Fundamental Rights in India
Encyclopedia
'Part III - Fundamental Rights' is a charter of rights
contained in the Constitution of India
. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India
. These include individual rights common to most liberal democracies
, such as equality before law
, freedom of speech
and expression, freedom of association
and peaceful assembly
, freedom to practice religion
, and the right to constitutional remedies for the protection of civil rights by means of writ
s such as habeas corpus
. Violations of these rights result in punishments as prescribed in the Indian Penal Code
, subject to discretion of the judiciary
. The Fundamental Rights are defined as basic human freedoms
which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion
, caste
, creed
, color
or Gender
. They are enforceable by the court
s, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights
, the United States Bill of Rights
and France's Declaration of the Rights of Man
.
The seven fundamental rights recognised by the constitution are: link http://lawmin.nic.in/coi/coiason29july08.pdf
1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2) Right to freedom which includes speech and expression, assembly, association or union, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality, right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice; and
6) Right to constitutional remedies for enforcement of Fundamental Rights.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability
and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour
. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.
(1689), the United States Bill of Rights
(approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man
(created during the revolution of 1789
, and ratified on 26 August 1789). Under the educational system of British Raj
, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and Britishers political parties.
In 1919, the Rowlatt Act
gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience
throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.
In 1928, the Nehru Commission
composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion
status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress
(the largest Indian political party of the time) adopted resolutions committing itself to the defense of fundamental civil rights, as well as socio-economic rights such as the minimum wage
and the abolition of untouchability
and serfdom
. Committing themselves to socialism
in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR
, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.
When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India
, composing of elected representatives under the presidency of Rajendra Prasad
. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws. Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru
and Sardar Vallabhbhai Patel
became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations
General Assembly
adopted the Universal Declaration of Human Rights
and called upon all member states to adopt these rights in their respective constitutions.
The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee.
All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court
and the High Courts
for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation
". In some cases, High Court judges have acted on their own on the basis of newspaper reports.
These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech
and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens. The right to equality in matters of public employment cannot be conferred to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability
and also prohibits begar
. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament
cannot alter the basic structure of the constitution. Features such as secularism
and democracy
fall under this category. Since the fundamental rights can only be altered by a constitutional amendment
, their inclusion is a check not only on the executive branch
, but also on the Parliament
and state legislatures.
A state of national emergency
has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President
may by order suspend the right to move court for the enforcement of other rights as well.
The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:
The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency.
The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labor), and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution. Begar
, practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution
is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription
is covered by this provision.
, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism
in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice.
Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. No person shall be compelled to pay taxes for the promotion of a particular religion. A State run institution cannot impart education that is pro-religion. Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.
As India is a country of many languages
, religions
, and cultures
, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop it. No citizen can be discriminated against for admission in State or State aided institutions.
All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution. But the right to administer does not mean that the State can not interfere in case of maladministration. In a precedent-setting judgment in 1980, the Supreme Court held that the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission.
of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus
, mandamus
, prohibition
, quo warranto
and certiorari
. When a national or state emergency is declared, this right is suspended by the central government.
, the right to economic assistance in case of unemployment
, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in the Directive Principles of state policy. The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency
. The provisions of acts like the Maintenance of Internal Security Act
(MISA) and the National Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism
and political violence, without safeguards for civil rights
. The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality is criminalized in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peacably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.
"Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion
and to make freedom of expression more legitimate. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution
. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption
is perceived to exist among public officials and politicians worldwide. The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the Citizenship (Amendment) Bill, 2003.
which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority
of the house — whether the Lok Sabha
or Rajya Sabha
.
The right to education at elementary level has been made one of the fundamental rights under the Eighty-Sixth Amendment of 2002.
under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose off property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.
The liberalisation of the economy and the government's initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property. The Supreme Court has sent a notice to the government questioning why the right should not be brought back but in 2010 the court rejected the PIL
As in 2007 the supreme court unanimously said that the fundamental rights are a basic structure of the constitution and cannot be removed or diluted.
Prime Minister Manmohan Singh announced the operationalisation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will be binding on the part of the local and State governments to ensure that all children in the 6-14 age group get schooling. As per the Act, private educational institutions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the Finance Commission has given Rs. 25,000 crore to the States for implementing the Act. The Centre has approved an outlay of Rs.15,000 crore for 2010-2011.
