Evolution of Fundamental Rights in India
Fundamental rights are the basic human rights enshrined in the Constitution of India which are guaranteed to all citizens. They are applied without discrimination on the basis of race, religion, gender, etc.
- The basic rights of the people were seriously considered after the French Revolution and the American War of Independence.
- Indians desired the same rights and privileges that their British masters enjoyed in India.
Evolution of Fundamental Rights
- In fact, the first explicit demand for fundamental rights came up in the Swaraj Bill of 1895, by Lokmanya Tilak later Mrs. Annie Beasant's Commonwealth of India Bill enumerated fundamental rights which were almost identical in scope and nature with those adopted by the Irish free state in its Constitution of 1921.
- In 1928 Motilal Nehru Committee report recommended some basic religious and cultural rights of the people. However, neither the Simon Commission nor the Joint Parliamentary Committee on Indian Constitutional Reforms (1933-34) gave it a thought.
- The Sapru Committee (1945), however, supported the demand of Congress and recommended in its report the inclusion of these (fundamental) rights in the Constitution.
Importance of Fundamental Rights
Fundamental rights are very important because they are like the backbone of the country. They are essential for safeguarding the people’s interests.
- Fundamental rights aim to curb or limit the policing power of the democratic state.
- They go eventually to ensure the fullest development of the citizen's personality.
- These rights are called fundamental because:
(i) They have been incorporated in the fundamental law (constitution) of the land.
(ii) They are justiciable rights, enforceable by the courts, and are available to all citizens.
(iii) They are binding on public authorities in India, on the central government as well as state governments and on local bodies, and some such as the abolition of untouchability (Art.17) are enforceable against a private individual as well.
- Thus fundamental rights differ substantially from the ordinary laws in that they have the Constitution as their guarantor and courts as their protector.
- No law violating fundamental rights can act in contravention to these rights. Truly, they are fundamental.
Nature of Fundamental Rights
- An integral part of the Constitution: Fundamental rights are an integral part of the Constitution and hence cannot be altered or deleted by ordinary legislation.
- Most exhaustive: The chapter on fundamental rights: Part III of the Constitution, is more elaborate and exhaustive than any such list of any Constitution of the world.
- Not natural rights: Fundamental rights do not accord the rights which vest 'by nature' in man. They only mean rights that are expressed and enumerated in the constitutional provisions.
- There is no guard against any of the unenumerated rights.
Similarly, the judiciary cannot invalidate a legislature's act simply on the ground of violating the spirit of the Constitution.
- Some fundamental rights exclusive to citizens: Some fundamental rights, like equality of opportunity in public employment, right to be elected/ appointed President, Vice President, Attorney General, etc. are exclusive to the citizens of India.
- Some are applicable to any person living in the country: Some fundamental rights, however, are available to any person living in the country (citizen of foreigner) such as equality before the law and equal protection of the laws (Art. 14); protection in respect of conviction against ex-post-facto laws, double punishment, and self-incrimination (Art.20); protection of life and personal liberty against action without the authority of law (Art.21), etc.
- Negative and positive rights: Some fundamental rights are negative injunctions prohibiting the states from committing certain acts. Such as Article 18 desires state not to confer any special titles on the citizens and Article 17 abolishes untouchability.
- Others are positive commandments conferring certain benefits upon the individual such as right to liberty, equality, or freedom to express or worship etc.
- Fundamental rights can be further classified into Positive and Negative Rights. A positive right is a right that needs an action from the state in order to be executed. For example, the Right to employment.
- Negative Right is a right that requires the freedom from interference by the state or any other entity. For example, the Right to Freedom of Opinion and Expression.
- While the provisions limiting the state's authority are state's action can be declared void on the ground of contravening any of such provisions, the latter provisions cannot declare a state action void unless the state crosses the limit of reasonableness.
- Subject to restriction: The Constitution imposes reasonable restrictions on the use of fundamental rights. Parliament may make laws in this regard.
- The state may deny some of the fundamental rights in the national interest or on the ground of administrative convenience. Parliament has the power to modify the application of fundamental rights to the members of the Armed Forces, Police Forces, or intelligence organizations so as to ensure proper discharge of their duties and maintenance of discipline amongst them (Art. 33).
