Fundamental rights: The leaders of the free movement acknowledged the importance of rights during our freedom struggle and called for British rulers to respect human rights. The Motilal Nehru committee (M.N.C.) had called for a bill of rights as early as 1928.
As a result, there were no two viewpoints on the inclusion and protection of rights in the Constitution when India gained independence and the constitution was being drafted.
Fundamental Rights are distinct from other rights that we have. Fundamental rights are safeguarded and guaranteed by the country’s constitution. Ordinary rights can be amended (changed) by the legislature through the normal legislative process, but fundamental rights (F.R.) can only be changed by amending the Constitution itself. Aside from that, no organ of law enforcement may act in a way that violates them.
Part III of India’s Constitution, which is the backbone of our democratic system, contains the Fundamental Rights (F.R). The Supreme Court and the High Courts have the authority to declare a law unconstitutional and thus void if it infringes on any of the rights enshrined in Part III. (Art.13)
Justice Bhagwati observed in the Maneka Gandhi case:- “Such fundamental rights (F.R.) define the basic values that are cherished by the Vedic people and are calculated to protect the dignity of the person.
The Object of Fundamental Rights
There are certain rights which are considered fundamental in every democratic system of government. They are vital for the individual’s complete moral and spiritual stature to be achieved. The aim of fundamental rights is therefore to ensure that people in all respects protect and develop the moral and spiritual statures.
The principal aim of the constitution’s fundamental rights is to restrict the powers of the country’s executive and legislature. Such rights must also be provided for in order not to allow people’s representatives to misuse their power by a majority in the democracy.
The fundamental right is to establish a rule of law which means that everyone is subject to law regardless of their position so that the majority cannot oppress the minority. The basic right is to be established.
Fundamental rights impose on the State an obligation not to interfere with the individual’s freedom and rights against the State.
Fundamental Rights’ distinguishing features
The following are some of the most important characteristics of Fundamental Rights:-
- One of the most important characteristics of Fundamental Rights is that they are justifiable. It means that the constitution not only declares them, but also ensures their fulfillment. A right that isn’t accompanied by a remedy isn’t a complete right and is meaningless. Writs are a remedy provided by the Constitution for enforcing Fundamental Rights.
- Another distinguishing feature of Fundamental Rights is that some of them are available to all people, whether natural or artificial, and whether or not they are citizens, while others are only available to Indian citizens. Right to be free of discrimination; right to equal opportunity in government employment; right to freedom of expression, and so on.
- R are limitations on the government’s actions. These are not intended to protect individuals from the actions of private individuals because private actions are adequately protected by the common law of the land. In the landmark case of State of West Bengal vs. Subodh Gopal, A.I.R. 1954, S.C. 92, Chief Justice Patanjali Shastri observed that the entire purpose of Part III of the Indian Constitution is to protect the freedoms and rights mentioned therein from arbitrary invasion by the state.
- The judiciary is limited to overriding the fundamental rights under the shield of its orders, as is the case with other organs of the State, as the judiciary is a ‘state’ acting as judge is subject to written jurisdiction;
The Fundamental Rights(F.R.) can be classified as follows
- Equality right ( Article 14-18)
- Freedom right (Article 19-22)
- Right against Exploitation (Article 23-24)
- Right to Religious Freedom (Article 25-28)
- Rights of culture and education (Article 29-30)
- Property right (Rule 31) (Repealed by the 44TH Amendment Act,1978)
- Right to Constitutional remedies (Article 32-35)
Equality Right(Article 14-18)
Equality is addressed in Art.14 to 18 of the Constitution in all of its facets(aspects). The general principles are laid out in Article 14. The State shall not refuse to give equality or equal protection of laws within the territory of India to any person in the context of Article 14 of the Act. The term ‘equity before the law’ is an equality proclamation of all people in India which implies that any individual is deprived of any special privilege. Each person is subject to the competence of common courts, regardless of his or her status.
The first segment of the 14th amendment to the US Constitution refers to the latest clause of the second term of “equal Law Protection” which requires equal protection for all people in the country. Equal protection of laws In addition to being limited to citizens, Article 14 applies to all persons. There is confusion, however, that in all respects not all people are equal. Therefore, implementing the uniformity of the same law to them all is contrary to the principle of equality
Right to freedom (Article 19-22)
The right to freedom is covered by Article 19 to 22 of the Constitution. The following six characteristics of’ personal freedoms are included in this right:
- •In a democracy, the value of freedom of thought & freedom of expression cannot be overstated.
