Home General Knowledge GK SPECIAL TOPIC : THE FUNDAMENTAL RIGHTS: AN OVERVIEW
GK SPECIAL TOPIC : THE FUNDAMENTAL RIGHTS: AN OVERVIEW
Friday, 18 July 2014 08:26


 

 


THE FUNDAMENTAL RIGHTS: AN OVERVIEW

The Fundamental Rights in Indian constitution acts as a guarantee that all Indian citizens can and will live their lives in peace as long as they live in Indian democracy. Fundamental Rights mean those freedoms which are essential for personal good as well as the good of the community. The rights guaranteed under the Constitution of India are fundamental as they have been incorporated into the "fundamental Law of the land" and are enforceable in a court of law.

Right to Equality (article 14 to 18)

Article 14: Equality before law and equal protection of law

These two words have different connotations

Equality before law:

• The concept is of British origin.

• It denotes any form of discrimination between peoples is prohibited irrespective of their caste, creed, class etc.

• The equal subjection of all persons to the ordinary law of courts.

• It means that either king or servants all are equal before law.

But in Indian constitution privileges is given to president, governor, foreign sovereigns etc.

Equal protection of law:

• The concept is of American origin.

• The equality of treatment under equal circumstances i.e. people under similar situation as children, women, disables, poor etc should be treated equally.

As for example if the penalty of breach of a law is Rs.50000. it will be easier for a rich to give that penalty whereas difficult for a poor. So following Equality of Law creates a scene of discrimination whereas according to Equal Protection of Law penalties will be different for rich and poor.

Article 15: Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth

• The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.

• No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

a) access to shops, public restaurants, hotels and palaces of public entertainment;

b) 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.

• The exceptions are:

a) The state is permitted to make special provisions for women and children

b) The state is permitted to make special provisions for socially and educationally backward classes as ST/SC.

c) The State is permitted for making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions,  whether aided or unaided by the State (added by 93rd Amendment Act 2005)

Article 16: Equality of opportunity in matters of public employment

This article states that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and no citizen can be discriminated on grounds only of religion, race, caste, sex, descent, and place of birth, residence or any of them.

The four exceptions in this article are:

• Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

• Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State

• Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

• Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Article 17:  Abolition of Untouchability

This article abolishes untouchability and forbids its practice in any form. The term untouchability has not been defined in constitution.

Article 18:  Abolition of Titles

Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State. The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India — these titles were also abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Janta government has discontinued national awards in 1977 but again revived by Indira Gandhi in 1980.

Article 19 Right To Freedom

The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights. Article 19 called the key article embodying the “basic freedoms” under the constitution.

Here I will discuss article 19 in detail.

Article 19 provides freedom in six different scenarios:

a) Freedom of speech and expression implies that every citizen has the right to express his views, opinions, belief freely by words, writing, printing, picturing or in any other matter. But this does not mean that we are free to speak anything.

Certain restrictions on the ground of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence are present in the constitution.

b) Freedom to assemble peaceably and without arms implies that every citizen has the right to hold public meetings, demonstrations but that must be peaceful and unarmed. This does not include the right to strike.

But state can impose reasonable restrictions in the interests of the sovereignty and integrity of India or public order including the maintenance of traffic in the area concerned.

c) Freedom to form associations or unions implies that that every citizen has the right to form political parties, companies, societies etc.

Certain restrictions on the ground of interests of the sovereignty and integrity of India or public order or morality can be imposed on individuals.

d) Freedom to move freely throughout the territory of India implies that every citizen can move freely from one state to another or from one place to another within a state. The purpose is to increase national integration not regionalism.

The restrictions can be imposed on two grounds namely the interest of general public and the protection of interests of any scheduled tribes.

e) Freedom to reside and settle in any part of the territory of India implies that every citizen can reside (i.e. temporarily) or can settle (i.e. permanent) in any part of the country.

The restrictions can be imposed on two grounds namely the interest of general public and the protection of interests of any scheduled tribes. This will help tribes to conserve their culture, language customs etc.

f) Freedom to practise any profession or to carry on any occupation, trade or business implies every citizen is free to carry on any occupation, trade or business all over India. But certain restrictions on the grounds of interests of the general public can be imposed. The state can make law related to:

• The professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.

• Carry on by itself any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

This right does not include freedom to carry on trade or business in occupation that is immoral and dangerous as human trafficking, drugs, explosives etc.

Earlier there were seven types of Right to Freedom. Article 19 earlier guaranteed all citizens the right to acquire, hold and dispose off property but the right to property had been removed by Forty Fourth Amendment Act 1978.

Article 20, 21 And 22 Of Indian Constitution

Article 20

Protection is granted to citizens or foreigner or legal person like company or corporation in respect of conviction for offences

• No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

It means that no ex-post-facto law applies i.e. penalties or charge cannot be imposed retrospectively. This is provided against criminal laws and not on civil or tax laws. Whereas under criminal offence also protection on the basis of this provision cannot be claimed in case of preventive detention or demanding security from a person.

• No person shall be prosecuted and punished for the same offence more than once i.e. double jeopardy is not allowed. This provision is available in proceedings before a court of law only.

For example an officer in a company charged for corruption case then he can be punished only once for the same crime before court but the department or company can take action against him in form of dismissal from job or penalties. Protection is against court proceedings not departmental proceedings. Thus in this example the person has to go through two punishments (but this is not double jeopardy).

• No person accused of any offence shall be compelled to be a witness against himself. It extends to both oral evidence and documentary evidence.

It extends to criminal proceedings only and does not include thumb impression, blood specimens etc as an evidence against the person for which protection is granted.

