Fundamental rights are the rights that have been incorporated in the Constitution and are justifiable in court of law.
They have been modeled on the basis of U.S. Constitution and are hailed as “Cornerstone of the Indian Constitution.” It is to be noted that though all fundamental rights are human rights but not the vice-versa. Most of these rights are worded negative and directed against the state. Some of the rights viz, Article 17 is enforceable against the private individuals as well.
2. History of Demand for Fundamental Right:
i. Swaraj Bill (1895) by Lokmanya Tilak.
ii. Congress Resolution in the period of first world war.
iii. Commonwealth of India Bill by Annie Besant.
iv. Madras Resolution of Congress (1927).
v. Nehru Committee 1928.
vi. Karachi Session of Congress (1931) adopted a Resolution on Fundamental Right.
vii. Sapru Committee Report (1945) made distinction between -justifiable and non justifiable rights.
3. Chief Characteristics of Fundamental Rights:
1. Integral part of the Constitution cannot be altered or taken away by ordinary legislation.
2. They are not absolute. ‘Reasonable’ restrictions can be imposed in view of sovereignty and integrity of the country or alike on certain grounds.
3. Though most of the rights are worded negatively some are positive rights. For example
Negative: Article 18
Positive: Article 16
4. They are justifiable. But, chief feature is that part III dealing with Fundamental Rights is guarantor as well as protector of Fundamental Rights. A remedy under Article 32 is given for enforcement of a Fundamental Rights.
4. Classification of Fundamental Rights:
Fundamental Rights are classified as
1. Right to Equality
2. Right to Freedom
3. Right against Exploitation
4. Right to freedom of Religion
5. Cultural and educational rights
6. Right to Constitutional Remedies
The Original Constitution provided for the Right to property but it has been abolished by the 44th Amendment.
Recently, Right to primary education has been included in Part three under Article 21 A.
1. Right to Equality:
Article 14 to 18 deals with the Right to Equality.
Article 14, says that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
i. Equality before Law:
It is an expression of English common law and is somewhat negative concept implying absence of special privilege on grounds of birth, caste, creed, colour or sex.
Equality before law is second corollary from Dicey’s concept of the “rule of law.” It implies that no one is above the law of land. It is the law no one is supreme. However, exceptions are granted to the office of President and Governor.
ii. Equal Protection of the Law:
It is of American origin and is a more positive concept implying equality of treatment in equal circumstances. It provides for protective discrimination.
Article 15(1), says “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Besides these 5 grounds, state can prescribe guidelines say; for job in a particular region.
Article 15(2) says “No citizen can be denied access to public places only on the ground of caste sex, race, religion, and place of birth or any of them.”
This Article is a Corollary to Article 17 (against Untouchability).
Article 15(3) says that “nothing in this article shall prevent the state from making special provisions for women and children.”
Article 15(4) says that “Nothing in this or in clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and -educationally backward classes of society or for the SCs and STs.” This Article was introduced by 1st Amendment.
Article 16(1) provides for equality of opportunity in public employment.
Article 16(2) prohibits discrimination on grounds only of religion, race, sex, and descent place of birth or any of them in matters relating to public employment.
Article 16(3) provides for residential qualification in certain category of public employment.
Article 16(4) provides for reservation of seats for the backward classes of citizens in public employment if they are inadequately represented.
Article 16(4A) provides for reservation in promotion for SCs and STs in Government service.
Article 16(5) provides for reservation of seats to officer connected with a religious or dominated institution for members professing the particular religion or belonging to the particular denomination to which the denomination relates.
Article 17 abolishes ‘untouchability’ and makes its practice, an offence punishable under the law.
In view of this, an act was made by Parliament. Untouchability (offences) Act 1955, which is renamed as Civil Rights Protection Act 1976
Article 18 abolishes titles and prevents state from conferring title to any person.
2. Right to Freedom:
Article 19 to 22 deals with the Right to Freedom.
Article 19(1) includes six freedoms.
