ABSTRACT:

In order to maintain peace and harmony, the constitutions of democratic countries provide for the provision of fundamental rights. These rights aim to protect the basic rights of their citizens and provide equality and thereby, create the rule of law and help in the growth and development of the society. In India, fundamental rights are provided in part III of the Constitution of India which are justiciable in nature. This article aims to discuss the types of fundamental rights and constitutional remedies provided by the Constitution of India in the instance of their violation, in the light of judgements passed in two recent case laws of 2023.

Keywords:

fundamental rights, the constitution of India, writs, equality, freedom, expression, exploitation, freedom of religion, cultural and educational rights, constitutional remedies

Introduction:

The Indian Constitution, 1950 contains certain provisions which guarantee the basic human rights of all the citizens of India. There are six Fundamental Rights and they are immune from any kind of discrimination based on religion, race, gender, etc. These rights can be invoked by individuals if there is any violation of them. Fundamental Rights are included in Part-III of the Indian Constitution, it is also known as the ‘Magna Carta’ of the Indian Constitution. Through this article, we will find out more about the fundamental rights enshrined in the Indian Constitution.

Schedule of Fundamental Rights:

There are six fundamental rights enshrined in the Indian Constitution, they are as follows –

Right to Equality (Article 14–18)
Right to Freedom (Article 19–22)
Right against Exploitation (Article 23–24)
Right to Freedom of Religion (Article 25–28)
Cultural and Educational Rights (Article 29–30)
Right to Constitutional Remedies (Article 32)

It is pertinent to note that the right to property was one of the fundamental rights in the Constitution. However, the right to property was extracted from the schedule of fundamental rights by the 44th Constitutional Amendment Act, 1978. Being under the scope of fundamental rights, the right to property was acting as an obstacle in achieving the goal of property distribution, equality and socialism. Thus, at present, the right to property is a legal right under Article 300A and not a fundamental right.

Salient features of Fundamental Rights:

The following are a few features of the Fundamental Rights enshrined in the Constitution of India –

The Indian Constitution guarantees and protects fundamental rights.
The Parliament has the power and authority to restrict the fundamental rights on reasonable grounds, however, such restrictions can only be made for a fixed period of time. The grounds based on which the fundamental rights are restricted by the parliament will be reviewed by the judiciary for reasonability. Therefore, fundamental rights are neither absolute nor sacrosanct.
Fundamental Rights can be suspended in the case of national emergencies however, the rights guaranteed under Articles 20 and 21 will still be applicable. In the case of military rule, fundamental rights can be restricted in any area within the Indian territory.
The Constitution of India enables an individual to move directly to the Supreme Court of India for the enforcement of their fundamental right in case they are violated or restricted. The fundamental rights are thus justiciable.

Importance of Fundamental Rights:

Fundamental rights act as the foundation that upholds the democratic system and secularism in India. They establish the essential conditions for an individual’s material and moral protection ensuring social justice and equality. They also defend the rights of minorities and other weaker sections of society. Fundamental rights also ensure individual liberty. These rights establish the rule of law thereby keeping a check on the absoluteness of the government’s authority.

Amendability of Fundamental Rights:

The Supreme Court in the case of Kesavananda Bharati, (1974) that the Parliament can amend any part of the constitution including all the fundamental rights subject to the ‘Doctrine of Basic Structure’ of the Constitution.

The Supreme Court has neither specifically defined as to what entails the basic structure nor did it mention any exhaustive list regarding the contents of the basic structure of the Constitution. The Apex Court however stated that only additions can be made to the basic structure and no deletions will be allowed to be made. The Supreme Court in a catena of judgements has held that the following provisions are a part of the basic structure of the Constitution –

Sovereignty of India
Democracy
Secularism
Republic
Free and fair elections
Judicial review, etc.

Doctrine of severability:

The doctrine of severability is also known as the “Doctrine of Separability”. It protects our Fundamental Rights since it is enshrined in Article 13(1) of the Constitution stating that all the laws implemented in India before the initiation of the Constitution shall continue to be in force, however, the extent to which they are in conflict with the fundamental rights will to the degree of such irregularity be void. In simple terms, the entire law would not be held invalid or void, only the part of the law which is inconsistent with the Fundamental Rights shall be held void or invalid.

Doctrine of eclipse:

The doctrine of eclipse is applied when one provision of the law dominantly overshadows the other provision and as the name suggests this doctrine is employed when a law or an act disregard or is inconsistent with the Fundamental Rights. In the case of this doctrine, Fundamental Rights eclipse the law or act that is inconsistent, thereby making it unenforceable, yet not void ab initio. Such a law or act can be implemented once again if the limitations established by the Fundamental Rights are eliminated.

