FUNDAMENTAL RIGHTS

Introduction:

Fundamental Rights guaranteed by the Constitution are one of the salient features of the Indian legal system.

These rights are enshrined in the Articles 12-35 (Part III) of the Indian Constitution. This part is called the ‘magna carta’ of our Constitution. These rights also form the basic structure of our Constitution. They are justiciable, that is in case of violation the court can be approached in order to enforce them, but not all are absolute. They were drafted with the aim of promoting the all round development of the citizens of India and their right to live in peace and harmony.


Origin of Fundamental Rights in India:

One should not forget the context in which the world’s largest constitution was drafted. The Second World War had just ended and the international community was struggling to find a way ahead.

The economic, political, historical turbulences of this era had also affected our nation in the worst ways. Even within India, this was a challenging period as religious riots, caste wars, and inherent gender inequality were threatening the social fabric of the whole country. The framers of the Constitution sought to unite a vast nation with such cultural and linguistic diversity, infusing the morale of constitutional justice based on the ideals of liberty, equality, fraternity and justice.

The Fundamental rights were envisioned with a need to reform pre- independence India, plagued by evil practices that pulled back societal progress. With this goal in mind they embarked on the mission of drafting the Fundamental rights, giving keen attention to each and every provisions. The American biographer of the Indian Constitution, Granville Austin calls these Rights the ‘Conscience of the Constitution.’

It was the ‘Constitution of India Bill 1895’, also referred to as the Swaraj Bill, that was the first articulation of a constitutional imagination by Indians. It covered a number of individual rights such as the right to free speech, right to property, equality before the law etc. In 1919 the draconian Rowlatt Act made people realise the importance of their freedom. The Indian independence movement was also a fight against evils that existed within the society, such as untouchability and serfdom. When India became independent on 15th August, 1947 a Constituent Assembly was formed of elected representatives, under the presidency of Dr Rajendra Prasad.

It was the responsibility of an Advisory Committee to the Constituent Assembly, composed of members like B.R. Ambedkar, Diwan Bahadur, Acharya J. B. Kripalani, Rajkumari Amrit Kaur, K.M. Panikkar, Dr. S. P. Mookerjee, and V. B. Patel, to draft the Fundamental Rights in the Indian Constitution.


Article 12- The State:

In the provisions of all fundamental rights, the term ‘State’ has been used as the entity against which they are mainly enforceable. This has been done to ensure that the State does not garner absolute power to cut down on the liberties of an individual or slip down to tyranny. To provide clarity as to what comprises of the ‘State’, Article 12 of the Indian Constitution defines it as inclusive of (1) the Union and State Governments, (2) the Parliament and State legislatures, and (3) all local or other authorities within the territory of India or under the control of the Government of India.


Article 13- Judicial Review:

Under Article 13 of the Indian Constitution, it is stated that the State or the Union shall not make such laws that take away or abridge the rights of the people.

If any law made by the Parliament or the State Legislature contravenes the provisions of this clause, to the extent of the contravention, it shall be void.

It also provides for the judicial review of all legislations. This is a notion that was taken from the US Constitution. It gives the Supreme Court and High Courts the power to scrutinize the legitimacy and lawfulness of a decision or action of the Executive and Legislature.


The Fundamental Rights:

The Fundamental Rights guarantee that India would essentially be a democracy which ensures all its citizens an environment of mutual respect and peaceful coexistence. The makers were inspired and influenced by the Bill of Rights of the American Constitution, French Declaration of Rights of Man and the Irish Constitution of 1935 among other sources such as constitutions of Japan and Myanmar.

The important provisions of the six fundamental rights would be as follows.


Right to Equality (Article 14–18):

  • The right to equality provides for the equal treatment of everyone before law, and equal protection of law. It prevents discrimination on various grounds, treats everybody as equals in matters of public employment, and abolishes untouchability, and titles.

  • Article 14 was inspired by the concepts from English and US Constitutions. It states that, under the same circumstances, the law will treat all people in the same manner. The ambit of this Article is far and wide, within which several landmark judgements of the Supreme Court have been pronounced.

In National Legal Service Authority [NALSA] v UOI [AIR 2014 SC 1863], the Court held that the right to equality extended to transgender persons of the society too, recognising those who fall outside the male/female gender binary. In Shayara Bano v UOI [ WP (C) 118/2016], the Court declared that gender equality, equity and justice are values intrinsic to the right to equality and declared the practice of triple talaq unconstitutional. The Supreme Court held the right to worship as applicable to all individuals regardless of gender or age, in the verdict to Indian Young Lawyers’ Association v. State of Kerala [WP 373/2006], allowing menstruating women to enter the Sabarimala temple of Kerala. This was also in lines with the Right to freedom of religion. It opened Pandora's box giving rise to a number of applications challenging practices which are biased mostly against women.

The decriminalisation of Section 377 of the Indian Penal Code in the verdict to Navtej Singh Jauhar v UOI [WP (C) 572/2016], as it took away the individual “choice of whom to partner” , which was “intrinsic to the constitutional protection of sexual orientation”.