- When martial law has been in force in any area, Parliament may by law indemnify any person in the service of the Union or State for any act done by him in connection with the maintenance or restoration of order in such area or validate any sentence passed or act done while martial law is in force (Art. 34).
- Justiciable nature of Fundamental Rights: Art. 32 entitles a citizen to move to the Supreme Court and High Court to seek enforcement of the fundamental rights. The burden of justifying the reasonableness of any limitation on the fundamental rights lies on the judiciary. This has, of late, become a point of confrontation between the executive and the judiciary.
Suspendable Nature of Fundamental Rights
- The fundamental rights guaranteed under Art. 19 (freedom) remain suspended while a proclamation of emergency is made by the President under Art. 352.
- During this proclamation, the legislature shall have the right to make any law and the executive shall have the right to take any action, even though it is inconsistent with the rights guaranteed under Art. 19. Art. 19 will revive as soon as the proclamation expires.
- Also during operation of emergency President may by order declare that the right to move a court for the enforcement of any fundamental rights, including those which are conferred by Articles other than Art 19, shall remain suspended for the period during which the proclamation of emergency remains to move the proclamation of emergency remains in force (Art. 359). However, the right to move the courts would be revived after the proclamation ceases to be in force, or earlier, if so specified in the President's order. However, this order should be approved by Parliament. Articles 20-21 cannot be suspended by any order under Art. 359.
Amendability of Fundamental Rights
- Amendability: This feature of fundamental rights has created a lot of debate among jurists and politicians, indicating, signs of serious disagreement.
- The Golaknath case (1967), Keshavanand Bharati case (1973) and the Minerva Mill case (1980) brought out this disagreement on Amenability in a special manner.
- Now, it is held that Parliament can amend and abridge and not abrogate fundamental rights in such a way so as not to change the 'basic structure' of the Constitution.
- The first amendment in 1951 was intended to save the Zamindari abolition act from judicial scrutiny.
- In 1964, the 17th amendment clubbed 44 laws in the Ninth Schedule to keep the judiciary at bay. Until February 1967, the Supreme Court had been holding that no part of our Constitution was unamendable and that Parliament might, bypassing a Constitution Amendment Act, according to Art. 368, amend any provision of the Constitution, including the fundamental rights and Art. 368 itself.
- However, the Golak Nath case (1967) broke the ice, declaring that Parliament had no right to abridge or take away fundamental rights by amending the Constitution under Art. 368.
- The 24th amendment, 1971 nullified the judgment on the supremacy of fundamental rights. The amendment empowered Parliament to amend any part of the Constitution, including Part III. The Kesavanand Bharati case (1973) validated the 24th amendment and restored parliamentary supremacy, a position of pre-1967.
- The court, however, ruled out parliamentary right to alter the 'basic features' of the Constitution. To make the fundamental rights easily amendable, the 42nd amendment (1976), based on the Swaran Singh committee recommendation, was enacted which accepted that Parliament had unlimited power to amend the Constitution.
- The only limitation standing in Parliament's way is the judicial pronouncements on 'basic features' of the Constitution which can be eliminated only if a Bench longer than 13-Judge Bench in Kesavananda's case be prepared to overturn the decision in that case.
- In the Minerva Mills case, 1980 the Supreme Court struck down some provisions of the 42nd Amendment which gave unlimited amending power to Parliament. The supremacy of Parliament, thus, remains unchallenged, subject to the 'basic structure' limitations established by the Kesavananda Bharati case.
Introduction to Six Fundamental Rights
1. Right to Equality (Articles 14 – 18)
Right to equality guarantees equal rights for everyone, irrespective of religion, gender, caste, race or place of birth.
- It ensures equal employment opportunities in the government and insures against discrimination by the State in matters of employment on the basis of caste, religion, etc.
- This right also includes the abolition of titles as well as untouchability.
2. Right to Freedom (Articles 19 – 22)
Freedom is one of the most important ideals cherished by any democratic society. The Indian Constitution guarantees freedom to citizens.
The freedom right includes many rights such as:
- Freedom of speech
- Freedom of expression
- Freedom of assembly without arms
- Freedom of association
- Freedom to practice any profession
- Freedom to reside in any part of the country
Some of these rights are subject to certain conditions of state security, public morality and decency, and friendly relations with foreign countries. This means that the State has the right to impose reasonable restrictions on them.
