FUNDAMENTAL RIGHTS

This article is written by Anjali Singh of 7^th Semester of BA LLB (Hons.) Criminal Law of UPES, DEHRADUN

ABSTRACT

The essential liberties that Indian citizens are given in the constitution are discussed in this research paper. The most fundamental rights, which are necessary to sustain human dignity, are known as fundamental rights. By offering citizens a set of rights that the government cannot take away, this right upholds the natural law concept that no one is above the law. The fundamental rights are outlined in Chapter III of the constitution and include several sweeping rights, including the rights to equality (Articles 14–18), to liberty (Articles 19–22), to be free from exploitation (Articles 23–24), to freedom of religion (Articles 25–28), to culture and education (Articles 29–30), and to constitutional remedies (Articles 32–35). The cornerstone has always been upholding basic rights. People can petition the Supreme Court for the protection of these freedoms by using writs such as habeas corpus, quo warranto, mandamus, prohibition, and certiorari.

Keyword- Constitution, Fundamental Rights, Citizens, Remedies, Natural Law

INTRODUCTION

The 1950 Indian Constitution includes several clauses that guarantee all Indian people’s fundamental human rights. Six fundamental rights are protected from all forms of discrimination, including that based on race, gender, and other factors. If these rights are violated, persons may assert these rights. Part III of the Indian Constitution, commonly referred to as the “Magna Carta” of the Indian Constitution, contains provisions for fundamental rights. We shall learn more about the essential rights guaranteed by the Indian Constitution through this essay.

SCHEDULE OF FUNDAMENTAL RIGHTS

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

The Indian Constitution outlines six fundamental rights, which are as follows:

• Equal Rights (Articles 14–18)
• Freedom of Speech (Articles 19–22)
• Right not to be exploited (Articles 23–24)
• Religion-related freedom rights (Articles 25–28)
• Rights to Culture and Education (Articles 29–30)
• Article 32: Right to Constitutional Remedies

FEATURES OF FUNDAMENTAL RIGHTS THAT ARE SALIENT

Among the characteristics of the Fundamental Rights guaranteed by the Indian Constitution are the following:

The following six fundamental rights are outlined in the Indian Constitution:

• Equal Rights (Articles 14–18)
• Freedom of Speech (Articles 19–22)
• Right not to be exploited (Articles 23–24)
• Religion-related freedom rights (Articles 25–28)
• Rights to Culture and Education (Articles 29–30)
• Article 32: Right to Constitutional Remedies

Fundamental rights are guaranteed by and protected by the Indian Constitution.

Based on adequate justification, the Parliament has the power and authority to impose temporary restrictions on fundamental rights. The judge will assess the reasonableness of the justifications used by the parliament to curtail fundamental rights. As a result, fundamental rights are neither unalienable nor sacred.

The rights protected by Articles 20 and 21 will continue to apply even if Fundamental Rights are suspended due to a national emergency. Fundamental rights may be curtailed everywhere in Indian territory if there is military control.

According to the Indian Constitution, if a person’s fundamental rights are violated or curtailed, they can apply directly to the Supreme Court of India for redress. As a result, the fundamental rights are justified.

IMPORTANCE OF FUNDAMENTAL RIGHTS

The secularism and democratic system in India are supported by fundamental rights. They create the necessary conditions for a person’s physical and moral safety, promoting social fairness and equality. They also stand up for the rights of people of color and other marginalized groups in society. Individual liberty is also protected by fundamental rights. These rights establish the rule of law, which keeps the power of the government from being unchecked.

AMENDABILITY OF FUNDAMENTAL RIGHTS

In the case of Kesavananda Bharati, (1974), the Supreme Court ruled that, according to the “Doctrine of Basic Structure” of the Constitution, the Parliament may change any element of the Constitution, including all fundamental rights.

The Supreme Court did not provide a clear definition of what the Constitution’s essential structure is nor did it provide an entire enumeration of its components. However, the Apex Court ruled that only additions, not deletions, would be permitted to the fundamental structure. The Supreme Court has ruled in a string of decisions that the following clauses form a component of the Constitution’s fundamental framework:

• Independence of India
• Democracy
• Secularism
• Republic
• Democratic elections
• Legal evaluation, etc.

SEVERABILITY DOCTRINE

The “Doctrine of Separability” is another name for the severability doctrine. It safeguards our fundamental rights because Article 13(1) of the Constitution states that while all laws passed in India before the adoption of the Constitution shall remain in effect, the extent to which they violate fundamental rights will result in their invalidation. Simply put, just the portion of the law that conflicts with the Fundamental Rights will be deemed defective or illegal, not the entire law. 