Right to Equality:

Article 14 – Equality before the law

Article 14 considers all individuals the same in the eyes of the law.
This Article states that all citizens of India must be treated equally before the law.
The said Article further states that the law protects everybody equally.
Under similar circumstances, the law must treat people in the same manner.

Article 15 – Prohibition of discrimination

This provision of the Indian Constitution prohibits discrimination of any kind. Based on the grounds of religion, race, place of birth, caste, gender, if any citizen is subjected to any disability, restriction, liability or condition with regard to –

Public places’ access;
Use of public properties such as tanks, ghats, wells, etc that are maintained by the state or that are intended for the use of general public;
The aforementioned Article also states that special provisions can be created for women, children and the backward classes notwithstanding this Article.

Article 16 – Equal opportunity in case of public employment

This Constitutional provision provides equal employment opportunities in State Service for all citizens.
In the case of public employment, no citizen must be discriminated against or appointed based on the grounds of religion, caste, race, gender, place of birth, residence or descent.
Exceptions to the said Article can be made for providing special provisions for the backward classes.

Article 17 – Abolition of untouchability

The aforesaid article strictly prohibits the practice of untouchability.
By virtue of this article, untouchability has been abolished in all forms.
In case any disability or dispute arises due to untouchability then it is considered an offence.

Article 18 – Abolition of titles

The said Article abolishes titles. It states that the State shall not confer any titles. However, those titles which are academic or military in nature shall be allowed.
The said article further prohibits the citizens of India from accepting any kind of titles from a foreign country. The titles that were awarded by the then British government such as Rai Bahadur, Khan Bahadur are also abolished by virtue of this article.
Awards such as Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and military honours like Ashok Chakra, Param Vir Chakra shall not be considered under this category.

Right to Freedom

The following articles of the Constitution deal with the fundamental Right to Freedom –

Article 19

Article 19 guarantees the following six freedoms. They are as follows –

Article 19(1)(a) – Freedom of speech and expression

This provision guarantees freedom of speech and expression to every citizen of India. However, the law may impose restrictions on the scope of this freedom considering the interests of the integrity, security and sovereignty of the country. The exceptions further include- friendly relations with foreign nations, maintaining public order, regarding the incitement to an offence, defamation or contempt of court.

Article 19(1)(b) – Freedom to assemble

This provision guarantees each individual the freedom to assemble peacefully without arms. However, reasonable restrictions may be imposed considering the interests of the sovereignty and integrity of the country and to maintain public order.

Article 19(1)(c) – Freedom to form associations or unions or cooperative societies

This provision allows the citizens of India to form associations, unions or cooperative societies but with certain exceptions considering the integrity and security of the country and the maintenance of the public order.

Article 19(1)(d) – Freedom to move freely

This provision states that the citizens of India can move freely throughout the territory of India. However, this freedom may be restricted on the grounds of security, public order or for safeguarding the interests of the Scheduled Tribes.

Article 19(1)(e) – Freedom of residence

This provision states that all the citizens of India have the right to reside in any part of the country. However, this freedom may be restricted on the grounds of security, public order or for safeguarding the interests of the Scheduled Tribes.

Article 19(1)(g) – Freedom of profession

This provision states that all citizens have the right to carry on any trade or profession or occupation, provided that such trade or profession or occupation is not illegal or immoral. Also, the law does not prohibit the State from making laws related to technical or professional qualifications that are required for practising the occupation or trade.

Article 20 – Protection of citizens in case of conviction for offences

This provision deals with the protection of citizens in respect of conviction for offences. It mentions three kinds of protections to the individual against the State, they are retrospective criminal legislation, double jeopardy and prohibition against self-incrimination.

Article 21 – Right to Life

This provision states that no individual must be deprived of his life and personal liberty by the State except as per the procedure laid down by law. Right to life does not mean merely living, it states that an individual must lead a dignified life. The said article has a very wide scope and its interpretation has been molded continuously over the decades.

Article 21A – Free education for children of 6-14 years of age

This provision was inserted in the Constitution by the 86th Constitutional Am endment Act in 2002. It mentions that the State must provide free and compulsory education to all children between the ages of 6 and 14.

Article 22 – Protection against arrest and detention in certain cases

This provision is extended to both citizens and non-citizens. It provides certain procedural safeguards to people in case of an arrest. It is pertinent to note that this provision is not a fundamental right against detention and arrest. This right aims to prevent arbitrary arrests and detention. This provision does not include the people arrested under preventive detention laws and enemy aliens. This article further provides the following –

Article 22(1)

This provision states that any individual who is in custody has to be informed as to why they have been arrested. Also, they must not be denied the right to consult a lawyer.

