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Fundamental Rights in Indian Constitution

By : Bijoy Krishna Paul on 02 June 2011 Report Abuse Print Print this
 



Introduction:

The constitution of India seeks to secure the liberty of thought, expression, belief and faith of the people of the country and also give equality of status and of and of opportunity, and dignity of individual. With this object fundamental rights are introduced………..

 

Concept:

With the beginning of the 17th century one thought was grew in the mind of the political philosopher “that the man by birth had certain which are universal and in alienable, and he could not be deprived of them. The declaration of American Independence 1776, state that all man are created equal, that they endowed by their creator by certain inalienable right among those: life, liberty and the pursuit of happiness and allow them to play freely, so that human liberty may be preserved, human personality developed and an effective cultural , social and democratic life promoted.

 

Position in England:

The constitution of England is unwritten. No code of fundamental right exists. In the doctrine of the sovereignty of Parliament in England it does not envisage a real check on the power of the parliament which is, as a matter of legal theory, free to make any law. The object here is deferent way to protect the fundamental right not on the constitutional guarantee but on public opinion, good sense of the people, strong common law and individual liberty and the parliamentary form of government.

 

Position in America:

The framer of the American Constitution was apprehensive of tyranny, not only from the executive but also from the legislature. American went further to assert that there had to be a law superior to the legislature itself and that the restraint of such paramount written law could only save them from the fears of absolution and autocracy which are ingrained in the human nature.

 

Position in India:

As regard India Simon Commission and Joint Parliamentary Committee had reject the idea of enacting declaration of Fundamental right on the ground that the abstract declaration is useless. Although the demand of the people was not met by the British Parliament under the government of India Act 1935 yet the enthusiasm of the people to have such right in the constitution was not impaired. The recommendation of the Nehru Committee was included in the constitution in 16 May’1946 by the cabinet mission.

 

Part III of the Constitution includes the following six categories of rights:

 

i) Right to Equality: Article 14 to 18 of the Constitution deal with equality and its various facets. The general principle finds expression in article 14. Article 14 says that “the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. The expression ‘equality before the law’ is a declaration of equality of all persons within the territory of Indi, implying thereby the absence of any special privilege in favor of any individual. Every person whatever is his rank is subject to the jurisdiction of the ordinary courts. The second expression ‘equal protection of the laws’ based on the last clause of the first section of fourteenth Amendment of American Constitution that equal protection shall be secured by all the person of the country. Article 14 apply to all person not only limited to citizens. But there is some confusion that all persons are not equal in all respects. Application of the same laws uniformly to all of them will, therefore, be inconsistent with the principle of equality.

 

ii) Right to Freedom: Article 19 to 22 of the Constitution deal with the right to Freedom. This right include the following six freedom of citizen of the country:

 

a)   Freedom of speech and expression: It need not to be mentioned as to how important the freedom of speech and expression in democracy is. A democratic government attaches a great importance to this freedom, because without freedom of speech and expression the basis of democracy can not be made.

 

b)   Assemble peaceably and without arms: This is the next right of citizen to assemble peacefully and without arms. Calling an assembly and putting one’s views before it is also intermixed with the right to speech and expression discussed above.

 

c)    Form association or unions: The freedom of association includes freedom to hold meeting and takeout processions without arms. Right to form association for unions is also guaranteed so that people are free to have the members entertaining similar views. This right is also subject to some restriction: Sovereignty and integrity of India, public order and morality.

 

d)   Move freely, throughout the territory of India: This right is given under article 19(1)(d). There is also some restriction fall on this right: interest of the general public and interest of any Scheduled Tribe.

 

e)   Reside and settle in any part of the territory of India: This right says that the citizen of India has the right to reside in any part within the territory of India.

 

f)    Practice any profession or to carry on any occupation, trade or business.

 

This freedom is those great and basic rights which are recognized as the natural right of the citizen. At the same time none of this freedom is absolute but subject to reasonable restriction specified under clause (2) to (6) of the article 19. This restriction is imposed only on the following condition:

 

a)   The restriction can be imposed by law and not by any executive order.

 

b)   Restriction must be reasonable.

 

c)    Must be imposed for achieving one or more of the objects specified in the respective clauses of article 19.

 

iii) Right against Exploitation: Article 23 and 24 of the constitution of India deal with this right. Taking them one by one they guarantee certain right by imposing certain prohibitions not only against the state but also against private persons.

 

a)   Article 23 imposes a complete ban on traffic in human beings, federal and other similar forms of forced labor. The contravention of these provisions is declared punishable by law. Thus a person who is asked to do any labor without payment or with payment less than his desire can complain against the violation of his fundamental right.