  • Article 15 prohibits discrimination of any citizen on grounds of race, religion, caste, place of birth, or sex. They shall not be denied access to any public places or use of tanks, wells or ghats,etc. that are maintained by the State or meant for the larger public. It allows for special provisions to be made for disadvantaged groups such as Scheduled Castes and Tribes, or women and children.

By the 103rd Constitutional Amendment Act, the State was empowered to provide 10% reservations to Economically Weaker Sections of General category, for jobs and admissions to educational institutions. The constitutional validity of this clause was challenged through various petitions such as the writ petition Youth for Equality vs Union of India. It argued that this violates the basic structure of the Indian Constitution and the Right to Equality guaranteed by Article 14, as it does not provide for economic reservations.

  • Article 16 states that there shall be no inequality in employment on the grounds of race, religion, cast, descent, place of birth, residence, or any such criteria. However there are certain exceptions such as reservation for any backward class of citizens who in the opinion of the State are not adequately represented.

This clause was added during the drafting period on the recommendation of the subcommittee of minorities in order to enable the government to reserve a certain proportion of posts in public services for the “minorities.” The Constituent Assembly debates show that what was initially phrased as “not adequately represented” was changed to “classes which in the opinion of the state are not adequately represented” after opposition raised by Dr. B.R Ambedkar. He was against the use of the term “not adequately represented” as he felt that this would make any reservation made by the State “open to challenge in the court of law on the ground that the classes in whose favour reservation was made happened to be in fact already adequately represented” (Shiva Rao 1968: 194).

This is one of many instances by which we can see how keen the Constituent Assembly was on clarifying the intricate details of each provisions of the Fundamental Rights.

  • Article 17 abolishes and forbids the practice of ‘untouchability’ in any forms. In People’s Union for Democratic Rights vs Union of India [AIR 1982 SC 1473], the Supreme Court said that when any right under the Article 17 is violated by any private individual then it will be the responsibility of the state to take immediate action.

The Protection of Civil Rights Act (1955) and the Schedule Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 were also formulated based on this Article.

  • Article 18 prohibits the State from conferring titles on anyone whether Indian citizen or not. This does not include any distinction or award which cannot be used by the recipient as a title. For example, Bharat Ratna or Padma Vibhushan which are mere titles.

Right to Freedom (Article 19–22)

  • Article 19 of the Constitution contains rights that promote the idea of ‘liberty’ as held up by the Preamble. The citizens shall have the following rights:


  1. Freedom of speech and expression

  2. To assemble peaceably and without arms

  3. To form associations or unions

  4. To move freely throughout the territory of India

e) To reside and settle in any part of the territory of India

g) To practice any profession, or to carry on any occupation, trade or business.

However these rights are not absolute. The State can impose reasonable restrictions on them. Earlier there were seven rights covered under Article 19 but by the 44th amendment the Right to Hold and Dispose Property was removed and it was made an ordinary right.

  • Article 20 deals with protection of persons in respect of conviction of offences. It prohibits the following:


  1. ‘Ex-post facto' legislation, that is a person cannot be convicted of any offence which was not an offence under the law in force at the time of the commission of that act. Thus, the Legislature is prohibited to make criminal laws having retrospective effect.

  2. ‘Double Jeopardy' that is, no person shall be prosecuted and punished for the same offence more than once.

  3. Prohibition against Self-Incrimination that is, no person accused of any offence shall be compelled to be a witness against himself.

  • Articles 21 and 22 deal with protection of life and personal liberty. It ensures that no person shall be deprived of his life or personal liberty except according to procedure established by law.

It is not an absolute right. The State can impose restrictions on the right to life and liberty but it should be fair, reasonable and just, and as per the procedure established by law. This is a very important fundamental right that has given various interpretations from time to time and became the foundation to many landmark judgements.

The concept of due process of law was strengthened by the Supreme Court verdict in A.K. Gopalan v. State of Madras [AIR 1950 SC 27], in which the court upheld the validity of the Preventive Detention Act, 1950, which provided that the grounds of detention that are communicated to the detainee or any representation made by him against these grounds cannot be disclosed in a court of law.

However in Maneka Gandhi v. Union of India [AIR 1978 SC 597], the Supreme Court overturned this judgement by reiterating that any procedure established by law that results in the deprivation of life or liberty of a person must not be unfair, unreasonable or arbitrary. It also gave rise to the Golden Triangle rule which says that there is an interlink between the provisions of Articles 19, 14 and 21, which comply with each other. The 86th Constitutional Amendment (2002) inserted Article 21(A) which made the Right to free and compulsory education of all children between the age of 6 to 14 a Fundamental Right. In another important Supreme Court verdict for the case Vishaka and Ors. V State of Rajasthan [AIR 1997 SC 3011], it was declared that sexual harassment of a woman at her workplace amounts to violation of her rights to life and liberty.

