Q.1. Discuss the Nature of Fundamental Rights as mentioned in our Constitution.
Explain the main features of the Fundamental Rights of the Indian Citizens.
Ans. Part III (Articles 12 to 35) of the Indian Constitution contains the list of Fundamental Rights. The Courts have been entrusted with the responsibility to enforce them when and where they have been violated. They are thus the props of the Indian democracy. Nature of the Fundamental Rights. The following are the salient features of the Fundamental Rights contained in the Indian Constitution.
(i) Integral part of the Constitution. Fundamental Rights are the integral part of the Constitution. These Fundamental Rights can not be altered or taken away by an ordinary Constitution.
(ii) Detailed and comprehensive. Indian Constitution has the most elaborate declaration of Fundamental Rights. Articles 12 to 35 deal with the Fundamental Rights. These 24 Articles are further divided into eight sections each of which is described in an elaborate manner.
(iii) All citizens are equally entitled t o the Fundamental Rights. The Constitution unequivocally declares that rights contained in Part III of the Constitution are to be enjoyed by all the citizens of India. These rights are not meant for any particular caste, class, religion or the residents of a province. There can be no discrimination.
(iv) Fundamental Rights are not absolute. Another significant feature of these rights is that they are not absolute. The Constitution of India imposes direct restrictions on these rights. It also empowers the government to impose reasonable restrictions on the enjoyment of these rights. Thus, the Constitution empowers the government to put reasonable restrictions on the Fundamental Rights in the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, decency or morality.
(v) Fundamental Rights place certain limitations on the State also. The theory of Fundamental Rights implies limited government. Accordingly, Fundamental Rights impose restrictions on the State as well. For example, the State cannot discriminate against citizens on grounds of caste, class, race, sex, religion, place of birth, place of residence, etc. Similarly, citizens cannot be deprived of the Right to equality before law. Again there is the Right to equality of opportunity in public employment to all the citizens.
(vi) Fundamental Rights can be suspended. Another significant feature about the Fundamental Rights is that they can be restricted or suspended as the circumstances demand.
(vii) Fundamental Rights are justiciable. The Judiciary has been vested with the responsibility to act as the guardian of these rights. The right to move the Supreme Court for the enforcement of Fundamental Rights is itself a guaranteed right as provided for in Article 32 of the Constitution. Thus, whenever the State (as defined in Part III of the Constitution) or any other authority encroaches upon the rights of a person, the latter can move the Supreme Court and the High Courts for the enforcement of his rights. The Supreme Court and the High Courts are empowered to issue “Directions or order or writs whichever may be appropriate” for the enforcement of the rights. The Judiciary is thus the protector and the guarantor of Fundamental Rights.
(viii) No Natural and Unenumerated Rights in the Indian Constitution. The Indian Bill of Rights is not based on the theory of natural rights.The theory of natural rights insists that there are certain rights of man which he possessed even before the State itself came into existence. The Constitution of India does not recognise such a proposition. Our Fundamental Rights have been specified in Part III of the Constitution. Any right which has not been enumerated in Part III is not a Fundamental Right.
(ix) They can be amended. Fundamental Rights can be amended by the procedure given in Article 368. According to this Article, only Parliament is competent to amend the provisions of the Fundamental Rights with two-third majority of the total membership of the Parliament.
(x) Special Constitutional provision for the enforcement of Fundamental Rights. Another important feature of Fundamental Rights in India is that there is a special Constitutional provision for their enforcement. The right to move the Supreme Court for the enforcement of Fundamental Rights is provided in Article 32 of the Constitution.
Q. 2. Explain briefly the scheme of ‘Fundamental Rights’ as contained in the Indian Constitution.
Write an essay on ‘Fundamental Rights’ as incorporated in our Constitution.
Ans. The Fundamental Rights enumerated in the Indian Constitution are the most elaborate in the world. The Constitution of India provides for Fundamental Rights by developing a complete and separate part (Part III) and classifies them under six categories. Six Fundamental Rights are as follows :
(i) Right to Equality (Articles 14–18): The Constitution declares all the citizens of India to be equal in the eyes of law. Law provides equal protection to all. Right to equality does not mean absolute equality. Nor does it imply that all should be entitled to identity of treatment and income. The positive concept of equality is that special privileges of all kinds should be abolished. There should be no difference between two individuals on the grounds of birth, wealth, caste, class, creed, religion, language, gender, etc. Right to equality is the cornerstone of democracy.
(ii) Right to Freedom (Articles 19–22): Articles 19 to 22 of the Constitution guarantee to the citizens the Right to Freedom. Article 19 guarantees six freedoms viz.
(1) Right to Freedom of Speech and Expression; 19(a) Right to Information (RTI) Act 2005;
(2) Right to Assemble Peacefully and without Arms;
(3) Right to form Associations;
(4) Right to move freely throughout the territory of India;
(5) Right to reside and settle in any part of the territory of India;
(6) Right to practice any profession. Articles 20 to 22 guarantee personal liberty including 21(A) Right of Children to Free and Compulsory Education (RTE) Act, 2009
(iii) Right against Exploitation (Articles 23–24): The Constitution of India recognises the dignity of the individual and protects him against any form of exploitation either by the State or by the privileged classes in the society. Article 23 provides that traffic in human beings and begaar (forced labour) and similar other forms of forced labour are prohibited. Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous (dangerous) employment.