- Citizens have the right to gather peacefully and arms free.
- Form associations or unions: Associational freedom includes the right to hold meetings and takeout processions without the use of weapons. The right to form union associations is also guaranteed, allowing people to have members who share similar viewpoints. The right also has certain limitations, including the sovereignty and integrity of India, moral standards and the public order.
- move freely throughout Indian territory: Art.19(1) grants this right (d). A number of limitations on this right are also available: Any interest and public interest of the Scheduled Tribe.
- reside anywhere on India’s territory: the right states that Indians have a right to reside anywhere within India’s territory.
- Practice or perform any profession, business or trade.
This freedom is a basic right which is regarded as a citizen’s natural right. None of this freedom is simultaneously absolute but under reasonable constraints precisely laid down in Article 19,(2) to (6).
- Restrictions must be made reasonable.
- Restrictions must be imposed (forcing people to accept new laws) for the purposes of accomplishing one or more of the items referred to in the respective article 19 clauses. (The restriction may be imposed only in the following circumstances).
(Article 20) Protection in connection with criminal convictions
Art.20(1). Protection against Ex-post facto law:-
No one can be convicted (found or proven guilty; the jury found them guilty of fraud) of an offence unless they violating a ‘law in force’ at the time the act was committed It indicates that an act is not illegal at the time it is committed it is performed. It can be considered a crime at any point after it has occurred. Art.20(2) double Jeopardy
For the same offence, nobody shall be convicted and punished more than once.
Art.20(3). privilege against self- incrimination
No one charged with a crime can be compelled to testify against himself. The prosecution has the duty/obligation to prove the offences
Life and Personal Liberty (Article 21)
“Nobody, except through law,” pursuant to Article 20, “will be deprived of its life and freedom except where the benefit considered important is specified.”.As a result, the constitution protects anyone from being deprived of their life or liberty without due process, and in the event of such a deprivation, the courts can order their release. The protection afforded by this Article will benefit both citizens and non-citizens.
Personal Liberty” was given a narrow meaning until A.K. Gopalan v. Union of India, but Maneka Gandhi v. Union of India broadened its scope.
Since that time, the Supreme Court has consistently expanded the scope of Article 21 to include almost all of the rights that go into establishing a person’s personality. The right to life involves not only the right to live, but also the right to live with all of one’s limbs and faculties, without which one’s life would be meaningless.
Arbitrary detention and arrest (Article 22)
Article 22 grants the following rights to the person detained by police:
- The right to appear before a judge within 24 hours of arrest.
- The right, as soon as possible, to be informed of the grounds for his arrest/arrest and to be defended by a counsel or advocate of his or her choice.
- The right not to be detained for more than 24 hours without a magistrate’s order
However, in accordance with Clause (3) of the Article, Clause (1) and (2), the alien enemy and the arrested and detained in accordance with the provisions of precautionary detention rules shall not have the rights provided for by Clause (1) and (3) and (2).
Right against Exploitation (Article 23-24)
- In Article 23 the trafficking in people and federal and other such forms of forced labor is strictly prohibited.
- The violation/infringement of these provisions is punishable by law.
- Prohibition of children’s occupations: Article 24 prohibits the employment in any factory of children under the age of 14. Detailed child labor guidelines C Mehta vs. State of T.N. AIR 1993, S.C. 699 were issued by the Supreme Court(S.C.).
Right to freedom and religion (Article 25-28)
India is a secular nation, with no State owing any religion, but the Indian Republic is not anti-religious.
In Article 25 everyone is entitled to freedom of conscience, free practice and religion.
Article 26 ensures that religious and charity institutions can be established and maintained, and that all religious matters or issues can be managed independently.
Article 27 states, if the proceeds are specifically suitable for the promotion or maintenance in particular of any religion or religious denomination, that no one shall be obligated to pay any charges.
Article 28 lays down that:
Religious instruction is totally prohibited in the state-run educational institution.
- Religious instruction may be imparted in state-aided denominational institutions, but individuals have the freedom to attend or not attend such instructions.
- Religious instruction may be given in state-assisted denominational institutions, however, they are free to attend such directives or not to attend them. • There is no prohibition even if religious instruction is administered by the State. • If that institution was founded under any endowment or trust requiring religious instructions to be given in that institution. But people who attend such an institution are entitled to participate and has the right to attend such institution.
