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Fundamental Rights in India

2007 Schools Wikipedia Selection. Related subjects: Politics and government

   The Fundamental Rights in India enshrined in the Part III of the
   Constitution of India guarantee civil liberties such that all Indians
   can lead their lives in peace and harmony as citizens of India. These
   include individual rights common to most liberal democracies, such as
   equality before law, freedom of speech and expression, freedom of
   association and peaceful assembly, freedom to practice religion, and
   the right to constitutional remedies for the protection of civil rights
   by means of writs such as habeas corpus. Violations of these rights
   result in punishments as prescribed in the Indian Penal Code, subject
   to discretion of the judiciary. The Fundamental Rights are defined as
   basic human freedoms which every Indian citizen has the right to enjoy
   for a proper and harmonious development of personality. These rights
   universally apply to all citizens, irrespective of race, place of
   birth, religion, caste, creed, colour or sex. They are enforceable by
   the courts, subject to certain restrictions. The Rights have their
   origins in many sources, including England's Bill of Rights, the United
   States Bill of Rights and France's Declaration of the Rights of Man.

   The six fundamental rights are:
    1. Right to equality
    2. Right to freedom
    3. Right against exploitation
    4. Right to freedom of religion
    5. Cultural and educational rights
    6. Right to constitutional remedies

   Rights literally mean those freedoms which are essential for personal
   good as well as the good of the community. The rights guaranteed under
   the Constitution of India are fundamental as they have been
   incorporated into the Fundamental Law of the Land and are enforceable
   in a court of law. However, this does not mean that they are absolute
   or that they are immune from Constitutional amendment.

   Fundamental rights for Indians have also been aimed at overturning the
   inequalities of pre-independence social practices. Specifically, they
   have also been used to abolish untouchability and hence prohibit
   discrimination on the grounds of religion, race, caste, sex, or place
   of birth. They also forbid trafficking of human beings and forced
   labour. They also protect cultural and educational rights of ethnic and
   religious minorities by allowing them to preserve their languages and
   also establish and administer their own education institutions.

Genesis

   The development of constitutionally guaranteed fundamental human rights
   in India was inspired by historical examples such as England's Bill of
   Rights (1689), the United States Bill of Rights (approved on September
   17, 1787, final ratification on December 15, 1791) and France's
   Declaration of the Rights of Man (created during the revolution of
   1789, and ratified on August 26, 1789). Under the educational system of
   British Raj, students were exposed to ideas of democracy, human rights
   and European political history. The Indian student community in England
   was further inspired by the workings of parliamentary democracy and
   British political parties.

   In 1919, the Rowlatt Acts gave extensive powers to the British
   government and police, and allowed indefinite arrest and detention of
   individuals, warrant-less searches and seizures, restrictions on public
   gatherings, and intensive censorship of media and publications. The
   public opposition to this act eventually led to mass campaigns of
   non-violent civil disobedience throughout the country demanding
   guaranteed civil freedoms, and limitations on government power.
   Indians, who were seeking independence and their own government, were
   particularly influenced by the independence of Ireland and the
   development of the Irish constitution. Also, the directive principles
   of state policy in Irish constitution were looked upon by the people of
   India as an inspiration for the independent India's government to
   comprehensively tackle complex social and economic challenges across a
   vast, diverse nation and population.

   In 1928, the Nehru Commission composing of representatives of Indian
   political parties proposed constitutional reforms for India that apart
   from calling for dominion status for India and elections under
   universal suffrage, would guarantee rights deemed fundamental,
   representation for religious and ethnic minorities, and limit the
   powers of the government. In 1931, the Indian National Congress (the
   largest Indian political party of the time) adopted resolutions
   committing itself to the defense of fundamental civil rights, as well
   as socio-economic rights such as the minimum wage and the abolition of
   untouchability and serfdom. Committing themselves to socialism in 1936,
   the Congress leaders took examples from the constitution of the
   erstwhile USSR, which inspired the fundamental duties of citizens as a
   means of collective patriotic responsibility for national interests and
   challenges.
   The chairman of the constitution drafting committee — B. R. Ambedkar
   Enlarge
   The chairman of the constitution drafting committee — B. R. Ambedkar

   When India obtained independence on 15 August 1947, the task of
   developing a constitution for the nation was undertaken by the
   Constituent Assembly of India, composing of elected representatives
   under the presidency of Rajendra Prasad. While members of Congress
   composed of a large majority, Congress leaders appointed persons from
   diverse political backgrounds to responsibilities of developing the
   constitution and national laws. Notably, Bhimrao Ramji Ambedkar became
   the chairperson of the drafting committee, while Jawaharlal Nehru and
   Sardar Vallabhbhai Patel became chairpersons of committees and
   sub-committees responsible for different subjects. A notable
   development during that period having significant effect on the Indian
   constitution took place on 10 December 1948 when the United Nations
   General Assembly adopted the Universal Declaration of Human Rights and
   called upon all member states to adopt these rights in their respective
   constitutions.

