FUNDAMENTAL RIGHTS
Part
III of Indian Constitution is about Fundamental Rights. It includes articles
from 12 - 35.Part III of the Constitution has been described as the "Magna
Carta" of India.Fundamental rights are derived from the Constitution of
USA.The Fundamental Rights are guaranteed by the Constitution to all people
without any discrimination.Fundamental Rights are fundamental in the sense that
they are most essential for the all round development of the individuals.Some
of the Fundamental Rights i.e., Article 15,Article 16,Article 19,Article 30 are
available only to the citizens.While rest are available to all persons whether
citizens,foreigners or legal persons like corporations or Companies.Originally,
the Constitution provided for seven Fundamental Rights.Among them,Rights to
Property has been deleted as the Fundamental Right by the 44th Amendment
Act,1978,and it is made a legal right under Article 300-A in Part XII of the
Constitution.So, at present,there are only following six Fundamental Rights.
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| FUNDAMENTAL RIGHTS |
RIGHT TO EQUALITY
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RIGHT TO EQUALITY
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Article 14
It says
that the state shall not deny to any person (these include legal persons i.e.,
any association,company or individual) equality before the law or the equal
protection of the laws within the territory of India.This provision confers
rights on all persons whether citizen or foreigners.This concept is borrowed
from the British Constitution.
EXCEPTIONS OF ARTICLE 14
The
President or the Governor is not answerable to any court for the exercise and
performance of the powers and duties of his office.
No civil
proceedings against them shall be instituted during their term of office.
The
foreign sovereigns,ambassadors and diplomats enjoy immunity from criminal and
civil proceedings.
The UNO
and its agencies enjoy the diplomatic immunity.
Article 15
It
provides that the state shall not discriminate against any citizen on grounds
only of religion,race,caste,sex or place of birth.The word 'only' indicates
that the discrimination cannot be made merely on the ground that one belongs to
a particular caste,religion,sex etc.
EXCEPTIONS OF ARTICLE 15
The
Article also empowers the government to make any special provision for women
and children.
The
state is permitted to make any special provision for the advancement of any
socially and educationally backward classes of citizens or for the scheduled
castes and scheduled tribes.
The
states is empowered to make any special provision for the advancement of any
socially and educationally backward classes of citizens or for SC or ST
regarding their admission to educational institutions,whether aided or unaided
by the state.This provision was added by the 93rd Amendment Act,2005.
Article 16
It
provides for equality of opportunity for all citizens in matter of public
employment.No citizen can be discriminated against or be ineligible for any
employment on grounds of only religion,race,caste,sex,descent,place of birth or
residence.
EXCEPTIONS OF ARTICLE 16
Residence
can be made as a restriction for employment.
Special
favours can be given to the backward classes which are not adequately
represented.
Religion
can be a ground for discrimination in special cases.These are religious
institutions taken over by the state.So, the religious posts are reserved for
the people of the same religious denomination.
Article 17
Under
this article,"untouchability" is abolished and its practice in any
form is forbidden.The enforcement of any disability arising out of
untouchability shall be an offence punishable in accordance with law.
The
Parliament enacted the "Untouchability (offences) Act,1955,which
prescribes the punishment for the practice of untouchability. It has been
comprehensively amended and renamed as the Civil Rights (Protection) Act, 1976.
The Act defines civil right as any right accruing to a person by reason of the
abolition of untouchability by Article 17 of the Constitution.
Article 18
The
article ensures abolition of titles.It prevents the state from conferring any
title.It prohibits a citizen of India from accepting any titles from any
foreign state.Thus it is clear that the hereditary titles of nobility like
Maharaja, Raj Bahadur, Rai Bahadur, Dewan etc. which were conferred by colonial
states,are banned by Article 18 as these are against the equal status of all.
The
National Awards i.e., Bharat Ratna, Padma Bhushan etc, which were instituted in
January 1954,ruled that this does not amount to 'titles' within the meaning of
Article 18.However, it is also ruled that they should not be used as suffixes
or prefixes to the names of awardees.
RIGHT TO FREEDOM (ARTICLE 19-22)
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| RIGHT TO FREEDOM |
This
Article of the Constitution guarantees to all citizens the six rights
Right
to freedom of speech and expressions
It
implies that every citizen has the right to express his views,opinions,belief
and convictions freely by word of mouth, writing, printing, picturing or in any
other manner.The freedom of speech and expressions includes the following.