DESCRIPTION OF ECLIPSE

As its name suggests, the doctrine of the eclipse is used when a law or an act disregards or is incompatible with fundamental rights. It is used when one component of the law predominately overshadows the other provision. In the context of this concept, the law or act that is in conflict is overridden by Fundamental Rights, rendering it unenforceable but not void from the start. If the restrictions imposed by the Fundamental Rights are removed, such a law or act may be enacted once more.

Equality rights

• Equality before the Law, Article 14
• According to Article 14, everyone is treated equally by the law.
• According to this article, all Indian citizens shall be treated equally in front of the law.
• The aforementioned Article further declares that everyone is equally protected by the law.
• The law must apply equally to all parties in similar situations.

Article 15 – Discrimination is prohibited

• Discrimination of any form is forbidden under this clause of the Indian Constitution. If any citizen is subject to any handicap, restriction, liability, or condition regarding – Access to Public Places based on religion, race, place of birth, caste, or gender;
• The aforementioned Article also states that special provisions may be made for women, children, and members of the underprivileged classes despite this Article. Examples of such special provisions include the use of public properties like tanks, ghats, wells, etc. that are maintained by the government or that are intended for use by the general public.

Equal Opportunity in Public Employment under Article 16

• All citizens have access to equal employment possibilities in the State Service because of this constitutional mandate.
• No citizen will be subjected to discrimination in appointment to public service based on religion, caste, race, gender, place of birth, residency, or descent.
• To provide specific measures for the underprivileged classes, exceptions to the aforementioned Article may be granted.

Abolition of Untouchability, Article 17

• The practice of untouchability is expressly forbidden under the aforementioned clause.
• Untouchability has been eliminated in all forms by this article.
• Untouchability is deemed a crime if it causes any harm or causes disagreement.

Article 18 abolishes titles.

• Titles are eliminated by the mentioned Article. It declares that no titles may be granted by the State. However, titles with an intellectual or military focus are permitted.
• The aforementioned article also forbids Indian nationals from taking any form of title from a foreign nation. This article also abolishes the titles such as Rai Bahadur and Khan Bahadur that were given forth by the previous British administration.
• Military distinctions like the Ashok Chakra and Param Vir Chakra, as well as awards like the Padma Shri, Padma Bhushan, Padma Vibhushan, and Bharat Ratna, are excluded from this category.

FREEDOM RIGHT

The fundamental right to freedom is covered by the following constitutional articles: Article 19

The following six liberties are protected by Article 19. The list is as follows:

Article 19(1)(a) – Expression and freedom of speech

• Every Indian citizen is guaranteed freedom of speech and expression under this clause. The law may, however, set limitations on the extent of this freedom taking into account the needs of the nation’s integrity, security, and sovereignty. Friendly relations with other countries, upholding public order, refraining from inciting others to commit crimes, defamation, and contempt of court are further exclusions.

Freedom to gather under Article 19(1)(b)

• This clause guarantees everyone’s right to peaceful assembly without the use of force. However, to preserve public order and the sovereignty and integrity of the nation, appropriate restrictions may be imposed.
• Freedom to form groups, unions, or cooperative societies is guaranteed by Article 19(1)(c).
• This clause permits Indian people to establish groups, unions, or cooperative societies, but with restrictions that take into account the preservation of public order and the integrity and security of the nation.

Article 19(1)(d) – Right to freedom of movement

• According to this clause, Indian people are free to travel wherever on Indian soil. To protect the interests of the Scheduled Tribes or for reasons of safety and public order, this freedom may be limited.

Article 19(1)(e) – Residence freedom

• According to this clause, all Indian nationals are entitled to the right to reside wherever in the nation. To protect the interests of the Scheduled Tribes or for reasons of safety and public order, this freedom may be limited.

Article 19(1)(g) – Professional freedom

• All citizens are granted the freedom to engage in any trade, profession, or occupation as long as it is legal and moral to do so, according to this clause. Additionally, many law does not preclude the State from passing legislation governing the technical or professional credentials necessary to engage in the profession or trade.

Protection of citizens under Article 20 in the event of conviction for crimes

• This clause focuses on protecting citizens from being found guilty of crimes. The restriction against self-incrimination, double jeopardy, and retroactive criminal law are mentioned as three different types of protections for the individual against the State.

Right to Life under Article 21

• This clause states that the State may not take away someone’s life or personal freedom unless it follows the legal process. A person must live a dignified life, according to the concept of the right to life. The aforementioned article has a very broad range, and over the years, several interpretations have been made of it.

Article 21A: Children ages 6 to 14 are entitled to free education.

