Part III of the Constitution is rightly described as the Magna Carta of India. It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights. In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA. Originally, the Constitution provided for seven Fundamental Rights via,
1. Right to equality (Articles 14-18)
2. Right to freedom (Articles 19-22)
3. Right against exploitation (Articles 23-24)
4. Right to freedom of religion (Articles 25-28)
5. Cultural and educational rights (Articles 29-30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32) However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.
Article 12 (Definition Of State)
- Government and Parliament of India, that is, executive and legislative organs of the Union government.
- Government and legislature of states, that is, executive and legislative organs of state government.
- All local authorities that is, municipalities, panchayats, district boards, improvement trusts, etc.
- All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
Article 13 (Laws Inconsistent With Fundamental Rights)
Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review. The term Maw" in Article 13 has been given a wide connotation so as to include the following:
- Permanent laws enacted by the Parliament or the state legislatures;
- Temporary laws like ordinances issued by the president or the state governors;
- Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification;
- Non-legislative sources of law, that is, custom or usage having the force of law.
Article 13(2) states that - "The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention to this clause shall, to the extent of the contravention, be void". An amendment is valid even if it abridges any fundamental Right.
RIGHT TO EQUALITY (14-18)
Equality before Law and Equal Protection of Laws: 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. This provision confers rights on all persons whether. The concept of "equality before law" is of British origin while the concept of equal protection of laws" has been taken from the American Constitution. The first concept connotes:
- the absence of any special privileges in favour of any person,
- the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and
- No person i whether rich or poor, high or low, official or non-official) is above the law.
Rule of Law
The concept of 'equality before law' is an element of the concept of 'Rule of Law’, propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects:
- Absence of arbitrary power, that is, no man can be punished except for a breach of law.
- Equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered.
Exceptions to Equality
The rule of equality before law is not absolute and there are constitutional and other exceptions to it. These are mentioned below: The President of India and the Governor of States enjoy the following immunities (Article 361):
- The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.
- No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.
- No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office.
- No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee there of (Article 105).
Article 15 (Prohibition of Discrimination on Certain Grounds)
- Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The two crucial words in this provision are discrimination' and only".
- The word discrimination" means To make an adverse distinction with regard to' or 'to distinguish unfavourably from others'. The use of the word "only' connotes that discrimination on other grounds is not prohibited.
- The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children.
Article 16 (Equality of Opportunity in Public Employment)
Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.
Article 17 (Abolition of Untouchability)
In 1976, the Untouchability (Offences) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent. Under the Protection of Civil Rights Act (1955), the offences committed on the ground of untouchability are punishable either by imprisonment up to six months or by fine upto 500 or both.
Article 18 (Abolition of Titles)
Article 18 abolishes titles and makes four provisions in that regard:
- It prohibits the state from conferring any title (except a military or academic distinction) on any body, whether a citizen or a foreigner.
- It prohibits a citizen of India from accepting any title from any foreign state.
- A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
- No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.
RIGHT TO FREEDOM
Protection of Six Rights Article 19 guarantees to all citizens the six rights. These are:
- Right to freedom of speech and expression.
- Right to assemble peaceably and without arms.
- Right to form associations or unions or co-operative societies.
- Right to move freely throughout the territory of India.
- Right to reside and settle in any part of the territory of India.
- Right to practice any profession or to carry on any occupation, trade or business.
- Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.
Freedom of Speech and Expression
It implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner. The Supreme Court held that the freedom of speech and expression includes the following:
- Right to propagate one's views as well as views of others.
- Freedom of the press.
- Freedom of commercial advertisements.
- Right against tapping of telephonic conversation, (e) Right to telecast, that is, government has no monopoly on electronic media.
- Right against bundh called by a political party or organisation.
- Right to know about government activities.
- Freedom of silence.
- Right against imposition of pre-censorship on a newspaper.
Freedom of Assembly
Every citizen has the right to assemble peaceably and without arms. It includes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only on public land and the assembly must be peaceful and unarmed. This provision does not protect violent, disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms. The State can impose reasonable restrictions on the exercise of right of assembly on two grounds.
Freedom of Association
- All citizens have the right to form associations or unions or co-operative societies. It includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions or any body of persons. It not only includes the right to start an association or union but also to continue with the association or union as such.
- Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty and integrity of India, public order and morality.
Freedom of Movement
- This freedom entitles every citizen to move freely throughout the territory of the country. He can move freely from one state to another or from one place to another within a state. Thus, the purpose is to promote national feeling and not parochialism.
- The grounds of imposing reasonable restrictions on this freedom are two,namely, the interests of general public and the protection of interests of any scheduled tribe.
Freedom of Residence
- Every citizen has the right to reside and settle in any part of the territory of the country. This right has two parts:
(i) the right to reside in any part of the country, which means to stay at any place temporarily, and
(ii) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently.
- The State can impose reasonable restrictions on the exercise of this right on two grounds, namely, the interest of general public and the protection of interests of any scheduled tribes.
Freedom of Profession
All citizens are given the right to practise any profession or to carry on any occupation, trade or business. This right is very wide as it covers all the means of earning one's livelihood. The State can impose reasonable restrictions on the exercise of this right in the interest of the general public.
Article 20 (Protection in Respect of Conviction for Offences)
Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains three provisions in that direction: No ex- post-facto law: No person shall be
- convicted of any offence except for violation of a law in force at the time of the commission of the act, nor
- subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.
- No double jeopardy: No person shall be prosecuted and punished for the same offence more than once.