The school management committee or the local authority will identify the drop-outs or out-of-school children aged above six and admit them in classes appropriate to their age after giving special training.
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
contained in the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India
Indian nationality law
The Indian citizenship and nationality law and the Constitution of India provides single citizenship for the entire country. The provisions relating to citizenship at the commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India...
. These include individual rights common to most liberal democracies
Liberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
, such as equality before law
Equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
, freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and expression, freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
and peaceful assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, freedom to practice religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, and the right to constitutional remedies for the protection of civil rights by means of writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s such as habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. Violations of these rights result in punishments as prescribed in the Indian Penal Code
Indian Penal Code
Indian Penal Code is the main criminal code of India. It is a comprehensive code, intended to cover all substantive aspects of criminal law. It was drafted in 1860 and came into force in colonial India during the British Raj in 1862...
, subject to discretion of the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
. The Fundamental Rights are defined as basic human freedoms
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, caste
Caste
Caste is an elaborate and complex social system that combines elements of endogamy, occupation, culture, social class, tribal affiliation and political power. It should not be confused with race or social class, e.g. members of different castes in one society may belong to the same race, as in India...
, creed
Creed
A creed is a statement of belief—usually a statement of faith that describes the beliefs shared by a religious community—and is often recited as part of a religious service. When the statement of faith is longer and polemical, as well as didactic, it is not called a creed but a Confession of faith...
, color
Color
Color or colour is the visual perceptual property corresponding in humans to the categories called red, green, blue and others. Color derives from the spectrum of light interacting in the eye with the spectral sensitivities of the light receptors...
or Gender
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
. They are enforceable by the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights
Bill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
, the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
and France's Declaration of the Rights of Man
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
.
The seven fundamental rights recognised by the constitution are: link http://lawmin.nic.in/coi/coiason29july08.pdf
1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2) Right to freedom which includes speech and expression, assembly, association or union, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality, right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice; and
6) Right to constitutional remedies for enforcement of Fundamental Rights.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability
Untouchability
Untouchability is the social practice of ostracizing a minority group by segregating them from the mainstream by social custom or legal mandate. The excluded group could be one that did not accept the norms of the excluding group and historically included foreigners, nomadic tribes, law-breakers...
and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour
Unfree labour
Unfree labour includes all forms of slavery as well as all other related institutions .-Payment for unfree labour:If payment occurs, it may be in one or more of the following forms:...
. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.
Genesis
The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of RightsBill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
(1689), the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
(approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
(created during the revolution of 1789
French Revolution
The French Revolution , sometimes distinguished as the 'Great French Revolution' , was a period of radical social and political upheaval in France and Europe. The absolute monarchy that had ruled France for centuries collapsed in three years...
, and ratified on 26 August 1789). Under the educational system of British Raj
British Raj
British Raj was the British rule in the Indian subcontinent between 1858 and 1947; The term can also refer to the period of dominion...
, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and Britishers political parties.
In 1919, the Rowlatt Act
Rowlatt Act
The Rowlatt Act was a law passed by the British in colonial India in March 1919, indefinitely extending "emergency measures" enacted during the First World War in order to control public unrest and root out conspiracy...
gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience
Non-cooperation movement
The non-cooperation movement was a significant phase of the Indian struggle for freedom from British rule which lasted for years. This movement, which lasted from September 1920 to February 1922 and was led by Mohandas Gandhi, and supported by the Indian National Congress. It aimed to resist...
throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.
In 1928, the Nehru Commission
Nehru Report
The "Nehru Report" was a memorandum outlining a proposed new Dominion constitution for India. It was prepared by a committee of the All Parties Conference chaired by Motilal Nehru with his son Jawaharlal acting as secretary...
composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
(the largest Indian political party of the time) adopted resolutions committing itself to the defense of fundamental civil rights, as well as socio-economic rights such as the minimum wage
Minimum wage
A minimum wage is the lowest hourly, daily or monthly remuneration that employers may legally pay to workers. Equivalently, it is the lowest wage at which workers may sell their labour. Although minimum wage laws are in effect in a great many jurisdictions, there are differences of opinion about...
and the abolition of untouchability
Untouchability
Untouchability is the social practice of ostracizing a minority group by segregating them from the mainstream by social custom or legal mandate. The excluded group could be one that did not accept the norms of the excluding group and historically included foreigners, nomadic tribes, law-breakers...
and serfdom
Serfdom
Serfdom is the status of peasants under feudalism, specifically relating to Manorialism. It was a condition of bondage or modified slavery which developed primarily during the High Middle Ages in Europe and lasted to the mid-19th century...
. Committing themselves to socialism
Socialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR
Constitution of the Soviet Union
There were three versions of the constitution of the Soviet Union, modeled after the 1918 Constitution established by the Russian Socialist Federative Soviet Republic , the immediate predecessor of the Union of Soviet Socialist Republics....
, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.
When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India
Constituent Assembly of India
The Constituent Assembly of India was elected to write the Constitution of India, and following independence served as the nation's first Parliament.-Nature of the Assembly:...
, composing of elected representatives under the presidency of Rajendra Prasad
Rajendra Prasad
Dr. Rajendra Prasad was an Indian politician and educator. He was one of the architects of the Indian Republic, having drafted its first constitution and serving as the first president of independent India...
. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws. Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru
Jawaharlal Nehru
Jawaharlal Nehru , often referred to with the epithet of Panditji, was an Indian statesman who became the first Prime Minister of independent India and became noted for his “neutralist” policies in foreign affairs. He was also one of the principal leaders of India’s independence movement in the...
and Sardar Vallabhbhai Patel
Sardar Vallabhbhai Patel
Vallabhbhai Jhaverbhai Patel was an Indian barrister and statesman, one of the leaders of the Indian National Congress and one of the founding fathers of India...
became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
adopted the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
and called upon all member states to adopt these rights in their respective constitutions.
The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee.
Significance and characteristics
The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State. According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights.All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
and the High Courts
High Courts of India
India's unitary judicial system is made up of the Supreme Court of India at the national level, for the entire country and the 21 High Courts at the State level. These courts have jurisdiction over a state, a union territory or a group of states and union territories...
for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation
Public interest litigation
In Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
". In some cases, High Court judges have acted on their own on the basis of newspaper reports.
These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens. The right to equality in matters of public employment cannot be conferred to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability
Untouchability
Untouchability is the social practice of ostracizing a minority group by segregating them from the mainstream by social custom or legal mandate. The excluded group could be one that did not accept the norms of the excluding group and historically included foreigners, nomadic tribes, law-breakers...
and also prohibits begar
Unfree labour
Unfree labour includes all forms of slavery as well as all other related institutions .-Payment for unfree labour:If payment occurs, it may be in one or more of the following forms:...
. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
cannot alter the basic structure of the constitution. Features such as secularism
Secularism
Secularism is the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries...
and democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
fall under this category. Since the fundamental rights can only be altered by a constitutional amendment
Amendment of the Constitution of India
Amendment of the Constitution of India is the process of making changes to the nation's fundamental law. Changes to the Indian constitution are made by the federal parliament. They must be approved by a super-majority in each house of the Parliament of India, and certain amendments must also be...
, their inclusion is a check not only on the executive branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
, but also on the Parliament
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
and state legislatures.
A state of national emergency
State of Emergency in India
A state of emergency in India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when he perceives grave threats to the nation from internal and external sources or from financial situations of crisis...
has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President
President of India
The President of India is the head of state and first citizen of India, as well as the Supreme Commander of the Indian Armed Forces. President of India is also the formal head of all the three branches of Indian Democracy - Legislature, Executive and Judiciary...
may by order suspend the right to move court for the enforcement of other rights as well.
Right to equality
Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following:- Equality before law: Article 14 of the constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State cannot discriminate any of the Indian citizens on the basis of their caste, creed, colour, sex,gender, religion or place of birth.
- Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.
- Equality in matters of public employment: Article 16 of the constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion. According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred to Overseas citizens of India.
- Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchabilityUntouchabilityUntouchability is the social practice of ostracizing a minority group by segregating them from the mainstream by social custom or legal mandate. The excluded group could be one that did not accept the norms of the excluding group and historically included foreigners, nomadic tribes, law-breakers...