   The Fundamental Rights were included in the Ist Draft Constitution
   (February 1948), the IInd Draft Constitution ( 17 October 1948) and the
   IIIrd and final Draft Constitution ( 26 November 1949), being prepared
   by the Drafting Committee.

Significance and characteristics

   The Fundamental Rights were included in the constitution because they
   were considered essential for the development of the personality of
   every individual and to preserve human dignity. The writers of the
   constitution regarded democracy of no avail if civil liberties, like
   freedom of speech and religion were not recognized and protected by the
   State. According to them, "democracy" is, in essence, a government by
   opinion and therefore, the means of formulating public opinion should
   be secured to the people of a democratic nation. For this purpose, the
   constitution guaranteed to all the citizens of India the freedom of
   speech and expression and various other freedoms in the form of the
   Fundamental Rights.

                                                       Theories of rights
                                                          Animal rights
                                                          Civil rights
                                                        Collective rights
                                                          Group rights
                                                          Human rights
                                                       Inalienable rights
                                                        Individual rights
                                                          Legal rights
                                                         Natural rights
                                                       Negative & positive
                                                          Social rights
                                                       "Three generations"
                                                         Women's rights
                                                          Men's rights
                                                         Workers' rights

   All people, irrespective of race, religion, caste or sex, have been
   given the right to move the Supreme Court and the High Courts for the
   enforcement of their Fundamental Rights. It is not necessary that the
   aggrieved party has to be the one to do so. Poverty stricken people may
   not have the means to do so and therefore, in the public interest,
   anyone can commence litigation in the court on their behalf. This is
   known as " Public interest litigation". In some cases, High Court
   judges have acted on their own on the basis of newspaper reports.

   These Fundamental Rights help not only in protection but also the
   prevention of gross violations of human rights. They emphasize on the
   fundamental unity of India by guaranteeing to all citizens the access
   and use of the same facilities, irrespective of background. Some
   Fundamental Rights apply for persons of any nationality whereas others
   are available only to the citizens of India. The right to life and
   personal liberty is available to all people and so is the right to
   freedom of religion. On the other hand, freedoms of speech and
   expression and freedom to reside and settle in any part of the country
   are reserved to citizens alone, including non-resident Indian citizens.
   The right to equality in matters of public employment cannot be
   conferred to overseas citizens of India.

   Fundamental rights primarily protect individuals from any arbitrary
   State actions, but some rights are enforceable against individuals. For
   instance, the Constitution abolishes untouchability and also prohibits
   begar. These provisions act as a check both on State action as well as
   the action of private individuals. However, these rights are not
   absolute or uncontrolled and are subject to reasonable restrictions as
   necessary for the protection of general welfare. They can also be
   selectively curtailed. The Supreme Court has ruled that all provisions
   of the Constitution, including Fundamental Rights can be amended.
   However, the Parliament cannot alter the basic structure of the
   constitution. Features such as secularism and democracy fall under this
   category. Since the Fundamental Rights can only be altered by a
   constitutional amendment, their inclusion is a check not only on the
   executive branch, but also on the Parliament and state legislatures.

   A state of national emergency has an adverse effect on these rights.
   Under such a state, the rights conferred by Article 19 (freedoms of
   speech, assembly and movement, etc.) remain suspended. Hence, in such a
   situation, the legislature may make laws which go against the rights
   given in Article 19. Also, the President may by order suspend the right
   to move court for the enforcement of other rights as well.

Right to equality

   Right to equality is an important right provided for in Articles 14,
   15, 16, 17 and 18 of the constitution. It is the principal foundation
   of all other rights and liberties, and guarantees the following:
     * Equality before law: Article 14 of the constitution guarantees that
       all citizens shall be equally protected by the laws of the country.
       It means that the State cannot discriminate against a citizen on
       the basis of caste, creed, colour, sex, religion or place of birth.
       According to the Electricity Act of 26 January 2003 the Parliament
       has the power to create special courts for the speedy trial of
       offences committed by persons holding high offices. Creation of
       special courts is not a violation of this right.