Article 22(2)

This provision states that the arrested individual should be produced before a judicial magistrate within 24 hours of their arrest. This provision further states that no individual who has been arrested can be held in custody for more than the period fixed by the judicial magistrate.

Right against exploitation:

Article 23 – Prohibition of traffic in human beings and forced labour

This provision is further divided into the following –

Article 23(1) – Human trafficking and ‘beggar’ and other such forms of forced labour are prohibited by virtue of this provision and any kind of violation of this provision shall be a punishable offence under the law.

Article 23(2) – 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 based on the grounds of religion, race, caste or class or any of them.

This provision not only protects citizens from the State but also from private citizens. Certain laws were passed by the Parliament with regard to this provision, they are- Bonded Labour System (Abolition) Act, 1976 and Suppression of Immoral Traffic in Women and Girls Act, 1956.

Article 24 – Prohibition of employment of children in factories, etc.

This provision states that no child below the age of fourteen years must be employed to work in any factory or mine or engaged in any other such hazardous employment. This provision prohibits the employment of children below the age of 14 in any hazardous industry or factories or mines irrespective of any exceptions. But the employment of children in non-hazardous work is legally allowed. Certain laws were passed by the Parliament with regard to this provision, they are – the Factories Act, 1948, The Mines Act of 1952, The Child Labour (Prohibition and Regulation) Act, 1986, Child Labour (Prohibition & Regulation) Amendment Act, 2016, etc.

Right to Freedom of Religion

Article 25 – Freedom of conscience and free profession, practise, and propagation of religion

This provision guarantees the freedom of conscience, the freedom to profess, practise, and propagate one’s religion to all citizens. However, the said freedoms are subject to public order, health, and morality. This article further mentions that the State can make laws to regulate or restrict financial, economic, political or other secular activities relating to religious practice. It further allows the social welfare and reform or opening of Hindu religious institutions of a public nature to all sections and classes of Hindus.

Article 26 – Freedom to manage religious affairs

This provision states that subject to morality, health, and public order, every religious denomination has the following rights –

The right to form and maintain institutions for religious and charitable intents.
The right to manage its own affairs in the matter of religion.
The right to acquire immovable and movable property.
The right to administer such property according to the law.

Article 27 – Freedom as to payment of taxes for promotion of any particular religion

As per this provision, no taxes shall be imposed on such proceeds which are directly used for the promotion and/or maintenance of any particular religion/religious denomination.

Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions

This provision enables the establishment of educational institutions that are maintained by religious groups to disseminate religious instruction.

Cultural and Educational Rights

Article 29 – Protection of Interests of Minorities

This provision of the Constitution aims to protect the interests of minority groups.

Article 29(1)

This provision states that any section of the citizens residing in India having a distinct culture, language, or script, have the right to conserve their culture, language and script.

Article 29(2)

This provision mentions that the state must not deny admission into educational institutes maintained by it or those that receive aid from it to any person based on the grounds of race, religion, caste, language, or any of them.

Article 30 – Right of Minorities to Establish and Administer Educational Institutions

This right is provided to minorities to form and govern their own educational institutions. This is why the said provision is also known as the ‘Charter of Education Rights’.

Article 30(1)

This provision states that all religious and linguistic minorities have the right to establish and administer educational institutions of their choice.

Article 30(2)

This provision provides that the state, when granting aid to educational institutions, shall not discriminate against any educational institution based on the reason that it is under the management of a minority, whether based on religion or language.

Article 32 – Right to Constitutional Remedies

The Constitution guarantees certain remedies if the fundamental rights of the citizens are violated. The State does not have the power or authority to infringe upon or curb the right of any individual. In case these rights are violated, the aggrieved individual can approach the courts. They can even directly approach the Supreme Court of India which can issue writs for the enforcement of fundamental rights. There are five kinds of writs that can be issued by the court, they are –

Habeas Corpus

The term ‘Habeas Corpus’ means “to have the body of”. As per this writ, the court has the authority to call upon any person who is being detained to assess the legality of their detention.

Certiorari

The term ‘Certiorari’ means “to be certified”. By the virtue of this writ, a higher court reviews a case that has been tried in a lower court. It is basically employed to seek judicial review of a decision given by a court or a government authority.

Prohibition

The writ of ‘Prohibition’ is issued by a court to restrict or prohibit the lower courts, tribunals and other such quasi-judicial authorities from acting beyond their legal authority. It is employed to check inactivity whereas the writ of Mandamus checks activity.

Mandamus

The term ‘Mandamus’ means “We command”. This writ is employed by the court to direct a public official who has failed or refused to do his duty, to resume his work. The writ of Mandamus is also issued against a public body, an inferior court, a corporation, a tribunal, or a government.