 

b)   Prohibition of employment of children: Article 24prohibits the employment of children below fourteen year’s in any factory. The Supreme Court issued detailed guidelines as to child labor M.C.Mehta Vs State of T.N. AIR 1993 S.C 699.

 

iv) Right to freedom of Religion: With Article 25 begins a group of provisions ensuring equality of all religions thereby promoting secularism. Article 25 give all the person the following right:

 

a)   Freedom of conscience, and

 

b)   The right freely to profess practice and propagate religion.

 

The Supreme Court in State of Karnataka Vs Dr. Praveen Bhai Thogadia, (2004) held that secularism means that State should have no religion of its own and each person must get an assurance from the state that he has the protection of law to freely profess, practice and propagate his religion and freedom of conscience. This right not only limited to the citizen but to all person including aliens and individuals exercising their rights individually or through Institution.

 

Although no clear cut distinction is possible, yet it may be said that while Article 25 discussed above protect the religious freedom of individual.

 

v)   Cultural and Educational Right [Rights of Minorities]: The word minority has not been defined in the constitution. Supreme Court said that minority should be determined in relation to a particular impugned legislation. The determination of the minority should be based on the area of operation of a particular piece of legislation. Interest of the minority should be protect by the following right:

 

a)   Any section of the citizen residing in the territory of India or any part thereof having a distinct language and culture of its own has the right to conserve the same. Thus citizen from Tamil Nadu or Bengal has the right to conserve their language or culture if they are living in Delhi a Hindi speaking area.

 

b)   No citizen can be denied in the admission into any educational institution maintained by the state or receiving aid out of state funds on ground only of religious, race, cast, language or any of them.

 

vi) Right to Constitution Remedies: Article 32 guarantees the enforcement of Fundamental Rights. It is remedial and not substantive in nature. The rest of the Article 33 to 35 relate to supplementary matters and do not create or guarantee any right. It is a cardinal principle of jurisprudence that where there is a right there is a remedy and if rights are given without remedy, they are of no use. While remedies are available in the constitution and under the ordinary laws, Article 32 makes it a fundamental right that a person whose fundamental right is violated, has the right to move to the Supreme Court by appropriate proceedings for the enforcement of this fundamental right. Where a fundamental right is also available against the private persons such as the right under Article 17, 23 and 24, the Supreme Court can always be approached for appropriate remedy against the violation of such rights by private individuals.

 

Article 33 authorizes parliament to restrict the application of Fundamental rights in relation to members of armed forces, Para –military forces, police forces.

 

Article 34 is primarily concerned with granting indemnity by law in respect of acts done during operation of martial law.

 

Article 35 provide that wherever parliament has by an express provision been empowered to make a law restricting a fundamental right Parliament alone can do so.

 

  


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3 Comments for this Article



Democratic Indian

Democratic Indian

Wrote on 02 June 2011

Yes you are correct that practically DPSP overrides the FR. Constitution has been written in a manner that it can be practically subverted by those in power and hence defeating the very purpose of guarantees by Constitution. Example Article 311 wherein doctrine of pleasure has been given importance over the Constitution. President or Governor are creatures of Constitution but the public servants being appointed by these people are not practically answerable to the Constitution or the laws under it so long they have the "pleasure" of the appointing authorities. Therefore it is no surprise they act like Hitler and indulge in open corruption. Also I think our courts have not been following the priciple of strict scrutiny in judicial review of laws. I had raised this question at http://www.lawyersclubindia.com/forum/Is-Strict-Scrutiny-followed-in-Judicial-Review-of-Laws-by-Co-33712.asp



Member (Account Deleted)

Member (Account Deleted)

Wrote on 02 June 2011

but practically the DPSP over rides the F.R



Democratic Indian

Democratic Indian

Wrote on 02 June 2011

Without the basic natural right , human right and fundamental right of Right to Keep and Bear Arms, the fundamental rights loose force. The Right to Keep and Bear Arms is among one of the most important human, natural and fundamental rights because its infringement can lead to infringement of various other fundamental rights. That is why there is 2nd Amendment in US Constitution. RKBA was also explicitly enumerated in draft Constitution of India. Unfortunately in order to fool the people of this country, some cunning conspirators removed the explicit enumeration. Still RKBA is guaranteed under Article 19 and 21. This point you have missed in your article. For details please read http://www.lawyersclubindia.com/forum/RKBA-guaranteed-under-Articles-19-and-21-of-Constitution-36011.asp












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