It also resulted in the formation of the ‘Visakha guidelines ‘ in order to ensure that women are treated with dignity and safer work environments are created. Other interpretations given to this Article upheld the rights of all persons, including foreign nationals, such as the Right to Shelter ( in Chameli Singh v State of UP [1996 2 SCC 549]), Right to Medical Care (in Parmanand Katara vs UOI [1989 AIR 2039]), Right to Clean Environment (in M.C Mehta v. UOI [AIR 1987 965], and many others.

  • Article 22 deals with the protection against arrest and detention in certain cases. It is applicable to foreign nationals too. This provision extends certain procedural safeguards for individuals in case of an arrest.

It protects the right of persons against arbitrary arrests and detention. It ensures that no person who is arrested shall be detained without being informed of the grounds of arrest. He shall be defended by a lawyer of his choice and should be produced before the nearest magistrate within 24 hours. It also gives protection to people arrested under preventive detention, that is, if they are detained without trial on the assumption that their release would not be in the best interest of society. The Article also authorises the Parliament to make laws providing for preventive detention along with safeguards to prevent misuse of this power.

Right against exploitation (Article 23–24)

These are the two articles of the Constitution which guarantee every citizen protection from any kind of forced labour.

  • Article 23 says that traffic in human beings and beggars and other similar forms of forced labour are prohibited and violation is punishable in accordance with law.

  • Article 24 prohibits employment of children below the age of 14 years in factories

or other hazardous employment.

The Supreme Court in a landmark judgement in 1983, in the case Sanjit Roy vs State of Rajasthan [1983 AIR 328], has held that the payment of anything less than the minimum wage to all workers to be "forced labour" is a violation of Article 23. Several important acts such as the Factories Act 1948, Mines Act of 1952, The Child Labour (Prohibition and Regulation) Act, 1986 were passed in pursuance with Article 24.


Right to freedom of religion (Article 25–28)

India being the birthplace to four major religions of the world, and a land of diverse belief systems, it was considered important to ensure that all citizens be given the freedom to practice their religion without intolerance.

The Indian Constitution guarantees freedom of religion and acknowledges the individual’s autonomy in his or her relationship with God. The insertion of the word ‘secular’ in our Preamble by the 42nd Constitutional Amendment was towards making sure that all the religions in India get equal respect, protection and support of the State. Indian secularism is to be understood in the light of the Supreme Court verdict in the case S.R. Bommai vs Union Of India [1994 AIR 1918] in which it was explained that under the Constitution, secularism does not mean an atheist society but a heterogeneous society providing equal status to all religions without favoring or discriminating against any one.

The right to freedom of religion comprises the following articles.


  • Article 25 ensures that every person is free to profess, practise and propagate any religion.

However, this has to be in lines of societal morality and should not hamper the peaceful coexistence of individuals. In Rev. Stanislaus vs State Of Madhya Pradesh [1977 AIR 908] the Court explained that the right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith, but shall not include the right to ‘convert’ another person to the former’s faith.

  • Article 26 says that subject to public morality and health every religious denomination or any section thereof shall have the right to establish and maintain religious institutions and can acquire and manage immovable property for itself.

  • Article 27 gives freedom from payment of tax for promotion of any particular religion.

  • Article 28 gives freedom as to attendance at religious instruction or religious worship in certain educational institutions.

Cultural and Educational Rights (Article 29-30)

  • Article 29 guarantees to every section of the citizens residing anywhere in India and "having a distinct language, script or culture"

the right to conserve the same. No citizen can be denied admission to any educational institution maintained or aided by the State on the grounds only of religion, race, caste or language.

  • Article 30 confers upon a minority community the right to establish and administer an educational institution of its choice. The State is not to discriminate in granting aid to such institutions on the ground that it is under the management of a particular minority. Full compensation has to be paid if the State seeks to acquire the property of a minority educational institution.

Right to Constitutional Remedies (Article 32)

  • Article 32 affirms the right to move the Supreme Court if a fundamental right is violated. During the Constituent Assembly debates in December 1948, Dr B R Ambedkar had found this Article to be the “very soul and heart of the Constitution”.

According to this Article an individual, on violation of his fundamental rights can approach the Supreme Court through five kinds of writs which are the following:

  • Habeas Corpus (show me the body) – related to personal liberty in cases of illegal detentions and wrongful arrests.

  • Mandamus (we command) – directing public officials, governments, courts to perform a statutory duty.

  • Quo Warranto (by what authority)- to enquire by what warrant is a person holding public office.

  • Prohibition – directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and


  • Certiorari (to be informed) – for re-examination of an order given by judicial, quasi-judicial or administrative authorities.


Conclusion:

In conclusion, it is to be understood that the Fundamental Rights in our Constitution are not without its inherent flaws. Many usages such as “security of State", "public order" and "morality" do not fit into watertight implications. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated or explained in the Constitution, and this ambiguity leads to unnecessary litigation. The cases involving violations of fundamental rights move sluggishly in courts which contradicts the legal maxim ‘justice delayed is justice denied’. However from its inception, to this day, these rights have gone through an evolution, giving new interpretations reflecting the changes that society we live in undergoes. However they have not compromised on the ideals they originally stood for.



This article is written by Arundhathi K of University of Delhi.

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