(iv) Right to Freedom of Religion (Articles25–28): Articles 25 to 28 deal with the Right to freedom of religion. Right to freedom of religion has been guaranteed to all persons residing in India. Article 25 provides that subject to public order, morality and health, all persons are equally entitled to freedom of conscience and the right to profess, practice and propagate any religion of their choice. Article 28 prohibits imparting of religious instruction in any educational institution wholly maintained out of State funds.
(v) Cultural and Educational Rights (Articles 29–30): Under Articles 29 and 30, the Constitution guarantees certain cultural and educational rights. No citizen shall be denied admission into any educational institution maintained by the State receiving aid out of State funds on grounds of religion, race, caste, sex, language or any one of them. Article 29 protects the interests of the minorities in India. Article 30 provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(vi) Right to Constitutional Remedies (Article 32): Article 32 guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution. Under Article 226, the High Courts have also been empowered to issue orders, directions and writs for the enforcement of Fundamental Rights. The judiciary can set aside laws and executive orders if they are violating the Fundamental Rights.
Q. 3. Explain the importance of Fundamental Rights.
Ans. There is a great importance of the Fundamental Rights given in the Indian Constitution. The importance of the Fundamental Rights may be summed up as under:
1. Creates conditions for better life. The Fundamental Rights provide conditions for a better life of the individual. It is wrong to think that the restrictions put on Fundamental Rights have made them meaningless or valueless. These restrictions ensure a climate wherein all can develop their personality according to their genius. The Fundamental Rights ensure the fullest physical, mental and moral development of every citizen and provide those basic freedoms and conditions which alone can make life worth living.
2. Check on the arbitrariness of the Govt. The Fundamental Rights safeguard the individuals against any excesses of the State authority. They ensure the liberty of individual by putting restrictions on the arbitrariness of the Government. The jurisdiction of executive and legislature has been clearly laid down in the Constitution. The judiciary has been vested with the responsibility to act as the protector and the guardian of the rights of the people. While deciding the famous Golak Nath Case, the Supreme Court observed that these rights are immutable and transcendental in characters. They cannot be abridged or abrogated. Dr. Ambedkar said that the Fundamental Rights are the ‘heart and soul of Constitution’.
3. Create conditions for the development of the personality of the individual. The Fundamental Rights motivate the individuals to develop their potential to the fullest extent. The Fundamental Rights ensure the welfare and enrichment of the individual personality.
4. Protect the interests of the minorities. The Fundamental Rights protect the interests of the minorities. The Fundamental Rights protect the language, script, cultural and educational institutions of the minorities. Minorities have the right to establish and administer educational institutions of their choice.
5. Establishment of Secular State. The Constitution of India has made India a Secular State. Right to freedom of religion ensures the positive aspect of secularism as it gives to the people the right to freely adopt and propagate any religion.
6. Establishment of Social Democracy. The Fundamental Rights have ensured the establishment of socia l democracy. Articles 15 and 16 prohibit discrimination on the grounds of religion, race, caste, sex or place of birth.
Q. 4. Why was the Right to property removed from Fundamental Rights?
Ans. Originally, Fundamental Rights included seven categories of rights. But 44th Amendment Act deleted Right to property from Part III of the Constitution entitled Fundamental Right and made it a ‘legal right’ by inserting Art. 300-A in Chapter IV added to Part XII which says, “No person shall be deprived of his property save by the authority of law”. The Right to property is deleted from the chapter of Fundamental Right because the right to property was an illusory right. It has been whittled down by various Constitutional amendments. It hardly appears to be a justiciable right now. In the Golak Nath Case judgement, the former Chief Justice Hidayatullah observed that the Right to property was the weakest among the Fundamental Rights guaranteed in the Indian Constitution. It should have been placed in a different chapter. The 25th Amendment of the Constitution made the Right to property a sheer joke. The word ‘compensation’ was substituted by the word ‘amount’. How much amount shall be given and in which form shall it be given, shall be determined by the legislature. No such law shall be called in question in any Court on the ground that the amount so fixed or determined is not adequate or than the whole or any part of such amount is to be given otherwise that in cash. Speaking on the amending bill, the Swatantrata leader Mr. Piloo Mody observed that the bill is an attempt to transform the present Constitution into a totalitarian one. The nominated member Mr. Frank Anthony charged the Government with subverting the Fundamental Rights Chapter— “The Heart of the Constitution”. By 44th Amendment Act, Right to property is deleted from Fundamental Rights chapter.
Q.5. How have the interpretations by the courts influenced Fundamental Rights?