- No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.
Article 21 (Protection of Life and Personal Liberty)
- No person shall be deprived of his life or personal liberty except according to procedure established by law.
- In the famous Gopalan case(1950), is available only against arbitrary executive action and not from arbitrary legislative action.
- But, in Menaka case(1978), the Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21.
- The Supreme Court has reaffirmed its judgement in the Menaka case in thesubsequent cases. It has declared the following rights as part of Article 21:
- (1) Right to live with human dignity.
(2) Right to decent environment including pollution free water and air and protection against hazardous industries.
(3) Right to livelihood.
(4) Right to privacy.
(5) Right to shelter.
(6) Right to health.
(7) Right to free education up to 14 years of age.
(8) Right to free legal aid.
(9) Right against solitary confinement.
(10) Right to speedy trial.
(11) Right against handcuffing.
(12) Right against inhuman treatment.
(13) Right against delayed execution.
(14) Right to travel abroad.
(15) Right against bonded labour.
(16) Right against custodial harassment.
(17) Right to emergency medical aid.
(18) Right to timely medical treatment in government hospital.
(19) Right not to be driven out of a state.
(20) Right to fair trial.
(21) Right of prisoner to have necessities of life.
(22) Right of women to be treated with decency and dignity.
(23) Right against public hanging.
(24) Right to hearing.
(25) Right to information.
(26) Right to reputation.
(27) Right of appeal from a judgement of conviction
(28) Right to social security and protection of the family
(29) Right to social and economic justice and empowerment
(30) Right against bar fetters Right to appropriate life insurance policy
(32) Right to sleep
(33) Right to freedom from noise pollution
(34) Right to electricity
Right to Education Article 21 A (86th Amendment 2002)
- Declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine. This amendment is a major milestone in the country's aim to achieve 'Education for AIl.
- Even before this amendment, the Constitution contained a provision for free and compulsory education for children under Article 45 in Part IV. However, being a directive principle
- It now reads-'The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.’ It also added a new fundamental duty under Article 51A that reads- ‘It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years’.
Article 22 (Protection Against Arrest and Detention)
- Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive.
- Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.
- Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.
RIGHT AGAINST EXPLOITATION
Article 23 (Prohibition of Traffic in Human Beings and Forced Labour)
- Article 23 prohibits traffic in human beings, begar (forced labour) and other similar forms of forced labour. This right is available to both citizens and non-citizens.
- It protects the individual not only against the State but also against private persons. The expression Traffic in human beings’ include
(i) selling and buying ofmen, women and children like goods;
(ii) immoral traffic in women and children, including prostitution;
- To punish these acts, the Parliament has made the Immoral Traffic (Prevention) Act, 1956.
Article 24 (Prohibition of Employment of Children in Factories)
- Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work.
- In 1996, the Supreme Court directed the establishment of Child Labour Rehabilitation Welfare Fund in which the offending employer should deposit a fine of 20,000 for each child employed by him.
- Child Labour Amendment (2016)The Child Labour (Prohibition and Regulation) Amendment Act, 2016, amended the Child Labour (Prohibition and Regulation) Act, 1986.
- The Amendment Act prohibits the employment of adolescents (14to 18 years of age) in certain hazardous occupations and processes. It is an imprisonment of 6 months to 2 years, or a fine of 20,000 to 50,000, or both.
RIGHT TO FREEDOM OF RELIGION
Article 25 (Freedom of Conscience and Free Profession, Practice and Propagation of Religion)
Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The implications of these are: Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.
Right to profess: Declaration of one’s religious beliefs and faith openly and freely.
Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.
Right to propagate: Transmission and dissemination of one’s religious beliefs to others.
Article 26 (Freedom to Manage Religious Affairs)
According to Article 26, every religious denomination or any of its section shall have the following rights:
- Right to establish and maintain institutions for religious and charitable purposes;
- Right to manage its own affairs in matters of religion;
- Right to own and acquire movable and immovable property; and
- Right to administer such property in accordance with law.
Article 27 (Freedom from Taxation for Promotion of a Religion)
Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. This means that the taxes can be used for the promotion or maintenance of all religions.
Article 28 (Freedom from Attending Religious Instruction)
Under Article 28, no religious instruction shall be provided in any educational institution wholly maintained out of State funds.
CULTURAL AND EDUCATIONAL RIGHTS
Article 29 (Protection of Interests of Minorities)
Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same.
Article 30 (Right of Minorities to Establish and Administer Educational Institutions)
Article 32 (Right To Constitutional Remedies)
Dr Ambedkar called Article 32 as the most important article of the Constitution—'an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it’. The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. It contains the following four provisions:
- The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed.
- The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
- Parliament can empower any other court to issue directions, orders and writs of all kinds. Article 226 has already conferred these powers on the high courts.
- The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution, Thus the Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency.
WRITS-TYPES AND SCOPE
Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs. Article 226 now empowers all the high courts to issue the writs. The writ jurisdiction of the Supreme Court differs from that of a high courtin three respects: The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose. •
(i) Habeas Corpus
It is a Latin term which literally means ‘to have the body oiMt is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention.
It literally means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
Literally, it means To forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity.
In the literal sense, it means to be certified’ or To be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
In the literal sense, it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.
Article 33 (Armed Forces And Fundamental Rights)
Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces. The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.
Article 34 (Martial Law And Fundamental Rights)
- Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India.
- The Parliament can also validate any sentence passed, punishment inflicted.
Article 35 (Effecting Certain Fundamental Rights)
Article 35 lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures.