FUNDAMENTAL RIGHTS AND DUTIES

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This article is written by Burdith Ann Pereira of 3^rd semester of the University of Law College, Gauhati University, Guwahati, Assam, an intern under Legal Vidhiya

ABSTRACT

The article aims at throwing light on the importance of Fundamental Rights that are mentioned in the Indian Constitution and how it safeguards the basic rights every human has and should be ensured. It also mentions how fundamental rights cannot be violated even by any forms or organs of government. Fundamental Rights of every citizen shall be protected and if by any chance violated should be immediately kept on check. The article also draws focus on Fundamental Duties which are morally important to be followed by each law-abiding citizen for the love and respect of their nation.

Keywords: Fundamental Rights, Fundamental Duties, Supreme Court, Union of India, Life & Liberty, Freedom, Equality,

INTRODUCTION

The Constitution of India is regarded as the Magna Carta of India. Fundamental Rights are listed in the Part III of the Indian Constitution. The main aim for adding fundamental rights to the Indian Constitution was to create a free and fare society and for citizens to have access to basic rights such as right to life, liberty, freedom of speech, freedom of faith and so on. Fundamental Rights were interpreted as essential to protect the life and liberties of the people against the encroachment of the power delegated by them to their government. However, there are some limitations upon the powers of the Government, legislative as well as the executive, as they are essential for the preservation of private and public rights.

The significance of fundamental rights has been seen in the historic judgement of Maneka Gandhi v. Union Of India (1978), were the Supreme Court expanded the interpretation of Article 21 of the Indian Constitution and overruled the case of A.K. Gopalan v. State of Madras (1950), which had implied the exclusiveness of fundamental rights and established relationship between Articles 14, 19 and 21 of the Constitution holding that a law depriving a person from “personal liberty” must not violate any of them. Yet in this case the court held that a “procedure” under Article 21 of the constitution cannot be arbitrary, unfair, oppressive or unreasonable.

The Fundamental Rights as incorporated in the Indian Constitution are as follows:

Right to Equality (Articles 14-18)
Right to Freedom (Articles 19-22)
Right against Exploitation (Articles 23-24)
Right to Religion (Articles 25-28)
Right to Constitutional Remedies (Articles 32-35)

Earlier Right to Property, too was guaranteed by Article 19(1)(f) and Article 31 of the Indian Constitution but it had been abolished by the 44^th Amendment and has been hence, omitted.

Right to Equality (Articles 14-18)

The Right to Equality is guaranteed under Article 14 to 18 of the Indian Constitution. Article 14 lays emphasis on prohibition of discrimination between persons, it embodies the idea of equality expressed in the Preamble, which is considered to be one of the pillars of the constitution. Articles 15, 16, 17 and 18 lay down basic application of rules laid down in Article 14. Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth is specified in Article 15. Equal opportunities related to matters of public employment is guaranteed under Article 16. Articles 17 & 18 abolishes “untouchability” and “title”.

Article 14: Equality Before the Law

Article 14 of the Indian Constitution reads as under:

“The State shall not deny to any person equality before the law or the equal protection of laws within the territory of India”

Two expressions have been used in Article 14 i.e., “equality before the law” and “equal protection of laws” the origin of the first expression is of English origin and the second expression has been taken from the American Constitution. These expressions have been used to aim to establish “equality of status”.

Equality before the law implies absolute equality which means no special privileges shall be given on the grounds of birth, creed or any grounds respectively. Equality before law means that no one is above the law and that every individual is subjected to the jurisdiction of ordinary courts with no discrimination based on any grounds. The protection of Article 14 extends to both citizens and non-citizens.

Article 15: No discrimination on the Grounds of Religion, Race, Caste, etc.