Ans. The rights of the people proclaimed in the Indian Constitution are not mere paper declarations. The Constitution provides for a machinery to guarantee and enforce these rights in actual practice. The judiciary has been vested with the responsibility to act as the guardian of these rights. The Right to move the Supreme Court for the enforcement of Fundamental Rights is itself a guaranteed right as provided for in Art. 32 of the Constitution. Thus, whenever the State (as defined in Part III of the Constitution) or any other authority encroaches upon the rights of a person, the latter can move the Supreme Court and the High Courts for the enforcement of his rights. The Supreme Court and the High Courts are empowered to issue “Directions or orders or writs whichever may be appropriate” for the enforcement of his rights. The judiciary is thus the protector and the guarantor of Fundamental Rights.
Moreover, the Constitution of India has placed the responsiblity of interpreting the Constitution on the Court. The Supreme Court is the final interpretator of the Constitution. The interpretations of the provisions of the Constitution by the Courts have influenced Fundamental Right.
1. The freedom of speech and expression has been granted to all citizens. But there in no mention of freedom of press in Article 19. It is the Supreme Court which has decided in many cases that the freedom of speech and expression includes the freedom of the press.
2. In 1950, the Parliament passed the Preventive Detention Act. The provision of Preventive Detention was a necessary evil. Extraordinary maladies demand extraordinary remedies. In Gopalan vs the State of Madras, Justice Patanjali Shastri of the Supreme Court observed, “This sinister looking feature so strongly out of place in a democratic Constitution which invests personal liberty with the sacrosanctity of a Fundamental Right and so incompatible with the promises of the Preamble is doubtless designed to prevent an abuse of freedom by anti-social and subversive elements which might endanger the national welfare of the infant republic.”
Still, it cannot be denied that it is a double-edged weapon. It can be used to protect the individual’s liberty; it can also be used to destroy the individual liberty. It is hoped that the Government will resort to this extreme measure very sparingly. “It is the hope of all democrats and constitutional lawyers that Parliament may, in the near future, remove the relevant provisions pertaining to detention without trial.” In the words of Pylee it is undoubtedly “An unseemly blot on the fair face of democracy in India.”
3. In the case of Gopalan vs State of Madras, the Supreme Court observed, if a person is free it is then only that he can exercise a variety of other auxiliary rights, that is to say, he can with certain limits “speak what he thinks, assemble where he likes, form any association or unions”.
4. The right to freedom of speech and expression was interpreted by the Supreme Court in Ramesh Thapar vs the State of Madras. It held that even incitement to individual murder of promoting disaffection among classes could not be restricted under the permissive limits set in the Articles. This necessitated the imposition of restrictions which were laid through the First amendment to the Constitution.After this amendment, this freedom has been subjected to reasonable restrictions which the State may impose in the interest of
(i) the security of State,
(ii) the maintenance of friendly relations with foreign States,
(iii) public order,
(iv) decency or morality or in relations to,
(v) contempt of Court,
(vi) defamation or
(vii) incitement of offence.
5. In the case of Ram Singh vs Delhi State, the Supreme Court observed: “In every case it is the rights which are fundamental not the limitations. It is the privilege of the Supreme Court to see that rights which are intended to be fundamental are kept fundamental and to see that neither Parliament nor Executive exceed the bounds within which they are confined by the Constitution”. In order to keep the executive and legislature within bounds, the Supreme Court held in the case of Golak Nath that Parliament had no power to amend the Constitution so as to abridge or abrogate a Fundamental Right laid down in Part III of the Constitution. The Supreme Court Judgement in Golak Nath’s case had very far reaching and disturbing implications. In the first place, it had the effect of making Fundamental Rights not only fundamental but immutable.
Secondly, the courts ruling had the effect not only of denigrating the authority of Parliament but of conferring on the Supreme Court a power into contemplated in the Constitution. By debarring Parliament from the exercise of a power given to it in Art. 368, the Supreme Court had in effect, sought to amend the Constitution. Justice Bachawat observed such a naked power of amending the Constitution is not given to the Judges. “The ruling” writes Seervai, “places a judicial Veto over any legal amendment of Part III and denies to a sovereign people acting through its freely elected representatives in Parliament the power to implement policies demanded by and in the interest of the people, should they require the abridgement of Part III”. The 24th Amendment Act restored Parliament the power to amend any part of the Constitution including Fundamental Rights. The power thus restored to the Parliament was promptly used to enact 25th Amendment which puts certain restrictions on the Right to property.
But the 24th Amendment was challenged before the Supreme Court in the Kesvananda Bharati Case. The Supreme Court decided the Case on April 24, 1973 and in its decision upheld the Constitutionality of the amendment. It held that the Parliament had the power to amend all provisions of the Constitutions, including those relating to Fundamental Rights but had no power to change the basic structure of the Constitution. Thus, the Supreme Court imposed a new restriction on Parliament’s Constitutional amending power, i.e., basic structures of the Constitution.
But what this basic structures was not clearly defined by the Supreme Court. The verdict given by the Supreme Court in the Minerva Mills Case (1980) has again curtailed the power of Parliament to amend the Constitution. The Supreme Court has struck down Section 4 and 55 of the 42nd Amendment on the ground that they are beyond the amending power of Parliament. These sections amended Art. 31 (c) and also inserted Clauses 4 and 5 in Art. 368 of the Constitution. While giving reasons for invalidating these sections, the Supreme Court ruled that the Fundamental Rights enjoy primacy over the Directive Principles of State Policy.