     * Social equality and equal access to public areas: Article 15 of the
       constitution states that no person shall be discriminated on the
       basis of caste, colour, language etc. Every person shall have equal
       access to public places like public parks, museums, wells, bathing
       ghats and temples etc. However, the State may make any special
       provision for women and children. Special provisions may be made
       for the advancements of any socially or educationally backward
       class or scheduled castes or scheduled tribes.

     * Equality in matters of public employment: Article 16 of the
       constitution lays down that the State cannot discriminate against
       anyone in the matters of employment. All citizens can apply for
       government jobs. There are some exceptions. The Parliament may
       enact a law stating that certain jobs can only be filled by
       applicants who are domiciled in the area. This may be meant for
       posts that require knowledge of the locality and language of the
       area. The State may also reserve posts for members of backward
       classes, scheduled castes or scheduled tribes which are not
       adequately represented in the services under the State to bring up
       the weaker sections of the society. Also, there a law may be passed
       which requires that the holder of an office of any religious
       institution shall also be a person professing that particular
       religion. According to the Citizenship (Amendment) Bill, 2003, this
       right shall not be conferred to Overseas citizens of India.

     * Abolition of untouchability: Article 17 of the constitution
       abolishes the practice of untouchability. Practice of
       untouchability is an offense and anyone doing so is punishable by
       law. The Untouchability Offences Act of 1955 (renamed to Protection
       of Civil Rights Act in 1976) provided penalties for preventing a
       person from entering a place of worship or from taking water from a
       tank or well.

     * Abolition of Titles: Article 18 of the constitution prohibits the
       State from conferring any titles. Citizens of India cannot accept
       titles from a foreign State. The British government had created an
       aristocratic class known as Rai Bahadurs and Khan Bahadurs in India
       — these titles were also abolished. However, Military and academic
       distinctions can be conferred on the citizens of India. The awards
       of Bharat Ratna and Padma Vibhushan cannot be used by the recipient
       as a title and do not, accordingly, come within the constitutional
       prohibition". The Supreme Court, on 15 December 1995, upheld the
       validity of such awards.

Right to freedom

   The Constitution of India contains the right to freedom, given in
   articles 19, 20, 21 and 22, with the view of guaranteeing individual
   rights that were considered vital by the framers of the constitution.
   The right to freedom in Article 19 guarantees the following six
   freedoms:
     * Freedom of speech and expression, which enable an individual to
       participate in public activities. The phrase, " freedom of press"
       has not been used in Article 19, but freedom of expression includes
       freedom of press. Reasonable restrictions can be imposed in the
       interest of public order, security of State, decency or morality.

     * Freedom to assemble peacefully without arms, on which the state can
       impose reasonable restrictions in the interest of public order and
       the sovereignty and integrity of India.

     * Freedom to form associations or unions on which the state can
       impose reasonable restrictions on this freedom in the interest of
       public order, morality and the sovereignty and integrity of India.

     * Freedom to move freely throughout the territory of India though
       reasonable restrictions can be imposed on this right in the
       interest of the general public, for example, restrictions may be
       imposed on movement and travelling, so as to control epidemics.

     * Freedom to reside and settle in any part of the territory of India
       which is also subject to reasonable restrictions by the State in
       the interest of the general public or for the protection of the
       scheduled tribes because certain safeguards as are envisaged here
       seem to be justified to protect indigenous and tribal peoples from
       exploitation and coercion.

     * Freedom to practice any profession or to carry on any occupation,
       trade or business on which the state may impose reasonable
       restrictions in the interest of the general public. Thus, there is
       no right to carry on a business which is dangerous or immoral.
       Also, professional or technical qualifications may be prescribed
       for practicing any profession or carrying on any trade.

   The constitution also guarantees the right to life and personal
   liberty, which in turn cites specific provisions in which these rights
   are applied and enforced:
     * Protection with respect to conviction for offences is guaranteed in
       the right to life and personal liberty. According to Article 20, no
       one can be awarded punishment which is more than what the law of
       the land prescribes at that time. This legal axiom is based on the
       principle that no criminal law can be made retrospective, that is,
       for an act to become an offence, the essential condition is that it
       should have been an offence legally at the time of committing it.
       Moreover, no person accused of any offence shall be compelled to be
       a witness against himself. "Compulsion" in this article refers to
       what in law is called " Duress" (injury, beating or unlawful
       imprisonment to make a person do something that he does not want to
       do). This article is known as a safeguard against self
       incrimination. The other principle enshrined in this article is
       known as the principle of double jeopardy, that is, no person can
       be convicted twice for the same offence, which has been derived
       from Anglo Saxon law. This principle was first established in the
       Magna Carta.