- Right to
propagate one's views as well as views of others.
- Freedom of
press.
- Freedom of
commercial advertisements.
- Right against
tapping of telephonic conversation.
- Right against bandh (strike)
called by a political party.
- Right to know about government
activities.
- Freedom of silence.
RIGHT TO INFORMATION ACT,2005
The RTI Act is to
provide for setting out the practical regime of right to information for every
citizen.The act applies to every state and union territory,except Jammu and
Kashmir.
Any citizen may request
information from a public authority,which is required to reply within thirty
days.
RIGHT TO FREEDOM OF ASSEMBLY
Every citizen has the
right to assemble peacefully and without arms.It includes the right to hold
public meetings,demonstrations and take out processions.This right does not
include the right to strike.
The state can impose
reasonable restrictions on the exercise of right of assembly on the grounds of
sovereignty and integrity of India and public order including the maintenance
of traffic in the area concerned.
RIGHT TO FREEDOM TO FORM ASSOCIATION OR UNION
Every citizen has the
right to form association and unions,it includes the right to form political
parties,companies,partnership firms,societies,clubs,organisations,trade unions
or any body of persons,State can impose reasonable restrictions on grounds of
sovereignty and integrity of India,public order and morality.
RIGHT TO FREEDOM MOVEMENT
Every citizen has the
right to move freely throughout the territory of the country.
Citizen can move freely
from one state to another or from one place to another within a state.
The grounds of imposing
reasonable restrictions on this freedom are two,the interest of the general
public and the protection of interests of any scheduled tribes.
RIGHT TO FREEDOM OF RESIDENCE
This freedom gives every
citizen the right to reside and settle in any part of the territory of the
country.
The state can impose
reasonable restrictions on two grounds,the interest of the public and the
protection of interest of any scheduled tribes.
RIGHT TO FREEDOM OF PROFESSION
Every citizen has the
right to practice any profession or to carry on any occupation,trade or
business.
The state can impose
reasonable restrictions on the exercise of this right in the interest of
general public.
Originally,Article 19
contained a seventh right,Right to acquire,hold and dispose of property,which
has been deleted by the 44th Amendment Act of 1978.
It is now a legal right
under Article 300-A in Part XII of the Constitution.
Article 20
The Article comprises
protection in respect of conviction for offences.It grants every citizen or
foreigners protection against arbitary and excessive punishment to an accused
person.
This protection is
available against the three types of conviction-Ex-post-facto law, Double
jeopardy, Self incrimination.
Article 21
The Article declares
that no person shall be deprived of his life or personal liberty,but also for
the right to dignity and all other attributes of human personality that are
essential for the full development of a person.
Article 21 has became
the 'Foundation Stone' of Part III of the Constitution.The Article has
undergone several changes.The Supreme Court declared the following Rights as
part of Article 21.
Right to live with human
dignity.
Right to livelihood.
Right to privacy.
Right to
shelter,health,free legal aid,travel aboard,emergency medical aid, fair trail.
Right to information.
Right to free education
upto 14 years of age.
Right against solitary
confinement,handcuffing,inhuman treatment,delayed execution,bonded labour,
custodial harassment.
EDUCATION NOW A
FUNDAMENTAL RIGHT (ARTICLE 21A)
EDUCATION NOW A FUNDAMENTAL RIGHT
The Constitutional (86th
Amendment) Act,2002 added a new Article 21A in the Part III of the Constitution
and it 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 to higher or professional education.
Article 22
The Article grants
protection to persons who are arrested or detained.The authority cannot arrest
or detain a person without properly informing him/her of the grounds for such
arrest/detention.
The detained/arrested
person must be produced before the nearest magistrate within 24 hours of
arrest.
The preventive detention
laws made by the Parliament are
- Preventive Detention
Act,1950,expired 1969.
- MISA, 1971, Repealed in 1978.
- COFEPOSA, 1974.
- NASA, 1980.
- POTA, 2002, Repealed in 2004.
RIGHT AGAINST
EXPLOITATION (ARTICLE 23 AND 24)
RIGHT AGAINST EXPLOITATION
Article 23
Article prohibits
traffic in human beings,begging and forced labour. Any contravention of this
provision shall be an offence punishable in accordance with law.The right is
available for citizens and non-citizens also.
