Fundamental Rights in The Indian Constitution

ABSTRACT

The Fundamental Rights are the foundation of our Constitution and Democracy. They protect the people of the state from any unjustified rule. The aim of this article is to explain the importance, history, types, and amendments of Fundamental Rights and suggest the methods to make these Supreme laws even more powerful. The introduction and the development of the Fundamental Rights began in England nearly 800 yrs. ago. Later on, as different nations around the world started getting independent from colonial rule, they started making their own Constitutions and added Fundamental Rights for the sake of their freedom, liberty, and equality. Then after, lastly when India gained independence, the framers took the idea of these rights from the USA and made a perfect set of Fundamental Rights wonderfully arranged. They were: Right to Equality, Right to Freedom, Rights against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, and Rights to Constitutional Remedies. In the course of time, popularly three Constitutional Amendments led to the birth of a few new rights and the demise of the older ones. Now, we either need to increase the number of rights for governing different sectors of necessity or to make a wide and explicit governing area of a particular Fundamental Right.

KEYWORDS: Fundamental Rights, Constitution, Constitutional Amendments, State, Independence, Citizens, Article, Liberty.

INTRODUCTION

The group of certain rights that are the foundation of our Constitution and is universally present in most of the democracies around the globe. These are the fundamental rights. It protects every citizen living in the territory irrespective of their caste, colour, creed, race, religion, or sex. It bestowed the citizens with a blissful, respectful, and peaceful society. These rights are very fundamental base of our Constitution as they have given honorary opportunity to the citizens to live in a harmonious biosphere in which they can work for the development of the country in their own chosen lawful way. These rights are contingent in nature and individuals can seek justice if any of these rights are curtailed or snatched by any state authority. Moreover, The Preamble, also known as the introduction of the mirror to the Indian Constitution, was adopted on 26^th November 1949 and enforced on 26^th January 1950, with a vision for a state to secure equality, justice, and liberty of all the citizens along with promoting fraternity, unity, and integrity. These goals can only be attained if the citizens have these elementary rights. They are enshrined under the Part III of the Constitution of India from Article 12 to 35.

RECAPITULATING THE DEVELOPMENT OF FUNDAMENTAL RIGHTS

Sowing the seeds of the rights dates back to 1215, when the ruler of England King John issued a charter elaborating the rights and liberties of the citizens. The document can also be seen as the foundation of the modern democracy as it established the rule of law and gave the rights to the citizens to check and limit the powers of the king. It became the first ever document in the history to recognise the Fundamental Rights. Later on, came The Bill of Rights 1689, that extended and fortified the ideals and concept of the above rights and its applications are still in use.

Then just after the hundred years of the aforesaid bill, in France, as a consequence of poor harvests, drought, cattle death and heavy taxes, the price of the ordinary and regular goods, especially the bread went on a rise. When the feudalism and aristocracy by the clergy and the ruler Louis XVI created the hinderance in the protest of the poor and the peasants, the widespread demand for the revolution generated. The monarchs were executed and the democracy was set up. The concept of equality, liberty and fraternity was born that later on became the escort of any newly born constitution. Natural and sanctified rights of the human was declared in France Declaration of Rights of Man and the Citizen, 1789.

After the introduction of these two rights when the Americans get liberated from the rule of despotic Britishers, they were so conscious about their recently glorified winning over their rights of religion, media and speech, natural rights, seizures and warrantless findings. Therefore, they introduced ‘The American Bill of Rights’ that was drafted by James Madison that was further adopted in 1791. Their Constitution has ten amendments and only these became the law of the land.^[1] The idea of Fundamental Rights has been taken from this Constitution only. During the era of post-World War II, the United State General Assembly in 1948, adopted the Universal Declaration of Human Rights that is a universal global organisation that protects the fundamental as well as the human rights of the people all over the world.  

In India, the history of the Fundamental Rights dates back to the struggling phase of the independence of India, where the Constituent Assembly working day and night was turning pages of all the best constitutions of the world for the framing and drafting of the lengthiest Constitution on earth. Even before that, at Lahore Session 1929, our first Prime Minister Pt. Jawaharlal Nehru passed a resolution that promised to grant Fundamental Rights to all the citizens. Finally, after the independence on 26^th January 1950, we adopted the rights in the form of a part from its whole,  the Constitution. 

DETAILED ANALYSIS OF THE FUNDAMENTAL RIGHTS OF INDIA

Article 13 of the Supreme Law of Land talks about the validity of the laws that are derogatory to any of the fundamental rights. So, such inconsistent laws and Constitutional Amendments shall be void if it violates any provision of Fundamental Rights. Unlike any other legal or birth rights, they are protected by the Constitution and the Supreme Court being the guardian of it.  

At this moment of time, the Constitution of India has enshrined us with six fundamental rights:

• Right to Equality (Articles 14 to 18)

Article 14 gives anybody equality before the law and equal protection of law within the territory by the state. But, exceptionally the President, Governors, Members of Parliament, Foreign rulers, ambassadors or diplomats are sometimes not answerable to the courts and may enjoy immunity from the civil and criminal proceedings. Article 15  states that there will be no discrimination against any citizen on the basis of their religion, caste, sex or place of birth. However, the state can work for the upliftment of the children, women and backward sections of the society where it seems needy by providing them free education and reservation. Article 16 provides the equal opportunity in the appointment or employment in any public office or state services to all the citizens. Practicing untouchability in any form including entering in any place of worship, hotel and shop or refusing to admit persons in hospitals or educational organisations is forbidden by the law and is envisaged in Article 17. Abolition of titles, provided in Article 18 prohibits the state from conferring any title to any citizen or foreigner holding an office of profit under it except an academic or military distinction. Moreover, it prohibits a citizen from accepting any title from even a foreign state.