Article 15(1) states that no discrimination shall be done on the grounds of only religion, caste, race, sex or any of them. The word “discrimination” refers to distinguishing between unfavourable from others. According to Article 15 citizens shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and palaces of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

Article 16: Article 16 of the Indian Constitution deals with the fact that no discrimination shall be made with regards to giving equal opportunity to citizens in case on employment to any post under the state on the grounds of religion, caste, race, sex, descent, place of birth, residence or any of these. However, the article shall not prevent the State from making any provision for the reservation of appointments or posts in favour of any citizens of backward classes.
Article 17: Article 17 abolishes the vicious social evil of “Untouchability”. In People’s Union for Democratic Rights v. Union of India (1958), the court held that the Fundamental Right are applicable against private individuals too and that it is the duty of the state to ensure that these fundamental rights are not violated.
Article 18: Article 18 abolishes titles. A military or academic distinction, shall be excluded though. Citizens of India shall not accept any title from any foreign State, or accept any present, emolument, or office of any kind from or under any foreign State without the consent of the President.

Right to Freedom (Articles 19-22)

Right to Freedom is guaranteed under Article 19 to 22. Liberty is the most basic human right that every individual needs to confer. These articles act as the backbone of the constitution.

Article 19: Article 19 ensures Freedom of Speech and Expression, Freedom of Assembly, Freedom to form Associations or Union or Co-operatives Societies, Freedom of movement, Freedom to reside and to settle, Freedom of profession, occupation, trade or business. Earlier Right to Property was also ensured under this article but it was omitted by the 44nd Amendment Act of 1978.
Article 20: Article 20 ensures citizens protection in case of any offences. A person shall be convicted only if violation of the law in force at the time is done. A person shall not be prosecuted and punished for the same offence more than once. A person accused of any offence shall not be compelled to be a witness against themselves.
Article 21: Article 21 provides Protection of life and Personal Liberty and ensures that no person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 22: Article 22 ensures protection against arrest and detention. It states that a person who is arrested shall not be detained and taken into custody without being informed and shall not be denied the right to consult or to be defended by a legal practitioner of his choice. A person who is arrested shall be shall be produced before the nearest magistrate within a period of twenty-four hours of the arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate. However, these aren’t applicable to persons who are arrested under Preventive Detention law.

Right against Exploitation (Articles 23-24)

Article 23: Article 23 cites laws about prohibition of human trafficking and forced labour. This article declares human trafficking and any forms of forced labour as a prohibited and punishable offence. It also states that the “State” shall not make any discrimination on the grounds of on only of religion, race, caste or class or any of them while ensuring imposition of this article.
Article 24:This Article ensures prohibition of employment of children, in factories and hazardous work, below the age of 14 years. In M.C. Mehta v. State of Tamil Nadu (1997), the Supreme Court in a PIL held that no child below the age of 14 years shall be employed in hazardous industries, mines or other activities and that the offending employer compensate each child with a sum of Rs. 20,000 deposited in a Fund which was sent to the Child Labour Rehabilitation Welfare Fund directed by the Supreme Court to be set up.

Right to Religion (Articles 25-28)

The term “religion” is not defined in the Constitution yet every time the word “religion” is talked about, as an aware citizen, we directly relate it to the word “secularism”. The word “Secular” was added to the preamble in the 42^nd Amendment of 1976. In India the word “secular” does not refer to the State being irreligious or atheist, it only means that the State shall protect the rights of all religions but shall interfere with none. It shall remain neutral in matters of religion. The protection of religious rights of the citizen of India is ensured under Articles 25 to 28.

Article 25: Article 25 ensures Freedom of conscience and free profession, practice and propagation of religion. The freedom of “conscience” refers to a person having the absolute freedom to take up any religion of his own choice without any pressure. To “profess” a religion refers to declare freely and openly one’s faith and belief. To “practice” a religion refers to perform religious rites, duties or rituals with complete independence. To “propagate” one’s religion refers to the freedom given to spread the views of one’s own religion but not to forcefully convert a person into one’s own religion. A landmark case related to Article 25 is that of Bijoe Emmanuel v. State of Kerala (1986), where the Supreme Court reversed the High Court decision and held that no one can be compelled to sing the National Anthem “if he has genuine conscientious religious objection” and that India does not have any legal obligation of singing the National Anthem and that the right under Article 25(1) cannot be regulated by executive instructions which have no force of law.
Article 26: Article 26 promotes freedom to manage religious affairs and that every religious denomination or any section thereof shall have the right to-establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law. In the case of Bramchari Sidehswar Sahai v. State of West Bengal (1995), popularly known as the Ramkrishna Mission case, the Supreme Court held that the followers of Ram Krishna can be regarded as religious denomination within Hindu religion as they satisfy the test regarding “religious denominations” therefore be entitled to confer fundamental rights ensured under Article 26 of the constitution.
Article 27: Article 27 guarantees freedom from taxes for promotion of any particular religion. This article ensures that no individual shall pay taxes for the promotion or maintenance of any particular religion or religious denomination. The article also prohibits levying tax in the name of religion. This Article perfectly matches the agenda of neutralism of the State with regards to religion and reflects the Secular nature of the State.
Article 28: Under Article 28 prohibition of religious instructions in state aided educational institutions is ensured.

