Fundamental Rights in India

Fundamental Rights in India

Fundamental Rights in India

Six Fundamental Rights Provided by the Constitution:

1. Right to equality (Article 14-18)

2. Right to liberty (particular freedoms) (Article 19-22)

3. Right against exploitation (Article 23-24)

4. Right to freedom of religion (Article 25-28)

5. Cultural and educational rights (Article 29-30)

6. Right to constitutional remedies (Article 32-35)

Right to Property

The right to acquire, hold, and dispose of the property has ceased to be a fundamental right, but it continues to be a legal or constitutional right. [Art. 300A]

Exceptions to the Provision of Equality Before Law

• The President or the Governor of a State is not answerable to any Court for the exercise and performance of the powers and duties of his office.

• No criminal proceeding can be instituted or continued against the President or a Governor in any Court during his term of office.

• No civil proceeding in which relief is claimed against the President or the Governor of a State can be instituted during his term of office in any Court in respect of any act done by him in his personal capacity, without a prior notice of two months.

• The above immunities do not bar:

  • (a) Impeachment proceedings against the President

  • (b) Suits or other appropriate proceedings against the Government of India or the Government of a State.

• Exceptions acknowledged by the comity of nations in every civilized country, in favour of foreign Sovereigns and ambassadors.

• The guarantee of 'equal protection' is a guarantee of equal treatment of persons in 'equal circumstances', permitting differentiation in different circumstances.

Article 15

• Article 15 of the Constitution states that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth, or any of them.

• No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition about access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

• Nothing in this article shall prevent the State from making any special provisions for women, children, or any socially and educationally backward classes.

Article 16

• Article 16 guarantees Equality of opportunity in matters of public employment. nt

• There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

• No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, or any of them, be ineligible for any employment under the State.

The Mandal Commission Case

A nine-judge Bench of the Supreme Court has laid down in India Sawhney's Case (popularly known as the Mandal Commission Case) regarding reservation in Government employment, that:

• Under Article 16(4), provisions can be made in favour of the backward classes in the matter of employment by Executive orders also.

• The backward class of citizens is not defined in the Constitution. A caste may also constitute a class.

• The backwardness contemplated by Art 16(4) is mainly social. It need not be both social and educational.

• Income or the extent of property can be taken as a measure of social advancement, and on that basis, the ‘Creamy layer’ of a given caste can be excluded.

• The reservations contemplated in Art. 16(4) should not exceed 50%.

• Reservation of posts under Art. 16(4) is confined to the initial appointment only and cannot extend to providing a reservation in promotion.

Note: Mandal Commission was set up in 1979 under the Chairmanship of Bindeshwari Prasad (B.P.) Mandal, M.P. (Former Chief Minister of Bihar).

• The 77th Amendment has provided for continued reservation in promotion for the S.C. and S.T.

• Identification of backward classes is subject to judicial review.

Article 17

• It ensures the Abolition of Untouchability.

• The word 'untouchability' has not been defined either in the Constitution or in the relevant Act of Parliament.

• It has been assumed that the word has a well-known connotation.

Article 18

• It ensures the Abolition of titles.

• It prevents the State from conferring any title.

• This ban is only against the State and not against other public institutions, such as Universities.

• The State is not debarred from awarding military or academic distinctions, even though they may be used as titles.

• The State is not prevented from conferring any distinction or award which cannot be used as a title. Bharat Ratna or Padma Vibhushan cannot be used by the recipient as a title and therefore does not come within the Constitutional prohibition.

Article 19

Article 19 provides the six freedoms of:

• Speech and expression

• Assemble peacefully and without arms

• Form associations or unions

• Move freely throughout the territory of India

• Reside and settle in any part of the territory of India

• Practise any profession, or to carry on any occupation, trade, or business

Restrictions on Freedom

• State can impose restrictions on freedom of speech in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.

• Restrictions can be imposed on the right to form associations in the interests of the sovereignty and integrity of India, public order, or morality. Restrictions can also be imposed on freedom of movement and residence and settlement in the interests of the general public or for the protection of Scheduled Tribes.

• The state can prescribe the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade, or business.

• The state can exclude any citizen from a business or industry run by the Government or a body of the Government.

• There is no specific provision guaranteeing freedom of the press because it is included in the wider freedom of expression under Article. 19.

Article 20

• Article 20 guarantees certain protection in respect of conviction for offences.

It prohibits:

• Retrospective criminal legislation, commonly known as ex post facto legislation.