• With the passage of the 86th Constitutional Amendment Act in 2002, this clause was added to the Constitution. It states that all children between the ages of 6 and 14 must get free and required education from the State.

Protection from arrest and detention in certain situations is provided by Article 22.

• Both citizens and non-citizens are included in the scope of this law. In the event of an arrest, it offers persons specific procedural protections. It is important to remember that this clause does not represent basic protection from imprisonment and arrest. This privilege tries to stop arbitrary detention and arrest. Enemy aliens and those detained under preventive detention rules are excluded from this provision. Additionally, this article offers the following:

Section 22(1)

• By this clause, everybody who is detained must be told why they were arrested. Additionally, they must be permitted to speak with a lawyer.

Section 22(2)

• According to this clause, the person who has been detained must appear before a judge within 24 hours of their arrest. Additionally, according to this clause, no one who has been arrested may be kept in custody beyond the time frame set by the judicial magistrate.

RIGHTS AGAINST FRAUDULENCE

Article 23 – Prohibition for Forced Labour & Human Trafficking

This clause is further broken down into the following sections:

Article 23(1) – This clause forbids the use of “begar” and other similar types of forced labor, and any breach of this provision is illegal and punishable by law.

• Nothing in this article prohibits the state from requiring mandatory service for public reasons, and when doing so, the state is prohibited from discriminating based on religion, race, caste, or class, individually or collectively.
• Citizens are protected by this clause both from the State and from private individuals. The Suppression of Immoral Traffic in Women and Girls Act of 1956 and the Bonded Labour System (Abolition) Act of 1976 are two pieces of legislation that the Parliament passed about this clause.

Article 24 – Children may not work in factories or other places.

• According to this clause, no kid under the age of fourteen may be hired to work in a factory, mine, or any other type of hazardous employment. Regardless of any exceptions, this provision forbids the employment of minors under the age of 14 in any dangerous industries, factories, or mines. However, it is permitted to employ kids in non-hazardous jobs. The Factories Act of 1948, the Mines Act of 1952, the Child Labour (Prohibition and Regulation) Act of 1986, the Child Labour (Prohibition & Regulation) Amendment Act of 2016, and other legislation were passed by the Parliament regarding this issue.

Right to Religious Freedom

Article 25 – Conscience-freedom and free exercise, expression, and propagation of religion

• All citizens are guaranteed by this clause their right to freedom of conscience as well as the freedom to proclaim, practice, and spread their religion. However, the aforementioned liberties are constrained by morality, public morality, and health. The State may enact legislation to control or restrict financial, economic, political, or other secular activities related to religious practice, as is further stated in this article. Furthermore, they also permit social welfare and the opening of public Hindu religious institutions for all classes and sections of Hindus.

Article 26 – The right to freely conduct religious concerns

• According to this clause, every religious sect has the following rights, subject to morality, public health, and public order: the right to establish and operate institutions for religious and philanthropic purposes.
• the freedom to conduct its business as it sees fit regarding religion.
• the power to purchase real estate, both mobile and immovable.
• the authority to manage such property legally.

Freedom under Article 27 to pay taxes to advance any particular religion

• By this clause, no taxes shall be levied on funds that are specifically used to support and/or advance a particular religion or religious denomination.

Regarding the freedom to attend religious instruction or worship in specific educational institutions, see Article 28.

• This clause permits the creation of educational institutions that are run by religious organizations to spread religious instruction.

RIGHTS INVOLVING CULTURE AND EDUCATION

Article 29: Protection of Minority Interests

• The Constitution’s clause attempts to safeguard the rights of marginalized populations.
• According to Article 29(1), any group of Indian citizens who have a distinctive culture, language, or writing system have the right to preserve those aspects of their identity.
• Article 29(2) states that the state is prohibited from refusing anyone entrance to educational institutions that it maintains or that receive funding from it based on their race, religion, caste, language, or any combination of these.

Article 30 – Minorities Have the Right to Organise and Run Educational Institutions

• Minorities are given the freedom to design and direct the administration of their educational institutions. The aforementioned provision is therefore also known as the “Charter of Education Rights.”

Section 30(1)

• This provision guarantees the right of all linguistic and religious minorities to establish and manage educational institutions of their choice.
• Article 30(2) According to this provision, the state is forbidden from discriminating against educational institutions because they are operated by members of a minority group, regardless of their religion or language, while giving them financial aid.

ARTICLE-32 RIGHT TO JUSTICE UNDER THE CONSTITUTION

The Constitution stipulates particular remedies if a citizen’s fundamental rights are violated. No one’s rights may be curtailed or infringed upon by the State for whatever reason. The party that has been damaged has the right to sue if these rights are violated. They can even directly appeal to the Indian Supreme Court, which has the power to issue writs to compel the observance of fundamental rights.