Cultural and Educational Rights (Articles 29-30)

Article 29: This Article ensures the protection of minorities with regards to their distinct language, script or culture of their own and ensures the right to conserve the same. It also ensures them no denial to educational institutions maintained by the State or receiving aid out of State funds on the grounds of only religion, race, caste, language or any of them.
Article 30: Under Article 30 the Right of minorities to establish and administer educational institutions is protected. The Article ensures that the State shall not discriminate in granting aid to educational institutions, on the ground that it is under the management of a minority, whether based on religion or language.

Right to Constitutional Remedies (Articles 32-35)

In simple words, the Right to Constitutional Remedies is present in the constitution in order to ensure citizens that in case any right of theirs is violated they can move to the court, this Right is present to ensure equality before the law and protection of laws.

Article 32: Under this Article the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights is ensured. The Supreme Court is given the power to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights ensured.
Article 33: Article 33 empowers the Parliament to make laws that restrict the application of fundamental rights to a specific category of people including members of the armed forces, members of the members of the Forces charged with the maintenance of public order, any individual employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation.
Article 34: Article 34 empowers the Parliament to remunerate any government official or any other individual for any act done by in connection with the maintenance or restoration of order in any area where martial law was in force.
Article 35: Article 35 gives Parliament the exclusive power to make laws relating to Articles 16 (3), 32 (3), 33 and 34. Further, this Article enables the Parliament to prescribe punishment to offences related to the fundamental rights part.

Fundamental Duties

The Fundamental duties listed in the Indian Constitution was added in the 42^nd Amendment of 1976. It was added in Part IV-A under one Article 51-A. Initially it had been listed with 10 Fundamental Duties but the 11^th one was added by the 86^th Amendment Act in 2002. Article 51-A provides that it shall be the duty of every citizen of India –

To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
To cherish and follow the noble ideals which inspired our national struggle for freedom.
To uphold and protect the sovereignty, unity and integrity of India.
To defend the country and render national service when called upon to do so.
To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
To value and preserve the rich heritage of our composite culture.
To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
To develop the scientific temper, humanism and the spirit of inquiry and reform.
To safeguard public property and to abjure violence.
To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavours and achievements.
who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

The Fundamental Duties, however, aim at acting as a constant reminder to every citizen that they need to observe and follow some basic norms of a democratic behaviour and conduct. Also, these Fundamental Duties incorporated in the Constitution by the 42^nd Amendment shall be enforceable by law.

Case Laws:

Maneka Gandhi v. Union of India (1978)
A.K. Gopalan v. State of Madras (1950)
People’s Union for Democratic Rights v. Union of India (1958)
M.C. Mehta v. State of Tamil Nadu (1997)
Bijoe Emmanuel v. State of Kerala (1986)
Bramchari Sidehswar Sahai v. State of West Bengal (1995)

Conclusion

The inclusion of the Chapter of Fundamental Rights in the Constitution is in regards to the trend of a modern democratic thought, the idea of its existence being an essential condition required for a free and fair society. The Fundamental Rights were introduced to ensure every citizen is provided with the basic human right that every individual deserve for their existence and in order for these rights to be adequately ensured and not violated the Constitution provides proper provisions and also provisions in case any of these is violated. The Chapter of Fundamental Duties is, however, included in order to make the citizens of our nation morally aware and abide by those duties in order to bring about a feeling of nationalism and a feeling of being a responsible citizen of the nation.

References

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