3. Right against Exploitation (Articles 23 – 24)
This right implies the prohibition of traffic in human beings, begar, and other forms of forced labour.
- It also implies the prohibition of children in factories, etc.
- The Constitution prohibits the employment of children under 14 years in hazardous conditions.
4. Right to Freedom of Religion (Articles 25 – 28)
This indicates the secular nature of Indian polity. There is equal respect given to all religions.
- There is freedom of conscience, profession, practice and propagation of religion. The State has no official religion.
- Every person has the right to freely practice his or her faith, establish and maintain religious and charitable institutions.
5. Cultural and Educational Rights (Articles 29 – 30)
These rights protect the rights of religious, cultural and linguistic minorities, by facilitating them to preserve their heritage and culture. Educational rights are for ensuring education for everyone without any discrimination.
6. Right to Constitutional Remedies (32 – 35)
The Constitution guarantees remedies if citizens’ fundamental rights are violated.
- The government cannot infringe upon or curb anyone’s rights. When these rights are violated, the aggrieved party can approach the courts.
- Citizens can even go directly to the Supreme Court which can issue writs for enforcing fundamental rights.
Right to Equality
- Articles 14 to 18 deal with the right to equality.
- Equality before law — Article 14 provides that "the state shall not deny to any person equality before law or the equal protection of the laws within the territory of India."
- Equality before the law means that no man is above the law of the land and that every person, whatever be his rank or status, is subject to ordinary law.
- However, certain exceptions allowed to the rule of equality before the law by the Indian constitution are:
Exceptions allowed to Rule of Equality
1. The President or Governor of a state shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
2. No criminal proceeding whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.
3. No civil proceeding in which relief is claimed against the President or the Governor of a state shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President or Governor of such state until the expiration of two months next after notice in writing has been delivered to the President or the cause of action, therefore, the name, description, and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims (Art. 361). These immunities, however, shall not bar:
- Impeachment proceedings against the President.
- Suits or other proceedings against the Government of India or the Government of a state. Besides these constitutional exceptions, there will remain the exceptions, such as, in favour of foreign sovereigns and ambassadors as acknowledged by the international standards.
4. Equal protection of the laws: Equal protection of the laws means the right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed by the laws. This does not mean that every person shall be taxed equally, but that persons under the same character should be taxed by the same standard.
5. Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth — Article 15 states that "the state shall not discriminate against any citizen on grounds only of religion race, caste, sex, place of birth or any of them. Further, on the basis of any of these grounds, a citizen cannot be denied access to shops, public restaurants 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."
6. Article 15, however, has two exceptions:
(i) It permits the state to make special provisions for the benefit of women and children and
(ii) It allows the state to make any special provisions for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes.
Equality of opportunity in matters of public employment:
Article 16 ensures equality of opportunity in matters of public employment. The state is prohibited from showing any discrimination against any citizen on grounds of religion, caste, race, sex, descent, place of birth, or residence.
Exceptions to the above rule of equality are:
(i) Residence within the State may be laid down by Parliament as a condition for particular classes of employment or appointment under any state or other local authority.
(ii) The state may reserve any post of appointment in favour of any backward class of citizens who, in the opinion of the state, are not adequately represented in the services under the state.
(iii) The claim of the members of the scheduled castes and scheduled tribes shall be taken into consideration in the matter if appointment to services and posts under the Union and the states, as far as may be consistent with the maintenance of efficiency of the administration (Article 335).
Abolition of Titles
- Article 18 abolishes all titles and the state is prohibited from conferring titles on any person.
- The only exception made to the strict rule of non-recognition of titles is that provided in favour of academic or military distinctions.
- In 1954, the Government of India introduced decorations of four categories, namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Shri.
- These awards were mere decorations and not intended to be used as appendages to the names of the persons to whom they are awarded.
- There was vehement criticism from some quarters that the introduction of these awards violated Article 18.
- The protest raised by Acharya Kripalani against the award of such decorations, which went unheeded during the regime of Mrs. Gandhi, was honoured by the Janata regime by putting a stop to the practice of awarding Bharat Ratna, etc., by the Government.
- But it was restored by Mrs. Gandhi after her comeback.