Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


Key takeaways

  • The Articles 12-35 enlisted in Part III of the Constitution of India deals with Fundamental Rights. They are justiciable, enforceable, but not absolute.
  • Sardar Vallabhai Patel chaired the Advisory Committee on Fundamental Rights of the Constituent Assembly.
  • Article 12 defines ‘State’, and Article 13 deals with judicial review.
  • There are six fundamental rights which are:
  • Right to Equality (Articles 14-18)
  • Right to Freedom (Articles 19-22)
  • Right against Exploitation (Articles 23-24)
  • Right to Freedom of Religion (Articles 25-28)
  • Cultural and Educational Rights (Articles 29-30)
  • Right to Constitutional Remedies (Article 32)

Introduction

Fundamental Rights guaranteed by the Constitution are one of the salient features of the Indian legal system. These rights are enlisted in Articles 12-35 (Part III) of the Indian Constitution. This part is called the ‘magna carta’ of our Constitution. These rights also form the basic structure of our Constitution. They are justiciable, that is in case of violation the court can be approached in order to enforce them, but not all are absolute, or immune from restrictions.Fundamental Rights are negative obligations of the State, that is, they are injunctions against the actions of the State.

An Advisory Committee with the responsibility to draft Fundamental Rights of the Constitution was chaired by Sardar Vallabhai Patel and it constituted of B.R. Ambedkar, Diwan Bahadur, Acharya J. B. Kripalani, Rajkumari Amrit Kaur, K.M. Panikkar, and Dr. S. P. Mookerjee as members.

After the deletion of Right to Property which was Article 31 by the 44th Amendment, and the addition of Right to Education by the 86th Amendment, we have six fundamental rights. A comprehensive understanding of Fundamental Rights is important for both Legal Reasoning and Legal Aptitude sections in all law entrance exams.

Article 12

According to the Constitution, ‘State’ is the entity against which fundamental rights are enforceable. Article 12 of the Indian Constitution defines it as inclusive of (1) the Union and State Governments, (2)the Parliament and State legislatures, and(3) alllocal or other authorities within the territory of India or under the control of the Government of India.

Article 13

Under Article 13 of the Indian Constitution,any legislation that takes away or abridges the rights of people shall remain void, to the extent of such contravention.

The concept of Judicial Review is also given under this Article. It gives Supreme Court and High Courts the power to decide on the legitimacy and lawfulness of a decision or action made by the Executive and Legislature. This concept was taken from the US Constitution.

1. Right to Equality (Articles 14–18)

  • Article 14- Equal treatment of everyone before law, and equal protection of law. It is based upon the principle that, under same circumstances, law will treat all people in the same manner. The concepts of ‘equality before law’, and ‘equal protection of law’ are from the English and US Constitutions respectively.
  • Exceptions to Article 14 are:
  • In case of civil proceedings against President, there should be prior notice before 2 months and criminal proceedings cannot be taken against the President during an ongoing term.
  • Legislations can be brought for differential treatment on a reasonable basis.
  • No member of Parliament or State Legislature has the obligation to appear before the court in any case of criminal or civil while the session is going on, or stand answerable to any court for the speeches, opinion or vote given in the House.
  • Article 15- Prevention of discrimination on grounds of religion, race, sex, place of birth or caste. This right ensures no citizen shall be denied access to public shops, restaurants, hotels, etc. or to wells, tanks, bathing ghats, roads, etc.

However, State can make special provisions for women and children, or for the advancement of any backward class or for persons belonging to SC/ST community.

  • Article 16- Equality of opportunity in public employment.

However, reservations can be made for persons of backward classes or any community that the State feels are inadequately represented in services under it.

  • Article 17- Abolition of Untouchability and prohibition of its practice. It makes any practice of such manner punishable by law. This includes denying entry to public shops or places of entertainment, places of worship, public institutions, denying access to tap water, reservoirs, roads, or any such amenities, or insulting someone using derogatory remarks.
  • Article 18- Abolition of all titles except military and academic

2. Right to Freedom (Article 19–22)

  • According to the Article 19, citizens shall have the following rights:

i. Freedom of speech and expression

ii. To assemble peaceably and without arms

iii. To form associations or unions

iv. To move freely throughout the territory of India

v. To reside and settle in any part of the territory of India

vi. To practice any profession, or to carry on any occupation, trade or business.