     * Protection of life and personal liberty is also stated under right
       to life and personal liberty. Article 21 declares that no citizen
       can be denied his life and liberty except by law. This means that a
       person's life and personal liberty can only be disputed if that
       person has committed a crime. However, the right to life does not
       include the right to die, and hence, suicide or an attempt thereof,
       is an offence. "Personal liberty" includes all the freedoms which
       are not included in Article 19 (that is, the six freedoms). The
       right to travel abroad is also covered under "personal liberty" in
       Article 21.

     * Rights of a person arrested under ordinary circumstances is laid
       down in the right to life and personal liberty. No one can be
       arrested without being told the grounds for his arrest. If arrested
       the person has the right to defend himself by a lawyer of his
       choice. Also an arrested citizen has to be brought before the
       nearest magistrate within 24 hours. The rights of a person arrested
       under ordinary circumstances are not available to an enemy alien.
       They are also not available to persons detained under the
       Preventive Detention Act. Under preventive detention, the
       government can imprison a person for a maximum of three months. It
       means that if the government feels that a person being at liberty
       can be a threat to the law and order or to the unity and integrity
       of the nation, it can detain or arrest that person to prevent him
       from doing this possible harm. After three months such a case is
       brought before an advisory board for review.

     * Right to education by the 86th Constitutional amendment has been
       made one of the Fundamental Rights under the right to life and
       personal liberty.

   The constitution also imposes restrictions on these rights. The
   government restricts these freedoms in the interest of the
   independence, sovereignty and integrity of India. In the interest of
   morality and public order, the government can also impose restrictions.
   However, the right to life and personal liberty cannot be suspended.
   The six freedoms are also automatically suspended or have restrictions
   imposed on them during a state of emergency.

Right against exploitation

   Child labour and Begar is prohibited under Right against exploitation.
   Enlarge
   Child labour and Begar is prohibited under Right against exploitation.

   The right against exploitation, given in Articles 23 and 24, provides
   for two provisions, namely the abolition of trafficking in human beings
   and Begar, and abolition of employment of children below the age of 14
   years in dangerous jobs like factories and mines. Child labour is
   considered a gross violation of the spirit and provisions of the
   constitution. Begar, practised in the past by landlords, has been
   declared a crime and is punishable by law. Trafficking in humans for
   the purpose of slave trade or prostitution is also prohibited by law.
   An exception is made in employment without payment for compulsory
   services for public purposes. Compulsory military conscription is
   covered by this provision.

Right to freedom of religion

   Right to freedom of religion, covered in Articles 25, 26, 27 and 28,
   provides religious freedom to all citizens of India. The objective of
   this right is to sustain the principle of secularism in India.
   According to the Constitution, all religions are equal before the state
   and no religion shall be given preference over the other. Citizens are
   free to preach, practice and propagate any religion of their choice.
   However, certain practices like wearing and carrying of Kirpans in the
   profession of the Sikh religion, can be restricted in the interest of
   public order, morality and health.

   Religious communities can set up charitable institutions of their own.
   However, activities in such institutions which are not religious are
   performed according to the laws laid down by the government.
   Establshing a charitable institution can also be restricted in the
   interest of public order, morality and health. No person shall be
   compelled to pay taxes for the promotion of a particular religion.A
   State run institution cannot impart education that is pro-religion.
   Also, nothing in this article shall affect the operation of any
   existing law or prevent the State from making any further law
   regulating or restricting any economic, financial, political or other
   secular activity which may be associated with religious practice, or
   providing for social welfare and reform.

Cultural and educational rights

   The Flag of India
   Enlarge
   The Flag of India

   As India is a country of many languages, religions, and cultures, the
   Constitution provides special measures, in Articles 29 and 30, to
   protect the rights of the minorities. Any community which has a
   language and a script of its own has the right to conserve and develop
   them. No citizen can be discriminated against for admission in State or
   State aided institutions.