• Right to Freedom (Article 19 to 22)

Article 19 guarantees the citizens right to freedom of speech and expression; right to assemble peacefully without arms; right to form political parties, association, unions or trade unions,  co-operative societies, clubs, companies, partnership firms; right to move freely, reside and settle  throughout the whole territory; right to practice or carry on any trade, business or occupation. Article 20 grants protection against any arbitrary and excessive punishment than prescribed by the law to any citizen or foreigner if accused. No person shall be compelled to be a witness against himself or and shall be prosecuted only once for the same offence if found guilty. Article 21 declares that no person, whether citizen or foreigner shall be deprived of personal liberty or a dignified life. Article 22 grants protection to the people who are arrested or detained either punitively or preventively. In the case of ordinary Punitive laws, rights are: knowing the grounds of arrest, to be consulted and defended by a legal practitioner, to be produced before a magistrate within 24 hrs. excluding the journey time and to be released after 24 hrs. unless further detention. However, in the case of preventive detention laws, the detention can’t be extended more than three months unless there is a sufficient cause.

• Right against Exploitation (Article 23 &24)

Trafficking of human beings and forced labour are prohibited and declared as punishable offence under Article 23 whereas, Article 24 abstains the employment of minor below the age of 14 yrs. in mines, factory or any hazardous work like construction, railways, etc.

• Right to Freedom of Religion (Article 25 to 28)

Under Article 25, everyone is free to practice, propagate and profess any religion of their choice whereas, Article 26 states the freedom to manage their own religious affairs but within a certain extent, not affecting the public morality and health. Article 27 talks about the freedom to pay taxes for the maintaining or promoting any religion or religious workings. However, it doesn’t allow the state to collect citizen’s money in the form of tax for the promotion of a particular religion. No religious edicts under Article 28, shall be given by the educational organisations that are fully funded by the state and even shall not apply to those that are governed by the state but established under a trust or charity, compulsorily needs to give the religious marks.

• Cultural and Educational Rights (Article 29 &30)

Any citizen living in any part of the nation having unique culture, tradition, custom and language have the right to protect and preserve it under Article 29. Preserving the rights of the minorities based on religion and language, the state won’t deny the admission of any student in any institutions run by them discriminating on the basis of  race, religion, caste and language. The minorities also have the edge over setting up their own educational institutions and imparting education in the language of their choice as per Article 30.

• Right to Constitutional Remedies (Article 32)

The Constitution of India under this Article, allow the citizen seek justice by permitting them to approach the Supreme Court if their fundamental rights are violated by the state action. This right empowers every other right by giving them a legal status. Supreme Court along with the High Courts are empowered to issue writs under the Article 32 and 226 respectively for saving the rights of the people. The five kinds of writs that can be evoked are as follows:

• Habeas corpus – meaning “have the body of” is issued for the person who has been illegally detained.
• Mandamus – meaning “we command” is issued when a government official denied or failed to perform his duty. This writ acts as an order for him to make him perform his task properly as commanded by the honourable court.
• Prohibition – this writ prohibits the action of a lower court (by the order of a higher court) if it exceeds its jurisdiction in the matter where it is not entitled to.
• Certiorari – it means “certified or being informed”. It is issued from a higher court to a lower court, when the higher court wants to transfer a pending case to itself or revoke the order made by that lower court.
• Quo-Warranto – it means “on what authority”. This writ is issued to probe the claim by a person for holding a public office.

MOST POPULAR AMENDMENTS RELATED TO THE FUNDAMENTAL RIGHTS

Over the years, many amendments have brought certain changes in the working of   Fundamental Rights and have helped in bringing a uniform collection of rights according to the present needs in the country. The most prominent ones are as follows:

1. 42^nd Amendment (1976) – This amendment is popularly known as “The Mini Constitution”. It added the words socialist and secular along with sovereign, democratic and republic, also integrity along with unity in the Preamble of the Constitution. The parliament was given unlimited powers under Article 368 and the powers of the High Courts regarding judicial review was curtailed.
2. 44^th Amendment (1978) – The act nullified nearly all the provisions of the aforesaid act. The word ‘internal disturbance’ got replaced by ‘armed rebellion’. Right to Property was removed from the list of Fundamental Rights that was previously placed as Article 31. Right now, it has been placed under Article 300A as a constitutional legal right.
3. 86^th Amendment (2002) – Article 21 declares that the State shall compulsorily provide the free of cost education to the children from 6yrs. of age to 14 yrs. thus, making it a Fundamental Right. Earlier, this provision was enshrined under Article 45 in Part IV.

CONCLUSION

Therefore, it can be concluded that the Fundamental Rights are among the paramount aspect of the Constitution of India just like the doctrines of basic structure that includes- rule of law, separation of powers, independent judiciary, free and fair election, welfare state, etc. Both of them can override any other law. The pros of our Fundamental Rights include the protection of one’s liberty and respect, protection of religious or linguistic minorities and providing equality and freedom, promoting secularism, culture, etc. However, it is needed in the modern and developing world to make the scope of fundamental vast by explicitly mentioning the sub-rights included in a particular Fundamental Right, giving rights specifically to the poor socio-economic classes, and prompt justice to the aggrieved people.

Reference(s):

^[1] ‘History Of Fundamental Rights Included Under Part III Of The Constitution’ <https://legalserviceindia.com/legal/article-9827-history-of-fundamental-rights-included-under-part-iii-of-the-constitution.html> accessed 5 July 2024.