Quo Warranto

The term ‘Quo Warranto’ means “By what authority or warrant”. The Supreme Court or high courts employ this writ to avoid illegal usurpation of a public office by an individual. The writ of Quo Warranto authorizes the court to examine the legality of a person’s claim to a public office.

Conscience overview of landmark cases relating to Fundamental Rights:

A. K. Gopalan v. State of Madras (1950)

In this case, A.K. Gopalan filed a petition under Article 32 thereby invoking the writ of habeas corpus against his detention. Later, he was prohibited from disclosing the grounds based on which he was detained since Section 14 of the Preventive Detention Act, 1950 prohibited such disclosure in the court. As a result, he claimed that such detention violates Articles 14, 19, and 21 of the Constitution and further the provisions of the Act violate Article 22 of the Constitution.

This case led to the landmark judgement of the Supreme Court of India wherein the Hon’ble Court held that Article 21 of the Constitution shall not require the Indian courts to apply the due process of the standard of law. Further, the Hon’ble Court upheld the validity of the Preventive Detention Act, 1950 except for Section 14, which provided that the reasons for detention given to the detainee or any representation made by him against such reasons shall not be disclosed in a court.

Shankari Prasad v. Union of India (1952)

In this case, the Constitutional validity of the first Amendment of 1951, which curtailed the right to property, was challenged. In this case, it was challenged that the amendments that curb the fundamental right of the citizens are not allowed by Article 13 regarding Article 31A and 31B. It was held by the Supreme Court that the power to amend the Constitution under Article 368 also includes the power to amend fundamental rights.

Golak Nath v. State of Punjab (1967)

In this case, Golak Nath and his family claimed an excess of 500 sections of land in Punjab. Meanwhile, the state government made an enactment namely, Punjab Securities and Land Tenures Act, 1950 by virtue of which Golak Nath and his family were only allowed to keep an excess of 30 sections of land and not more than that. As a result, Golak Nath filed a writ petition under Article 32 of the Indian Constitution questioning the legitimacy of the enactment and further stating that his fundamental right to property was being violated. The question before the Supreme Court was whether the Parliament had the ability to revise the Fundamental Rights mentioned under Part III of the Constitution of India or not. The Court ruled that Parliament does not have the power to curtail any of the Fundamental Rights in the Constitution.

Kesavananda Bharati v. State of Kerala (1973)

In this case, the aforementioned Golaknath case was reviewed. It was held by the Court that the “basic structure” of the Constitution cannot be amended. The Supreme Court through its 7:6 judgement had ruled that the Parliament has no powers or the authority to alter the basic structure of the constitution.

Indira Nehru Gandhi v. Raj Narain (1975)

This case dealt with election disputes involving the then Prime Minister Indira Gandhi along with the Purpose of the 39th Amendment of the Constitution. The primary question involved in the case was of the validity of clause (4) of the 39th Constitutional Amendment Act, 1975. The Supreme Court, in this case, added certain features as ‘Basic Features’ to the already existing list of basic features laid down in the Kesavananda Bharati case, such as the rule of law, democracy and judicial review.

Maneka Gandhi v. Union of India (1978)

In this case, Maneka Gandhi’s passport was impounded in ‘public interest’. The Government refused to provide any details in the interests of the general public when the reasons for impounding her passport were asked. As a result, Maneka Gandhi filed a writ petition under Article 32 stating that the action of the Government violated Articles 14, 19, and 21 of the Constitution. The Government responded by stating that her passport was impounded because her presence was likely to be required regarding certain legal proceedings before a ‘Commission of Inquiry’. The Supreme Court held that a ‘procedure’ under Article 21 of the Constitution must be free from arbitrary, unfair, oppressive, or unreasonable aspects.

Minerva Mills Ltd. and Ors. v. Union Of India and Ors. (1980)

In this case, the Supreme Court provided certain clarifications on the interpretation of the basic structure doctrine. The Court held that the power of the Parliament is limited in amending the Constitution. Therefore, the parliament cannot exercise such limited power to grant itself an unlimited authority of amending the Constitution. Thus, the Parliament cannot take away the Fundamental Rights of individuals. The judgement in this case also struck down Clause 4 and 5 of the Forty-second Amendment Act, 1976 enacted during the Emergency imposed by Prime Minister Indira Gandhi.

Conclusion:

Fundamental Rights enshrined in the Indian Constitution are like a guarantee which means as long as they exist in the Indian Constitution, democracy will prevail and all Indian citizens can be assured of the protection of their basic rights. Such civil liberties prevail over any other law of the land. Fundamental rights are essential for the comprehensive progress of the people and the nation.

References:

Admin

PDF 📄

CRITICAL ANALYSIS OF FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION

Published by Admin on September 5, 2023September 5, 2023