These rights are not absolute, that is, the State can impose reasonable restrictions on them. By the 44th amendment the Right to Property was removed and it was made an ordinary right. This was during the tenure of Smt. Indira Gandhi.

  • Article 20 deals with protection of persons in respect of conviction of offences. It prohibits the following:

a) ‘Ex-post facto' legislation, that is a person cannot be convicted of any offence which was not an offence under the law in force at the time of the commission of that act.

b)‘Double Jeopardy' that is, no person shall be prosecuted and punished for the same offence more than once.

c)Prohibition against Self-Incrimination that is, no person accused of any offence shall be compelled to be witness against himself.

  • Article 21 ensures that no person shall be deprived of his life or personal liberty except according to procedure established by law. It is not an absolute right. However, the restrictions imposed by the State should be fair, reasonable and just, and as per the procedure established by law.

The Articles 20 and 21 cannot be suspended even during Emergency.

  • The Article 21(A) which was included by the 86th Amendment ensures that the state shall provide free and compulsory education to all children between 6-14 years of age.
  • Article 22 deals with the protection against arrest and detention in certain cases. It is applicable to foreign nationals too. The procedural safeguards enlisted in this Article ensures that no person who is arrested shall be detained without being informed of the grounds of arrest. Any such person shall be defended by a lawyer of choice and should be produced before the nearest magistrate within 24 hours. It also gives protection to people arrested under preventive detention, that is, if they are detained without trial on the assumption that their release would not be in the best interest of society. The Article also authorises the Parliament to make laws providing for preventive detention along with safeguards to prevent misuse of this power.

3. Right against exploitation (Article 23–24)

  • Article 23 says that traffic in human being and beggar and other similar forms of forced labour are prohibited, and violation is punishable in accordance to law.
  • Article 24 prohibits employment of children below the age of 14 years in factories or other hazardous employments.

4.Right to Freedom of Religion (Article 25-28)

  • Article 25 ensures that every person is free to profess, practise and propagate any religion. This should not hamper societal morality and the peaceful coexistence of individuals.
  • Article 26 says that subject to public interest, every religious denomination or any section thereof shall have right to establish and maintain religious institution and can acquire and manage immovable property for itself.
  • Article 27 gives freedom from payment of tax for promotion of any particular religion.
  • Article 28 gives freedom as to relieve from religious instruction worship in certain educational institutions.

5. Cultural and Educational Rights (Article 29-30)

  • Article 29 guarantees to all citizens residing anywhere in India and "having a distinct language, script or culture" the right to conserve the same. No citizen can be denied admission to any educational institution maintained or aided by the State on the grounds only of religion, race, caste or language.
  • Article 30 confers upon a minority community the right to establish and administer educational institution of its choice.

6.Right to Constitutional Remedies (Article 32)

  • Article 32 ensures the right to approach Supreme Court if a fundamental right is violated. Dr B R Ambedkar found this Article to be the “very soul and heart of the Constitution”. According to this Article an individual, on violation of his fundamental rights can approach the Supreme Court through five kinds of writs which are the following:
  • Habeas Corpus (show me the body) – related to personal liberty in cases of illegal detentions and wrongful arrests.
  • Mandamus (we command) – directing public officials, governments, courts to perform a statutory duty.
  • Quo Warranto (by what authority)- to enquire by what warrant is a person holding public office.
  • Prohibition – directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
  • Certiorari (to be informed) – for re-examination of an order given by judicial, quasi-judicial or administrative authorities.
  • All these writs are subject to the doctrine of ‘Res Judicata’, except that of Habeas Corpus. This means that, in all other writs, the matter that has been once decided cannot be taken to the higher courts, which is not the case for Habeas Corpus.
  • It should also be remembered that the writs of Prohibition and Certiorari are issued against judicial and quasi-judicial bodies.

Conclusion

In conclusion, it is to be understood that the Fundamental Rights in our Constitution are well drafted in such a way that no citizen would be denied of them for unreasonable reasons. From its inception to this day, these rights have gone through an evolution, giving new interpretations reflecting the changes that society we live in undergoes. However, they have not compromised on the ideals they originally stood for.


"Loved reading this piece by Arundhathi?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Others, Other Articles by - Arundhathi 



Comments


update
Post a Suggestion for LCI Team
Post a Legal Query