-INTRODUCTION-
The Constitution of India is the longest written constitution . It is considered the supreme law of the Nation and demarcates the structure, a perfect framework, powers, and duties of government institutions. This ultimate document sets out fundamental rights, directive principles and duties of citizens. The Constitution of India, which was adopted by the Constituent Assembly on November 26,1949,and came into effect a year later, highlights the fundamental code signifying India as an independent republic with a democratic government.
Part III of the Indian Constitution deals with the much important fundamental rights. This part of the Constitution has been described as “the Magna Carta of India”. The Magna Carta of 1215 is the first written document granting fundamental rights to people which was followed by the Bill of Rights in 1689 bringing together all important rights and liberties of the English people. Following this path, later in France, such rights were declared in 1789 in the Declaration of the rights of man and the citizen. Henceforth the spirit was followed by the Americans, by incorporating the Bill of Rights in their Constitution. The makers of the Indian Constitution took inspiration from the American Bill of Rights and prepared a full chapter in the constitution to deal with the fundamental rights in an elaborate manner.
The fundamental rights are said to be the most fundamental of all rights and represent the basic values cherished by the citizens. It is prepared to protect the dignity of every citizen and create arenas in which every human being can develop himself to their fullest potential. They are designed in a manner that they become the most essential rights for the attainment by the individual of their full intellectual, moral and spiritual life. They showcase a pattern of guarantee on the basic structure of human rights and impose obligations on the State not to encroach on individual liberty in its various dimensions.
Part III enumerates a number of fundamental rights which are regarded as inevitable under all conditions, since these rights are indispensable in a free society. The enunciation of fundamental rights limits the range of State activity in the interest of liberty of the citizens. The major objective therefore, is to establish ‘rule of law’ by which the tyranny of majority does not oppress the minority in a parliamentary system of the Government.
-FEATURES OF THE FUNDAMENTAL RIGHTS-
Some of the salient features of the fundamental rights are as follows:
1.Forms an Integral part of the Constitution: Fundamental Rights are considered to be an integral part of the Constitution and hence cannot be taken away by ordinary legislation.
2. It is Comprehensive and detailed: The rights enumerated in the Part III of the Constitution are very well described as each Article has been described with its scope and limitations.
3. It Lacks social and Economic Rights: The Constitution guarantees only civil rights and freedoms. While the rights like Rights to work , Right to Health, and Right to Social Security have not been included in the Fundamental Rights.
4.The Rights are qualified: The fundamental rights of the people are not highlighted as absolute except the right against untouchability. They are qualified with limitations and reasonable restrictions in the interest of the society.
5. Enforceability of Rights: Fundamental Rights have been made jJusticiable. The Constitution not only grants but it also guarantees these rights. There are elaborate scope to protect these rights, such as Right to Constitutional remedy, Public Interest Litigation, etc.
6. Fundamental Rights are amendable: Fundamental Rights are not permanent. Parliament has the power to amend any part of the Constitution including Fundamental Rights, subject to the ‘basic structure’ of the Constitution.
7. Provision for the Suspension of Rights: The Constitution provides for suspension of all or any of the Fundamental Rights during a period of an emergency.
8. Constitutional superiority of Fundamental Rights: The Fundamental Rights of the citizens are superior to any other ordinary laws and the Directive Principles of State when the President withdraws it.
9. Special Rights for the minorities: Some special rights to the minorities of various kinds are been guaranteed by the fundamental rights. This is apart from the guarantee of the secular nature of the Constitution. Cultural and educational rights have been granted to them. It abolishes untouchability and makes it a crime. It has also granted special protections to women, children and the weaker sections of society.
10. No natural rights: The chapter on Fundamental Rights is not based on the theory of ‘natural rights’. Natural rights are said to belong to man by ‘nature’ and are inalienable from him. It is claimed that man possessed these rights even before the (concept of) State came into existence. Accordingly, natural rights do not owe their existence to their enumeration in the Constitution. The Constitution of India does not give any recognition to natural or unenumerated rights. People of India are guaranteed only those rights which are mentioned in Part III of the Constitution.
-IMPORTANT CONCEPTS RELATED TO THE FUNDAMENTAL RIGHTS-
–Art.12, THE CONCEPT OF STATE-
The Constitutional safeguards against the infringement of fundamental rights are directed against the State and its organs only. Therefore a person who alleges an infringement of his fundamental rights has to show that such violations have occurred owing to some kind of State action. Thus the fundamental rights included in Part III of the Constitution are guaranteed against State action as distinguished from action from private persons. In order to apply the fundamental rights, Art.12 defines the term “State” as including, unless the context otherwise requires,
- The Government and Parliament of India
- The Government and legislature of each state
- a) all local and other authorities within the territory of India, and
- b) all local and other authorities under the control of the Government of India(even though not within the territory of India)
–Art. 13, LAWS INCONSISTENT WITH THE FUNDAMENTAL RIGHTS-
1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
3. In this article, unless the context otherwise requires–a. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
b. “Law in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such or any part thereof may not be then in operation either at all or in particular areas.
4. Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
Article 13 provides for the doctrine of judicial review and the definition of ‘law’.
-FUNDAMENTAL RIGHTS-
Right to equality
The Right to Equality is one of the main guarantees of the Constitution. It is embodied in Articles 14–16, which collectively states the general principles of equality before law and non-discrimination and Articles 17–18 which encompass the philosophy of social equality.
Article 14
Article 14 guarantees equality before law as well as equal protection of the law to all people within the territory of India. This right includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances.
Article 15
Article 15 prohibits discrimination on the basis of religion, race, caste, sex, place of birth, and also gender or any of them. This particular right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds.Even if this is the case, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes.
Article 16
Article 16 of the Indian Constitution guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or income etc. However It creates exceptions for the implementation of measures .
Article 17
Article 17 abolishes the practice of untouchability in any kind, making it an offense punishable by the law. The Protection of Civil Rights Act, 1955 was enacted by Parliament to support this objective.
Article 18
Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state.
Right to freedom
The Right to Freedom is covered under the broad Article 19 to 22, with the view of guaranteeing individual rights that were considered essential by the makers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six different freedoms in the nature of civil rights, which are available only to citizens of India.These include the freedom of speech and expression , freedom of assembly without arms, freedom of association, freedom of movement throughout the territory of our country, freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may be imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions will vary according to the freedom sought to be restricted and include national security, public order, decency and morality, contempt of court, incitement to offences and defamation. The State is also empowered, in the interests of the general public, to nationalize any trade, industry or service to the exclusion of the citizens.
The freedoms guaranteed by Article 19 are further sought to be protected by the elaborate Articles 20–22.Article 20 sets forward protection from conviction for offences in certain respects, including the rights against ex post facto laws, double jeopardy and freedom from self-incrimination .Article 22 therefore provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one’s own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate.The provisions pertaining to preventive detention were discussed by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949.Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such a person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.
Right to information (RTI)
Right to information has been given the status of a fundamental right under Article 19(1) of the Constitution, very recently in 2005. Article 19 (1) under which every citizen has freedom of speech and expression and the right to know how the government works, what roles it plays, what its functions are, and so on.
Right against exploitation.
The Right against exploitation contained in Articles 23–24, lays down certain areas to prevent exploitation of the weaker sections of the society by individuals or the State.Article 23 of our constitution prohibits human trafficking, making it an offence punishable by law, and also prohibits forced labour or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes. Thus The Bonded Labour System (Abolition) Act, 1976, has been enacted by Parliament to give an effect to this Article.
Article 24 prohibits the employment of children below the age group of 14 years in factories, mines and any other forms of hazardous jobs.The respectable Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers.
Right to freedom of religion
The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all the citizens of our country and ensures a secular state in India. According to the Constitution, there is no official State religion in specific , and the State is required to treat all the known religions equally, impartially and neutrally.
- Article 25 guarantees all persons the freedom of conscience and the right to preach, practice and propagate any religion of their choice.
- Article 26 guarantees all religious denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage a property in accordance with law.
- Article 27 guarantees that no one can be compelled to pay taxes for the promotion of any particular religion or religious institution.
- Article 28 prohibits religious instruction in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian’s) consent.
Cultural and educational rights
The Cultural and Educational rights are given under Articles 29 and 30. They are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination.
Right to constitutional remedies
Article 32 provides a guaranteed remedy to all individuals in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue 5 writs, namely habeas corpus, mandamus, prohibition, certiorari and quo warranto, for the enforcement of these Fundamental Rights, while the High Courts have been empowered under Article 226 to issue these prerogative writs even in cases not involving the violation of Fundamental Rights.
Right to privacy
The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the constitution and as a part of the freedoms guaranteed by Part III of the Constitution. It protects the inner sphere of the individual from interference from both State and non-State actors and allows individuals to make autonomous life choices. On 24 August 2017, the Supreme Court of Indiain its Right to Privacy verdict ruled that:
“Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution,”
CONCLUSION
Fundamental Rights thus is said to prescribe the fundamental obligations of the states to its citizens.The respectful part about the Fundamental Rights is that it was developed by the Constituent Assembly without considering race,place of birth ,religion, caste, creed, gender etc. The framers of the Constitution were with a wide view for the future, and have incorporated the Fundamental Rights by addressing the problems of the future. Thus in a country like India, which is one of the oldest civilizations in the world with a variety and rich cultural heritage, the Constitution offers all citizens individually and collectively, some basic freedoms and rights which gives a sense of security and respect to each and every citizens under the broad ambit of “Fundamental Rights” .
Author Name: Keerthana Sajeev
Designation : 5th Sem Bcom Llb student
University/College Name – Kerala Law Academy
Email ID: keerthanasajeev26@gmail.com
Contact no- 9846540900