Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
- Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-
- regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
- providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
- Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Article-26-Freedom to manage Religious Affairs
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-
- to establish and maintain institutions for religious and charitable purposes.
- to manage its own affairs in matters of religion
- to own and acquire movable and immovable property; and
- to administer such property in accordance with law.
Restriction on Freedom of Religion-
- one can not practice untouchability on name of religion .
- there can not be indescent dressing.
- one can not forcefully convert another person.
- Right to wear kirpan is permissible in sikh religion but not in any numbers or any size of kirpan are permitted.
- social evil can not practice on Name of religion
Article-27- Freedom as to payment of taxes for promotion of any particular religion.-
- No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
- if the government has done any service for a particular religion than government can charge any free from its devotees.
Article- 28-Freedom as to attendance at religious instruction or religious worship in certain educational institutions
- No religious instruction shall be provided in any educational institution wholly maintained out of State funds
- Article 28 divides educational institutions into four categories
- 1- wholly maintained by state
- 2-recognised by state
- 3-Receive aids out of the state Funds
- 4-Administered by the State but established under a religious endowment.
- No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
Article-29 and 30 -cultural and Educational Rights
Article-29-Protection of interests of minorities
- Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same
Article-30-Right of minorities to establish and administer educational institutions.
- All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
- it provides to religious ,educational and cultural institutions ,the right to own , possess and dispose immoveable property.
- the state shall give compensation in case of acquisition of such property.
- the state can regulate working of such institutions.
- the supreme court observed that right to administration is not the right to maladministration.
Article -32- Constitutional Remedies
- Article 32 provides institutional framework for the enforcement of the fundamental rights by supreme court.
- Dr bhimrao Ambedkar called this article the “Fundamental of all fundamental rights” and Heart and Soul of indian constitution.
- to enforce the Fundamental rights indian supreme court is Empowered under this Article to issue various writs.
- The concept of issuing writs is taken from UK
- The five Forms of Writs are as Follows-
Habeas Corpus-it literally means have a Body –to be produced before the court
- this kind of writ is issued to protect personal liberty of an individual against the arbitrary action of both the state and private individuals.
- the aggrieved person even can claim for compensation against such actions.
- it literally means “command’
- this kind of writ is issued against a public authority or an officer and inferior courts for purpose of enforcing legal rights only.
- this writs can not be issued against the president of india and The Governor .
- private rights cannot be enforced by the writ of the Mandamus.
- this kind of writ is issued by the higher courts to lower courts or the quasi judicial bodies when the latter exceed their judicial Authority.
- the objective of this writ is keep the inferior courts or quasi judicial bodies within the limit of their respective jurisdiction.
- the difference between mandamus and prohibition is former can be issued against judicial as well as administrative authorities ,the latter one is issued against the judicial or quasi judicial bodies.
- it is similar to prohibition
- this writ is issued to quash the order of lower court or the decision of a tribunal in excess of its jurisdiction.
- the purpose of this writ is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction it does not possess.
- it literally means what is your Authority.
- this kind of writ is issued to ensure that the person holding a public office is qualified to hold the office
Note- No time limit is prescribed for issuing the writs within the constitution and has been left to the court to decide