. Practice of untouchability is an offense and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.
- 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, MilitaryMilitary rankMilitary rank is a system of hierarchical relationships in armed forces or civil institutions organized along military lines. Usually, uniforms denote the bearer's rank by particular insignia affixed to the uniforms...
and academicAcademic rankThis list of academic ranks identifies the hierarchical ranking structure found amongst scholars in academia, whether tenured or non-tenured. The lists below refer specifically to colleges and universities throughout the world, although other institutions of higher learning may follow a similar...
distinctions can be conferred on the citizens of India. The awards of Bharat RatnaBharat RatnaBharat Ratna is the Republic of India's highest civilian award, awarded for the highest degrees of national service. This service includes artistic, literary, and scientific achievements, as well as "recognition of public service of the highest order." Unlike knights, holders of the Bharat Ratna...
and Padma VibhushanPadma VibhushanThe Padma Vibhushan is the second highest civilian award in the Republic of India. It consists of a medal and a citation and is awarded by the President of India. It was established on 2 January 1954. It ranks behind the Bharat Ratna and comes before the Padma Bhushan...
cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15 December 1995, upheld the validity of such awards.
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 that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the following six freedoms:- Freedom of speechFreedom of speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.
- Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.
- Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.
- Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemicEpidemicIn epidemiology, an epidemic , occurs when new cases of a certain disease, in a given human population, and during a given period, substantially exceed what is expected based on recent experience...
s.
- Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion. Article 370Article 370Article 370 of the Indian constitution grants special autonomous status to Jammu and Kashmir.-Text of Article 370:In view of its importance the text of the article 370 is reproduced below:Article 370 of the Constitution of India...
restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or propertyReal propertyIn English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
in Jammu & Kashmir.
- Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade.
The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:
- Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. "Compulsion" in this article refers to what in law is called "DuressDuressIn jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...
" (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardyDouble jeopardyDouble jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
, that is, no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law. This principle was first established in the Magna CartaMagna CartaMagna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
.
- Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. This means that a person's life and personal liberty can only be disputed if that person has committed a crime. However, the right to lifeRight to lifeRight to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
does not include the right to dieRight to dieThe right to die is the ethical or institutional entitlement of the individual to commit suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline...
, and hence, suicideSuicideSuicide is the act of intentionally causing one's own death. Suicide is often committed out of despair or attributed to some underlying mental disorder, such as depression, bipolar disorder, schizophrenia, alcoholism, or drug abuse...
or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year. In 1996 however another Supreme Court ruling nullified the earlier one.) "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.
- In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age. Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008. It is now soon to be tabled in Parliament for approval before it makes a fundamental right of every child to get free and compulsory education.
- Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyerLawyerA lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
of his choice. Also an arrested citizen has to be brought before the nearest magistrateMagistrateA magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons detained under the Preventive Detention Act. Under preventive detentionPreventive detentionPreventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review.
The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency.
Right against exploitation
Unfree labour
Unfree labour includes all forms of slavery as well as all other related institutions .-Payment for unfree labour:If payment occurs, it may be in one or more of the following forms:...
, practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...
is covered by this provision.
Right to freedom of religion
Right to freedom of religionReligion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism
Secularism
Secularism is the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries...
in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice.
Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. No person shall be compelled to pay taxes for the promotion of a particular religion. A State run institution cannot impart education that is pro-religion. Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.
Cultural and educational rights
Languages of India
The languages of India belong to several language families, the major ones being the Indo-European languages—Indo-Aryan and the Dravidian languages...
, religions
Religion in India
Indian religions is a classification for religions that originated in the Indian subcontinent; namely Hinduism, Jainism, Buddhism and Sikhism. These religions are also classified as Eastern religions...
, and cultures
Culture of India
India's languages, religions, dance, music, architecture, food and customs differ from place to place within the country, but nevertheless possess a commonality....
, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop it. No citizen can be discriminated against for admission in State or State aided institutions.
All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution. But the right to administer does not mean that the State can not interfere in case of maladministration. In a precedent-setting judgment in 1980, the Supreme Court held that the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission.
Right to constitutional remedies
Right to constitutional remedies empowers the citizens to move a courtCourt
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
, prohibition
Prohibition (writ)
A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it.This...