Article 21

Protection of Life and Personal Liberty states that No person shall be deprived of his life or personal liberty except according to procedure established by law.

Protection of life has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air etc. Right to life is fundamental to our very existence without which we cannot live as human being and includes all those aspects of life which go to make a man's life meaningful, complete and worth living.

This includes:

* The right to go abroad

* The right to privacy

* The right against solitary confinement.

* The right against delayed execution.

* The right to shelter.

* The right against custodial death.

* The right against public hanging.

* Right to health

* Right to live with human dignity

* Right to livelihood etc.

Article 21A

It declares that the state shall provide free and compulsory education to all children of age of six to fourteen years. Thus this article makes elementary education a fundamental right and not higher or professional education.

This article was inserted by the 86th Amendment act 2002 which forms the base for the “Right to Education”.

Article 22

This article provides Protection against arrest and detention. Detentions are of two types “punitive detention” and "preventive detention".

Punitive detention is to punish the person for the crime he has already done and detained after trial and court proceedings.

Under preventive detention the person is arrested without trial on the basis of suspicion just to avoid the crime to be committed in the future. Thus it is a precautionary detention.

The article includes following provisions:

* The arrest warrant or any document that describes the reason of arrest should be produced before the person and he should be allowed to hire the lawyer of his choice.

* Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

* The above provisions of protection against detention does not apply to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.

* The person arrested under provision of preventive detention can be detained for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.

* Parliament may by law prescribe:

• The circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months

• The maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

• The procedure to be followed by an Advisory Board in an inquiry related to preventive detention.

Article 23 And 24 Of Indian Constitution

Article 23: Prohibition of Traffic in Human Beings and Forced Labour

• Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

This right is available to both citizens and non-citizens.

The traffic in human beings includes:

a) Selling and buying of men, women and children

b) Immoral traffic in women and children including prostitution.

c) Devadasis system practiced in southern states

d) Slavery

The term 'begar' means compulsory work without renumeration.

• Nothing in this article shall prevent the State from imposing compulsory service for public purpose as military service or social service and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Article 24: Prohibition of Employment of Children in Factories, etc.

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment like construction work, firework factories etc.

According to the statistics given by Indian government there are 20 million child laborers in the country.

The main legislative measures to enforce this fundamental right at the national level are The Child Labour Prohibition and Regulation Act -1986 and The Factories Act -1948.

The first act was categorical in prohibiting the employment of children below fourteen years of age, and identified 57 processes and 13 occupations which were considered dangerous to the health and lives of children.

The factories act again prohibits the employment of children less than fourteen years of age. However an adolescent aged between 15 and 18 can be recruited for factory employment only after securing a fitness certificate from a medical doctor who is authorized. The Act proceeds to prescribe only four and hour’s work period per day for children between 14 and 18 years. Children are also not allowed to work in night shifts.

India is also a signatory to the UN Convention on the Rights of the Child, ILO Abolition of Forced Convention.

Right To Freedom Of Religion

Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of Religion

This article states that all persons are equally entitled to

• Freedom of Conscience: It is the inner sense of what is wrong and right in one’s conduct and freedom of individual to mould his relation with god in whatever way he desires.

• Right to Profess: It is freedom of individual to teach religious beliefs and faith openly and freely.

• Right to practice: it is freedom of performance of religious worship, rituals, ceremonies etc.

• Right to propagate: it is freedom of transmission of religious beliefs to other people but it does not include right to convert another person to its own religion forcefully as done in era of Britishers.

Further the constitution has included some restrictions on the front of public order, morality, and health. It is available to citizens as well as non citizens.

Article 26: Freedom to Manage Religious Affairs

Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right.

• to establish and maintain institutions for religious and charitable purposes;

• to manage its own affairs in matters of religion;

• to own and acquire movable and immovable property; and

• to administer such property in accordance with law

Setting up of religious institutions to propagate religious beliefs are allowed under constitution but the working should be according to the law of land.

Charities, acquiring of property is allowed but religious denomination must have

a) Common organization

b) Designated by distinctive name

Article 27: Freedom as to payment of taxes for promotion of any particular religion

This article states that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

It means that the tax collected by states cannot be used for promotion or maintenance of any religion. India is a secular country and this secularity states that government has to work for the total upliftment of society not a particular religion.

Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions

Under this article

• No religion instruction shall be provided in any educational institution wholly maintained out of State funds. This means that the schools and colleges totally run by government cannot teach any religious thoughts to the students.

• An educational institution which is administered by the State but has been established under any endowment or trust then religious instruction shall be imparted in such institutions. This means that schools or colleges established by trusts or religious entities but administered by government can impart teachings if they think so.

• No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto Cultural and Educational Rights. This means that if schools or colleges if organizing any religious activity as worship, seminars then it cannot force students to attend it.

Article 29, 30 of Indian Constitution

Article 29: Protection of interests of minorities

This article states that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

This provision protects the right of the groups and give them protection and resources to conserve their culture, traditions, languages etc.

In this part of article minority is portrayed in terms of cultural and linguistic minority only not in terms of religious minority.

Further this article states that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

This part of article religious minority clause has also been considered. This right is for an individual identity symbolizing its freedom to attend any educational institution of its choice irrespective of race, religion, caste etc.

Article 30: Right of minorities to establish and administer educational institutions

This article states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

(The definition of minority is not defined in constitution; it is interpreted by Supreme Court under different cases)

Minority educational institutions are of three types:

a) Institutions that seek recognition as well as aid from the state.

b) Institutions that seek only recognition from the state and not the aid

c) Institutions that neither seek recognition nor aid from the state.