   All minorities, religious or linguistic, can set up their own
   educational institutions in order to preserve and develop their own
   culture. In granting aid to institutions, the state cannot discriminate
   against any institution on the basis of the fact that it is
   administered by a minority institution. But the right to administer
   does not mean that the State can not interfere in case of
   maladministration. In a precedent-setting judgment in 1980, the Supreme
   Court held that "the state can certainly take regulatory measures to
   promote the efficiency and excellence of educational standards. It can
   also issue guidelines for ensuring the security of the services of the
   teachers or other employees of the institution. In another landmark
   judgement delivered on 31 October 2002, the Supreme Court ruled that in
   case of aided minority institutions offering professional courses,
   admission could only be through a common entrance test conducted by
   State or a university. Even an unaided minority institution ought not
   to ignore the merit of the students for admission.

Right to constitutional remedies

   Right to constitutional remedies empowers the citizens to move a court
   of law in case of any denial of the fundamental rights. For instance,
   in case of imprisonment, the citizen can ask the court to see if it is
   according to the provisions of the law of the country. If the court
   finds that it is not, the person will have to be freed. This procedure
   of asking the courts to preserve or safeguard the citizens' fundamental
   rights can be done in various ways. The courts can issue various kinds
   of writs. These writs are habeas corpus, mandamus, prohibition, quo
   warranto and certiorari. When a national or state emergency is
   declared, this right is suspended by the central government.

Right to property — a former fundamental right

   The Constitution originally provided for the right to property under
   Articles 19 and 31. Article 19 guaranteed to all citizens the right to
   acquire, hold and dispose off property. Article 31 provided that "no
   person shall be deprived of his property save by authority of law." It
   also provided that compensation would be paid to a person whose
   property has been take for public purposes.

   The provisions relating to the right to property were changed a number
   of times. The 44th amendment act of 1978 deleted the right to property
   from the list of Fundamental Rights. A new article, Article 300-A, was
   added to the constitution which provided that "no person shall be
   deprived of his property save by authority of law". Thus if a
   legislature makes a law depriving a person of his property, there would
   be no obligation on the part of the State to pay anything as
   compensation. The aggrieved person shall have no right to move the
   court under Article 32. Thus, the right to property is no longer a
   fundamental right, though it is still a constitutional right. If the
   government appears to have acted unfairly, the action can be challenged
   in a court of law by citizens.

Critical analysis

   The Fundamental Rights have been criticised for many reasons. Political
   groups have demanded that the right to work, the right to economic
   assistance in case of unemployment, old age, and similar rights be
   enshrined as constitutional guarantees to address issues of poverty and
   economic insecurity, though these provisions have been enshrined in the
   directive principles of state policy. The right to freedom and personal
   liberty has a number of limiting clauses, and thus have been criticized
   for failing to check the sanctioning of powers often deemed
   "excessive". There is also the provision of preventive detention and
   suspension of Fundamental Rights in times of Emergency. The provisions
   of acts like MISA ( Maintenance of Internal Security Act) and NSA (
   National Security Act) are a means of countering the fundamental
   rights, because they sanction excessive powers with the aim of fighting
   internal and cross-border terrorism and political violence, without
   safeguards for civil rights. The phrases "security of State", "public
   order" and "morality" are of wide implication. The meaning of phrases
   like "reasonable restrictions" and "the interest of public order" have
   not been explicitly stated in the constitution, and this ambiguity
   leads to unnecessary litigation. The freedom to assemble peacably and
   without arms is exercised, but in some cases, these meetings are broken
   up by the police through the use of non-fatal methods.

   " Freedom of press" has not been included in the right to freedom,
   which is necessary for formulating public opinion and to make freedom
   of expression more legitimate. Employment of child labour in hazardous
   job environments has been reduced, but their employment even in
   non-hazardous jobs, including their prevalent employment as domestic
   help violates the spirit and ideals of the constitution. More than 16.5
   million children are employed and working in India. India was ranked 88
   out of 159 in 2005, according to the degree to which corruption is
   perceived to exist among public officials and politicians worldwide.
   The right to equality in matters regarding public employment shall not
   be conferred to Overseas citizens of India, according to the
   Citizenship (Amendment) Bill, 2003.

Amendments

   Changes in Fundamental Rights require a Constitutional amendment which
   has to be passed by a special majority of both houses of the
   Parliament. This means that an amendment requires the approval of
   two-thirds of the members present and voting. However, the number of
   members voting should not be less than the simple majority of the house
   — whether the Lok Sabha or Rajya Sabha.
     * The right to property was originally included as a fundamental
       right. However, the 44th Amendment passed in 1978, revised the
       status of property rights by stating that "No person shall be
       deprived of his property save by authority of law" to further the
       goals of socialism.
     * The right to education at elementary level has been made one of the
       Fundamental Rights under right to life and personal liberty by the
       86th constitutional amendment of 2002.

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