(a) Freedom of Speech and Expression.
(b) Freedom of Assembly.
(c) Freedom of Association,
(d) Freedom of Movement.
(e) Freedom of Residence and settlement.
(f) Freedom of profession, occupation, trade and business.
(g) Included freedom ‘to acquire hold and dispose of property’ which has been abolished by the 44th Amendment.
Freedom of the Press is included under Article 19(l) (a).
Article 20 provides protection against arbitrary and excessive punishment to any person who commits an offence. It cannot be suspended during the period of emergency. Article 21 guarantees right to life and personal liberty.
It says that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” It is the most important Article which has been hailed as backbone of Part III and Part IV of the Constitution by the Supreme Court. It can never be suspended.
Article 21 is the bedrock from which many rights have been inferred by the Supreme Court.
Article 22 provides protection against arbitrary arrest and (detention. It includes
i. Informing the detainee of the cause of his arrest.
ii. Allowing him to consult and be defended by a legal practitioner of his choice.
iii. Producing him before a nearest magistrate within the period of 24 hours.
3. Right against Exploitation:
There are two Articles: 23 and 24 under it.
Article 23: it seeks to ban traffic in human beings, beggar or any form of forced Labour. Article 24 it prohibits employment of children below the age of 14 years in any factory or mine or any hazardous condition.
4. Right to freedom of Religion:
It includes four rights under Article 25, 26, 27, and 28.
Article 25 entitles everyone the freedom of conscience and the right to process practice and propagate a religion of one’s choice.
Article 26 grants right to religious denominations to
i. Establish institutions for practice or propagating their religion.
ii. Manage its own affairs in matters of religion.
iii. Passes and dispose of their immovable property.
Article 27 provides for exempting religious institutions from paying taxes to state for religious purposes.
Article 28 deals with religious instruction to be imparted in educational institutions.
i. No religious instruction can be provided in institutions owned and administered by the state.
ii. Religious instruction may be imparted but pupil may not be compelled to attend them in institutions recognized by the state and receiving aid out of state funds.
iii. Religious instructions can be imparted and people can be compelled to attend them in educational institutions administered by state established by a religious endowment or religious trust.
5. Cultural and Educational Rights:
It includes Articles 29 and 30.
Article 29 provides for criteria for determination of minority.
Article 30 provides that all minorities shall have the right to establish and administer educational institution of their choice.
6. Right to Constitutional Remedies:
It has only one Article 32. In the words of Dr. Ambedkar Article 32 is fundamental of all Fundamental Rights.
This right makes it constitutionally obligatory on the part of the Supreme Court to enforce the Fundamental Rights. It includes five kinds of writ jurisdiction adopted from England.
i. Habeas Corpus
v. Quo Warranto
“Habeas Corpus” is in the nature of an order calling upon the person who has detained another to produce the latter before the court. It literally means ‘to have a body.’ In addition to aggrieved person; other individual or organization can head for its enforcement.
“Mandamus” means command. It is issued to command a person or a body to do what is his or its duty to do. It is a discretionary remedy at the hands of HC and an aggrieved person can approach the court. It can be issued against public offices as well as inferior courts and judicial bodies.
“Prohibition” issued to an inferior court to keep within limits of their jurisdiction. It is a matter of right for which only aggrieved person can approach the Court.
“Quo Warranto” issued to enquire into the legality of the claim of a public office. It asks ‘What is your authority.’ Its intention is to see that unlawful claimant does not usurp a public office.
“Certiorari” issued to quash orders passed in excess of jurisdiction-of a court.
A brief survey on rights enshrined in Part III of Indian constitution reflects the concern for values of liberty, equality and fraternity.
They have been arranged systematically with exceptions and limitations so-as to address the needs of socio- economically diverse polity.
It goes to the credit of the framers that they combined the best elements of different constitution to a harmonious whole. Perhaps this optimism has lived up to its expectations and individual’s rights and liberties have been seldom abrogated.