Cultural and educational rights (Article 29-30)
Article 29(1) ensures that all citizens with a unique language, script, or customs have the right to preserve that language, script, or customs. Unlike Art.19(1), Art.29(1) is not sub. to any reasonable restrictions.
Article 29(2) is general and applies to all citizens whether they belong to minority or majority groups and relates to admission into an educational institution that is aided or maintained by state funds. It stipulates that no citizens shall be denied admission only on the basis of religion, caste, race, language or any of them in those institutions
Article 30(1) provides for the right to set up and manage the educational institutions of their choice for all minorities, whether on the basis of language or religion.
Article 30(2) stipulates that the state shall not discriminate/separate in granting assistance to schools on account of having the minority in charge of education, either on the basis of religious or linguistic grounds.
‘Constitutional Remedies’ (article 32-35)
Art. 32 ensures the implementation of F.R. It’s a preventative measure rather than a substantive one. The remaining Articles 33 to 35 address auxiliary questions and do not develop or assure any rights. It is a basic jurisprudential principle that where there is a right, there must be a remedy, and that rights given without a remedy are useless.
While remedies are provided by constitution and ordinary legislation, Article 32 constitutes for a person whose fundamental right has been violated the fundamental right to transfer to S.C. through appropriate procedure for the enforcement of that fundamental right. When a fundamental right is also available against private individuals, such as the rights under Art.17, 23, and 24, the Supreme Court (S.C.) can always be approached to recover damages for such infringements by individuals.
Article 34 is primarily concerned with granting legal indemnity for acts committed while martial law is in effect.
Where Parliament is empowered explicitly to legislate restricting a fundamental right, Article 35 states that it is authorised by the legislature by itself.
Basic Characteristics of Amendments to Fundamental Rights:-
Of course, ordinary legislation cannot change any part of the Indian Constitution unless it is authorized by the Constitution, but an amendment Act passed under Article 368 can change all parts of the Constitution except the fundamental features (F.R).
Golak nath vs. Punjab state, in this case,
S.C. overruled its two previous decisions by stating that Fundamental Rights, as embodied in Part III, had obtained a “transcendental” position from the Constitution in such a way that no constitutionally functioning authority, including the Parliament exercising the amending powers pursuant to Art (F.R.).
But by the 24th Amendment Act, 1971, Article13 and 368, which override the S.C. majority decision, in the Golak nath versus the State of Punjab, it was clarified that basic rights were alterable according to the procedure set out in Article368.The majority decision in the case of Kesavnanda bharti upheld the validity of the amendments and also overruled the case of Golak nath, stating that it is the Parliament’s responsibility to amend fundamental rights pursuant to Article 368 that make no exceptions in favour of fundamental rights; nor do Acts amending the Constitution itself contained in Article 13. At the same time the case of Kesavnanda also established that there had been implicit restrictions on the power to “amend” and that the “basic features” of the Constitution could not be amended by the power.
The judgment innovative ‘basics’ doctrine, to be removed only by a bench larger than the ’13 judges,’ constitutes a limitation that prevents Parliament from drastically amending the Constitution by acting by a special majority. Be prepared for the bench in Kesavanada’s case to overturn the decisions in that case. In the meantime, the majority of the Constitutional Bench, relying on Kesavnanda case, has declared Article 368’s clauses (4) and (5) unconstitutional.
Minerva Mills vs. Union of India, A. 1980 S.C. 1789
The Supreme Court declared invalid in this case the provisions set forth by Act 42nd Constitutional Amendment, 1976.
Woman rao case (1981)
After 24 April 1973, the Supreme Court stated that the basic constitutional structure cannot be changed by any amendment act and that the amendments would apply to the amendments.
Parliament can thus, from now on, make any type of modification and even modify basic rights, but cannot amend the basic structure.
Conclusion on Fundamental Rights
We can now say that there is no hard and fast rule for the fundamental characteristics of the constitution.. Various judges have different opinions on the fundamental structure of theory. But at one point they have similar positions that Parliament cannot destroy, alter or emasculate the ‘basic structure’ or the constitutional frameworks. In determining the fundamental elements of the basic structure of a constitution, there can be no difficulty if the historical background and the Preamble, the entire scheme of the constitution and its relevant provisions including Article 368 are acknowledged.
Therefore the interpretation of the judiciary is mandatory to safeguard the state of welfare, fundamental rights, unity and integrity of the nation, the democratic sovereign republic and freedom of thought, expression, faith, and worship. We cannot say that even the Parliament and the Judiciary are above in the Constitution.