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Scope of fundamental rights in our democracy

SCOPE OF FUNDAMENTAL RIGHTS IN OUR DEMOCRACY

Often legislation or making of the law by the Executive in our democratic process is dictated by agenda where the Governed has to repose confidence on the Elected to make new laws or amend the existing constraints in the implementation of laws based on recommendations of Law Commission or guidelines advised by the Supreme Court from time to time. At the outset the constitutional validity of enactment in terms of protection of fundamental rights of citizens is tested before the learned judges when there are blatant omissions and commissions including the status of fundamental rights of every citizen in the process of law making or the contents therein that are detrimental to the basic structure of our constitution.

Article 13 of our Constitution spells out that any laws that are inconsistent with or in derogation of fundamental rights are subject to judicial review or scrutiny.  It states that;

  1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
  2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
  3. In this article, unless the context otherwise requires,—
    • “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
    • “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

FUNDAMENTAL RIGHTS GUARANTEED UNDER THE CONSTITUTION

Fundamental Rights are covered under Part III of our Constitution. The paper highlights the contents to visualize the status as to how fundamental rights can always be put to stern test in the name of National Security, Nationalism, and exercise of private and political agenda even during pandemic and medical emergency situations. Courts deliver landmark verdicts from time to time whenever there is any infringement of fundamental rights to any citizens. Supreme Court performs the role of Guardian of Fundamental Rights, by examining the constitutionality of any statute or law passed besides promulgate orders for waiver and interpreter of Fundamental Rights all under the stipulated Basic structure of our Constitution. However, often these fundamental Rights are subject to challenges and legal scrutiny to give birth to new definitions and perspectives suited to changing needs of our society. The Rights are reviewed as under to the larger interest of humanity in general:

ARTICLE

FUNDAMENTAL RIGHT

REVIEW OF CHALLENGES

RIGHT TO EQUALITY

14

Equality before law

  • 1. Whether Law is equal for both Rich and the Poor?
  • 2. Whether Law gives special privileges to any person in terms of granting punishment for the same offence or crime?
  • 3. Whether Law is equal for the influential and the commoner?
  • 4. Whether Law giving immunity to persons on the basis of designated powers or positions?
  • 5. Whether Law gives citizenship to migrants of specific religious communities from particular countries?

15

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

1. Whether State promotes any specific religion to adhere to its’ political manifesto?

2. Whether election process in our country is casteless or caste free?

3.Whether equal opportunities are assured for both sexes in our system?

4.Whether development is uniform and  geographically spread across the nation.

16

Equality of opportunity in matters of public employment.

Whether country has achieved its’ core objectives on Reservation policies in terms of public employment?

17

Abolition of Untouchability

Whether every inch of our country practices the abolition of untouchability to prove equality amongst fellow citizens?

18

Abolition of titles

Whether “Titles” awarded by Foreign countries to Indian Citizens have been fully abolished?

RIGHT TO FREEDOM

19

Protection of certain rights regarding freedom of speech, etc

1.Whether the Right to freedom of speech and expression is absolute and not superimposed by the authority in power?

2.Whether the Right to assemble peaceably and without arms even for legitimate protests is absolute?

3.Whether the Right to  form associations or unions is being influenced by vested political interests?

4.Whether the Right to move freely throughout the territory of India especially during National Disasters or pandemics is uniformly defined under a Specific law?

5.Whether the Right to reside and settle in any part of the territory of India?

6.Whether the Right to practise any profession, or to carry on any occupation, trade or business is dictated or influenced by vested interests?

20

Protection in respect of conviction for offences

1.Whether any person is convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence and subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence?

2.Whether any person is prosecuted and punished for the same offence more than once.?

3.Whether any  accused of any offence shall be compelled to be a witness against himself.?

21

Protection of life and personal liberty

Whether any person is deprived of his life or personal liberty except according to procedure established by law.?

21A

Right to education

Whether the State provides free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine?

22

Protection against arrest and detention in certain cases

1. Whether person who is arrested is e detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice?

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

3. Whether any person is put under preventive detention for longer period than three months beyond the stipulated provisos in the law.

RIGHT AGAINST EXPLOITATION

23

Prohibition of traffic in human beings and forced labour.

Whether no person is exploited under human trafficking or beggary or forced labour in our country?

24

Prohibition of employment of children in factories, etc.

Whether there is no absolutely no child labour or employment in children in factories, etc?

RIGHT TO FREEDOM OF RELIGION

25

Freedom of conscience and free profession, practice and propagation of religion

No Challenges as our country is Secular on all respects as every citizen is entrusted the freedom of conscience and free profession, practice and propagation of religion.

26

Freedom to manage religious affairs

No Challenges as every citizen is entitled to have the freedom to manage any religious affairs.

27

Freedom as to payment of taxes for promotion of any particular religion.

No Challenges as every citizen enjoys the Freedom as to payment of taxes for promotion of any particular religion.

28

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

No Challenges as every citizen enjoys the Freedom as to attendance at religious instruction or religious worship in certain educational institutions

CULTURAL AND EDUCATIONAL RIGHTS

29

Protection of interests of minorities

Guaranteed but often subject to judicial review

30

Right of minorities to establish and administer educational institutions

Guaranteed but often subject to judicial review.

SAVING ON CERTAIN LAWS

31A

Saving of laws providing for acquisition of estates, etc

Absolutely Guaranteed

31B

Validation of certain Acts and Regulations.

Absolutely Guaranteed

31C

Saving of laws giving effect to certain directive principles

Absolutely Guaranteed

RIGHT  TO CONSTITUTIONAL REMEDIES

32

Remedies for enforcement of rights conferred by this Part

Often it has become beyond the reach of common man for enforcement of remedies

33

Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.

Power is absolute guaranteed under Parliamentary Democracy

34

Restriction on rights conferred by this Part while martial law is in force in any area

Power is absolute guaranteed under Parliamentary Democracy

35

Legislation to give effect to the provisions of this Part

Power is absolute guaranteed under Parliamentary Democracy

Fundamental Rights are vital for development of the personality of every individual and to preserve human dignity. Challenges in the exercise of these Rights often threat the democratic values embedded in our Constitution. The basic  structure  doctrine  found as our judicial  principle  reiterating the essence of our constitutional concepts should never be subjected to any alteration or destruction by any legislative process as the  fundamental rights  granted to each and every citizen of this country is paramount to stay in its true spirits.  Right to Life with Human Dignity forms part of every brick constructed in the huge monument of our Sovereign Socialist Secular Democratic Republic county studded with the concepts of social, economic and political Justice in tune with Liberty of thought, expression, belief, faith and worship and Equality of status and of opportunity to promote Fraternity assuring the dignity of each and every citizen in order to preserve and protect the unity and integrity of our Great Nation.   Challenges in the exercise of fundamental rights often calibrates or rejuvenates the spirit of democracy and makes us unique amongst the top democratic countries in the world.

 

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Published in Constitutional Law
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