The expression 'traffic
in human beings' means selling and buying men,women and children like goods and
immoral traffic in women and children, including prostitution,devadasis and
slavery.
One shall not be forced
to provide labour or forced services against his will even if remuneration is
paid. If remuneration is less than minimum wages, it amounts to force labour
under Article 23.
Article 24
The essence of Article
24 is the prohibition of employment of children below 14 years of age, in
hazardous activities like factory,mine,construction, work or railway.
The child labour
(Prohibition and Regulation) Act, 1986 has been passed in this regard.
RIGHT TO FREEDOM OF RELIGION (ARTICLE 25 TO 28)
Article 25
The Article says that
all persons are equally entitled to freedom of conscience and the right to
freely profess,practice and propagate religion.
The rights in Article 25
are available for citizens and non-citizens also. However, these rights are
subject to public order, morality,health and other provisions relating to
Fundamental Rights.
The state is permitted
to regulate or restrict any economic,financial,political or other secular
activity associated with religious practice.
Article 26
The Article says that
every religious denomination or any section shall have the following rights
- To establish and maintain
institutions for religious and charitable purposes.
- To manage its own affairs in
the matters of religion.
- To own and acquire movable and
immovable property and
- To administer such property in
accordance with law.
Article 27
The Article lays down
that no person shall be compelled to pay any taxes for the promotion or
maintenance of any prohibits the state from favouring, patronizing and
supporting one religion over other.
Article 28
According to the
Article, 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 which is administered by the state,but
has been established under any endowment or trust which requires that religious
instructions shall be imparted in such an institution.
CULTURE AND EDUCATIONAL RIGHTS (ARTICLE 29 TO 31)
Article 29
The Article provides
that any section of the citizens residing in any part of India having a
distinct language,script or culture of its own,shall have the right to conserve
the same.Article 29 grants protection to both religious minorities as well as
linguistic minorities.
Article 30
According to Article 30,
all minorities, whether based on religion or language,shall have the right to
establish and administer educational institutions of their own.Thus,the
protection under Article 30 is confined only to minorities and does not extend
to any section of citizens,as under Article 29.
Article 31
Right to
Property,omitted by the 44th Amendment Act, 1976.
RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)
Article 32
Provides the
right to remedies for the enforcement of the Fundamental Rights of an aggrieved
citizen.
Dr BR Ambedkar called
this Article 'the heart and soul of the Constitution' and said that without
this Article the Constitution would be nullity.
Thus,the Article 32
provides a guaranteed,effective,expeditious, inexpensive and summary remedy for
the protection of the Fundamental Rights,and not any rights,like
non-fundamental constitutional rights statutory rights,customary rights etc.
To enforce the
Fundamental Rights, the Supreme Court is empowered,under Article 32, to issue
writs of various forms.
The Supreme Court (under
Article 32) and the High Courts (under Article 226) can issue the writs of
habeas corpus,mandamus,prohibition,certioran and quo-warranto. Thes writs are
borrowed from British Constitution.
- Habeas Corpus It literally
means to have a body i.e., to produce 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.
- Mandamus 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.
- Prohibition It literally means
'to restrain' or 'forbid'.This kind of writs issued by the higher courts
to the lower courts or the quasi-judicial bodies when the latter exceed
their judicial authority.
- Certiorari It literally means
'to be certified' or 'to be informed'.It is similar to Prohibition.This
writ is issued to quash the order of a lower court or the decision of a
tribunal in excess of its jurisdiction.
- Quo Warranto 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.
Article 33
It gives power to the Parliament
to modify the Fundamental Rights in their application to enforce.
Article 34
Restriction on rights
conferred by this part while martial law is in force in any area.
Article 35
Legislation to given
effect to the provision of this part.
RIGHTS OUTSIDE PART III
Besides the Fundamental
Rights included in Part III,there are certain other rights know as
Constitutional Rights or Legal Rights or non-Fundamental Rights.
Contained in other parts
of the Constitution .They are
- Article 265,Part XII--No tax shall
be levied or collected expect by authority of law.
- Article 300 A,Part XII--No
person shall be deprived of his property save by authority of law.
- Article 301 in Part
XIII--Trade,commerce and intercourse throughout the territory of India
shall be free.
- Article 326 in Part XV --The elections to the Lok Sabha and the State Legislative Assemblies shall be on the basis of adult suffrage.
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