, quo warranto
Quo warranto
Quo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...
and certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
. When a national or state emergency is declared, this right is suspended by the central government.
Critical analysis
The fundamental rights have been criticised for many reasons. Political groups have demanded that the right to workRight to work
The right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so...
, the right to economic assistance in case of unemployment
Unemployment
Unemployment , as defined by the International Labour Organization, occurs when people are without jobs and they have actively sought work within the past four weeks...
, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in the Directive Principles of state policy. The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency
State of Emergency in India
A state of emergency in India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when he perceives grave threats to the nation from internal and external sources or from financial situations of crisis...
. The provisions of acts like the Maintenance of Internal Security Act
Maintenance of Internal Security Act
The misa was a controversial law passed by the Indian parliament in 1971 giving the administration of Prime Minister Indira Gandhi and Indian law enforcement agencies super powers - indefinite "preventive" detention of individuals, search and seizure of property without warrants, and wiretapping -...
(MISA) and the National Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
and political violence, without safeguards for civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
. The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality is criminalized in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peacably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.
"Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion
Public opinion
Public opinion is the aggregate of individual attitudes or beliefs held by the adult population. Public opinion can also be defined as the complex collection of opinions of many different people and the sum of all their views....
and to make freedom of expression more legitimate. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption
Political corruption
Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
is perceived to exist among public officials and politicians worldwide. The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the Citizenship (Amendment) Bill, 2003.
Amendments
Changes to the fundamental rights require a constitutional amendmentConstitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority
Majority
A majority is a subset of a group consisting of more than half of its members. This can be compared to a plurality, which is a subset larger than any other subset; i.e. a plurality is not necessarily a majority as the largest subset may consist of less than half the group's population...
of the house — whether the Lok Sabha
Lok Sabha
The Lok Sabha or House of the People is the lower house of the Parliament of India. Members of the Lok Sabha are elected by direct election under universal adult suffrage. As of 2009, there have been fifteen Lok Sabhas elected by the people of India...
or Rajya Sabha
Rajya Sabha
The Rajya Sabha or Council of States is the upper house of the Parliament of India. Rajya means "state," and Sabha means "assembly hall" in Sanskrit. Membership is limited to 250 members, 12 of whom are chosen by the President of India for their expertise in specific fields of art, literature,...
.
The right to education at elementary level has been made one of the fundamental rights under the Eighty-Sixth Amendment of 2002.
Right to property
The Constitution originally provided for the right to propertyRight to property
The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...
under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose off property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.
The liberalisation of the economy and the government's initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property. The Supreme Court has sent a notice to the government questioning why the right should not be brought back but in 2010 the court rejected the PIL
As in 2007 the supreme court unanimously said that the fundamental rights are a basic structure of the constitution and cannot be removed or diluted.
Right To Education
Article 21A - On 1 April 2010, India joined a group of few countries in the world, with a historic law making education a fundamental right of every child coming into force. Making elementary education an entitlement for children in the 6-14 age group, the Right of Children to Free and Compulsory Education Act will directly benefit children who do not go to school at present.Prime Minister Manmohan Singh announced the operationalisation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will be binding on the part of the local and State governments to ensure that all children in the 6-14 age group get schooling. As per the Act, private educational institutions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the Finance Commission has given Rs. 25,000 crore to the States for implementing the Act. The Centre has approved an outlay of Rs.15,000 crore for 2010-2011.
The school management committee or the local authority will identify the drop-outs or out-of-school children aged above six and admit them in classes appropriate to their age after giving special training.
See also
- Fundamental Rights, Directive Principles and Fundamental Duties of IndiaFundamental Rights, Directive Principles and Fundamental Duties of IndiaThe Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. These sections comprise a constitutional bill of rights ...
- Directive Principles in IndiaDirective Principles in IndiaThe Directive Principles of State Policy are guidelines to the central and state governments of India, to be kept in mind while framing laws and policies...
- Constitution of IndiaConstitution of IndiaThe Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
- Government of IndiaGovernment of IndiaThe Government of India, officially known as the Union Government, and also known as the Central Government, was established by the Constitution of India, and is the governing authority of the union of 28 states and seven union territories, collectively called the Republic of India...
- Parliament of IndiaParliament of IndiaThe Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
- Writs in Indian law