• Double jeopardy or punishment for the same offence more than once.

• Compulsion to give self-incriminating evidence.

Article 21

Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

• Under the 'Due Process' Clause of the American Constitution, the Court has assumed the power of declaring unconstitutional any law that deprives a person of his liberty without reasonableness and fairness.

• In England, courts have no power to invalidate a law made by Parliament.

• In the case of Gopalan, the Supreme Court held that our Constitution had embodied the English concept.

• In Maneka's case, the Supreme Court held that a law made by the State which seeks to deprive a person of his personal liberty must prescribe a procedure for such deprivation which must not be arbitrary, unfair, or unreasonable. It follows that such a law shall be invalid if it violates the principle of natural justice.

Article 21(A) makes the right to education for children aged 6 to 14 years a fundamental right. {Ref.: 86th Amendment Act, 2002}

Article 22

• It says that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest.

• No arrested person can be denied the right to consult, and to be defended by a legal practitioner of his choice.

• Every person who is arrested and detained in custody is to be produced before the nearest magistrate within a period of twenty-four hours of arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrat,e and no such person can be detained in custody beyond that period without the authority of a magistrate.

• The above safeguard is not available to an enemy alien or a person arrested or detained under a law providing for preventive detention.

• The Constitution authorises the Legislature to make laws for preventive detention for the security of the state, the maintenance of public order, or the maintenance of supplies and services essential to the community, or for reasons connected with Defence and Foreign Affairs. [Ref.: Art 22]

Article 23

Article 23 provides the Right against Exploitation in the following respects:

• Traffic in human beings and beggars, and other similar forms of forced labour are prohibited.

• The State can impose compulsory service for public purposes, and in imposing such service, the State cannot make any discrimination on grounds only of religion, race, caste, or class, or any of them.

Article 24

• Special provision for the protection of children is made in the article. 2,4, which provides that no child below the age of fourteen years can be employed to work in any factory or mine or engaged in any other hazardous employment.

Article 25

It provides the Right to Freedom of Religion:

• Provides freedom of conscience and free profession, practice, and propagation of religion subject to public order, morality, and health.

• Under Art. 25 State can regulate religious activities, provide for social reforms, and throw open Hindu religious institutions of public character to all sections of Hindus.

Article 26

Article 26 guarantees the following rights to all religious groups, subject to public order, morality, and health:

• Establish and maintain an institution for religious and charitable purposes

• Manage its own affairs in matters of religion

• Own and acquire movable and immovable property

• Administer such property in accordance with the law

Article 27

The State cannot compel any citizen to pay any taxes for the promotion or maintenance of any particular religion or religious institution. [Ref.: Art. 27]

• No religious instruction can be provided in any educational institution wholly maintained out of State funds. [Ref.: Art. 29]

Article 29

• Where a religious community is in the minority, the Constitution enables it to preserve its culture and religious interests by providing that the State shall not impose upon it any culture other than the community's own culture. [Ref: Art. 29(1)]

Article 30

• Such a community shall have the right to establish and administer educational institutions of its choice, and the State shall not, in granting aid to educational institutions, discriminate against such an educational institution maintained by a minority community on the ground that it is under the management of a religious community. [Ref.: Art. 30]

• Full compensation has to be paid if the State seeks to acquire the property of a minority educational institution. [Ref.: Art. 30 (1A)]

Right to Constitutional Remedies

• The Fundamental Rights are guaranteed by the Constitution not only against the action of the Executive but also against that of the Legislature.

• Right to constitutional remedy, which was termed 'soul of the constitution' by Dr. B.R. Ambedkar, has been guaranteed by Art. 32 of the Constitution.

Final Thoughts

The Fundamental Rights in India form the core of the Constitution, ensuring equality, liberty, and justice for every citizen. They protect individuals from arbitrary actions by the State and guarantee freedom of speech, religion, and expression. Articles 14 to 32 cover a wide spectrum, from right to equality, protection against exploitation, and freedom of religion to cultural and educational rights.

The Right to Constitutional Remedies empowers citizens to challenge violations of these rights, making them the safeguard of democracy. These rights are not only guarantees against the Executive but also against the Legislature, ensuring checks and balances.

Through these rights, India upholds the principles of justice, liberty, equality, and fraternity, allowing citizens to live with dignity and freedom. Awareness and understanding of these rights are essential for participation in a democratic society and the protection of individual liberties.