The court can issue any one of the following five types of writs::

Habeas Corpus

• Latin’s habeas corpus means “to have the body of.” This writ grants the court the authority to inquire of any person being held regarding the legality of their detention. 

Certiorari

• The meaning of the word “Certiorari” is “to be certified”. A case that has already been tried in a lower court gets reviewed by a higher court through this writ. It is used to request judicial review of a ruling made by a court or other government body.

Prohibition

• A court may issue a “Prohibition” writ to limit or forbid lesser courts, tribunals, and other quasi-judicial bodies from acting more than their lawful power. In contrast to the writ of Mandamus, it is used to monitor inactivity.

Mandamus

• Mandamus is Latin for “We command.” The court uses this writ to order a public employee who has neglected or refused to perform his duties to get back to work. Additionally, a public body, a lower court, a business, a tribunal, or a government may be targeted by a writ of mandamus.

Quo Warranto

• “By what authority or warrant,” is what the phrase “Quo Warranto” means. This writ is used by the Supreme Court or other high courts to prevent a person from unlawfully taking over a public position. The court may investigate the validity of a person’s claim to a public office under the Quo Warranto writ.

OVERVIEW OF LANDMARK CASES RELATING TO FUNDAMENTAL RIGHTS

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

• A.K. Gopalan invoked the writ of habeas corpus in this case by submitting a petition under Article 32 challenging his incarceration. He was afterward forbidden from revealing the reasons he had been arrested because Section 14 of the Preventive Detention Act of 1950 forbade such disclosure in court. He argued that such detention violates Articles 14, 19, and 21 of the Constitution as a result and that the Act’s provisions also do so in violation of Article 22.
• The Supreme Court of India rendered a historic decision in this case, holding that Article 21 of the Constitution does not require Indian courts to follow the due process of law norm. The Preventive Imprisonment Act, of 1950 was also upheld by the Hon’ble Court, except for Section 14, which stated that the detainee’s reasons for imprisonment and any arguments he makes against them are not to be divulged in court.

Kesavananda Bharati v. State of Kerala (1973)

• The aforementioned Golaknath case was examined in this instance. The Court ruled that the Constitution’s “basic structure” cannot be changed. The Supreme Court found in its 7:6 decision that the Parliament lacks the power or jurisdiction to change the fundamental framework of the Constitution.

Shankari Prasad v. Union of India (1952)

• In this case, the First Amendment of 1951, which restricted the property right, was contested as being constitutional. In this case, it was argued that Article 13 does not permit revisions to Articles 31A and 31B that restrict citizens’ fundamental rights. The Supreme Court ruled that amending fundamental rights is likewise within the purview of the ability to modify the Constitution under Article 368.

Golak Nath v. State of Punjab (1967)

• Golak Nath and his family in this case asserted ownership of more than 500 portions of land in Punjab. In the meantime, the state legislature passed the Punjab Securities and Land Tenures Act, of 1950, which limited Golak Nath and his family to keep no more than 30 sections of land. Golak Nath as a result filed a writ petition under Article 32 of the Indian Constitution challenging the legality of the statute and asserting that his fundamental property right was being violated. The Supreme Court had to decide whether or not the Parliament may change the Fundamental Rights outlined in Part III of the Indian Constitution. According to the Court, Parliament lacks the authority to restrict any of the Constitution’s Fundamental Rights.

Maneka Gandhi v. Union of India (1978)

• Maneka Gandhi’s passport was seized in this situation for the sake of the “public interest.” When the government was questioned about the circumstances surrounding the confiscation of her passport, they declined to answer any questions in the public’s best interest. Maneka Gandhi thus asserted that the government’s behavior violated Articles 14, 19, and 21 of the Constitution in a writ petition under Article 32. Many a time government has elaborated by saying her passport had been seized since it was anticipated that she has to need certain court hearings before the Commission of Inquiry which was elaborated by the Supreme Court, an Article 21 procedure that should be devoid of the elements of arbitrariness, unfairness, oppression, or unreasonableness.

CONCLUSION

The fundamental rights guaranteed by the Indian Constitution serve as a guarantee that as long as democracy prevails and everyone in India is guaranteed the preservation of their fundamental rights. These civic liberties have precedence over all other laws of the country. The full advancement of the people and the country depends on fundamental rights.

REFERENCE

• https://en.wikipedia.org/wiki/Fundamental_rights
• https://byjus.com/free-ias-prep/fundamental-rights/
• https://www.clearias.com/fundamental-rights/
• https://www.drishtiias.com/to-the-points/Paper2/fundamental-rights-part-1